7 Kan. App. 739 | Kan. Ct. App. | 1898
This action is brought by the plaintiff to require the defendants, as the'board of county commissioners of Morton county, to levy a tax to pay a judgment held by the plaintiff against that county. An alternative writ has been allowed, issued, and ■served, and defendants have filed a general demurrer to.it, which will be regarded as a motion to quash. The recitals of the writ show that on June 5, 1895, plaintiff recovered a judgment against Morton county upon county warrants for the sum of $2337 ; that in August, 1895, a tax of three and one-half mills was levied by the board of county commissioners to apply on the judgment, such levy having been ordered when the judgment was entered; that from the proceeds of said tax, payments upon the judgment aggregating $1044 in 1896, and $43.84 in 1897, have been made ; that in April, 1.897, a demand was made for an additional levy, which demand was refused on the ground that the levy already made, if paid in full,- was sufficient to meet the judgment; and that the levy already made is in fact sufficient to produce sufficient funds to pay the judgment. The prayer of the application and the command of the alternative writ are for a levy of three and one-half mills on the dollar upon all of the taxable property within Morton county to pay the judgment.
All questions as to the sufficiency of the demand upon the board of commissioners prior to the commencement of the action have been waived by counsel. It has also been agreed in open court that the application and writ shall be treated as applying to -the year 1898, instead of 1897.
Counsel for the defendant board contend that the .
“1. A levy having been made to pay the judgment in full,£ no one is in default and the taxes are in course of collection.’
“2. The provisions of section 7 of chapter 249, Laws of 1891, requiring county warrants to be paid in the order of their presentation and registration, have the same force and effect after judgment as before, and the awarding of a peremptory writ of mandamus in this cause would be in violation of the law as specified in said chapter.
££ 3. Where the board of county commissioners in a county having a valuation of less than five million dollars make an annual levy in each year of one per cent, on the dollar as a tax for the current expenses of said county, it is not in default so that it may be compelled to make an additional levy, or such a levy as to carve out of the general rate for current expenses a specific tax, or any 'tax to pay a judgment obtained upon warrants issued by the county for current expenses.
££ 4. The alternative writ and the application therefor are fatally defective in not averring that the defendants had at any time failed to levy up to the maximum rate established by law for current expenses.
££ 5. The limitations of the law as to the rate of taxation and as to county expenditures clearly indicate that each year is an entirely separate and distinct taxing period.”
For the convenience of the defendants’ counsel, permission was given for the filing of separate briefs. An additional brief on the part of the plaintiff was thus called forth. The various propositions are discussed with force and clearness. We are fully advised thereby as to all the features of the controversy. We shall depart from the order stated in discussing the claims of counsel.
It is insisted by counsel for the defendants that a
Various objections to this position appear, one of the most important being that under the provisions of chapter 249, Laws of 1891, county warrants, if net paid when presented, are to be marked "not paid for want of funds,” and duly registered, and are thereafter to be paid when funds become available in the order of their registration, after being duly "called” by the treasurer. The suggestion that this law intends that there’shall be a separate registration for each year is unique and ingenious, and might well receive consideration by lawmakers; but we think that this view was not in legislative contemplation when the law was enacted.
As counsel for both parties are agreed upon the proposition that merger of county warrants into a
The fourth contention of counsel for defendants seems to be correct so far as the prayer of the original application for the writ herein is concerned. In King v. Board of Comm’rs of Grand County, 77 Fed. Rep. 586, in which the plaintiff sought to obtain a writ of mandamus compelling the levy of a special tax, in the opinion of the court, by Thayer, J., it is said:
‘ ‘ The petitioner did not aver that the defendants had at any time failed to levy up to the maximum rate established by law for the ordinary county expenses, and, in the absence of such an averment, we must presume that the board of county commissioners had performed its duty in thaft regard, and that it had therefore levied all the taxes that it was permitted, by the laws of the state, to levy for that purpose.”
The doctrine stated applies to the present case.
As to the first claim of counsel that “ a levy having been made to pay the judgment in full, no one is in default, and the taxes are in due course of collection,” we think it untenable. After the tax year of 1895 had closed with the sale of lands in September, 1896, for the delinquent taxes of the levy of 1895, the tax was not, strictly speaking, any longer in “ process of collection.”
We look upon this judgment as a continuing obligation of the county which it ought to discharge, and which was not discharged by the levy of 1895. (High on Extraordinary Legal Remedies, § 379.) Legal obstacles appear to be in the way of another special levy. We discover nothing, however, that necessarily interferes with the ultimate payment of the judgment.
It is ordered that such peremptory writ of mandamus issue in this action commanding the defendants, as the board of county commissioners of Morton county, and their successors, to levy, at the. time provided by law for making the tax levy in said county, ten mills on each dollar of the assessed value of such property, and to make a like tax levy in and for each year thereafter until the judgment of the plaintiff is fully paid; and that the balances due and unpaid upon the various warrants which formed the basis of the said judgment shall be paid in the same order, under the law governing the payment of warrants, as if the said warrants had not been reduced to judgment.