12 Kan. 140 | Kan. | 1873
This was an action brought by B. E. Hudson and David Johnson to restrain the collection of certain taxes levied against each of them, respectively, as stockholders, in “ThePerpetual Building and Savings Association of Atchison.” The first question arising in the case, is, whether the plaintiffs below, who are also plaintiffs in error, had any right to prosecute an action jointly for any such purpose. If this question should be determined in the negative, it would not be necessary to determine any of the other questions that have been presented to us, as, if we should affirm the judgment, then the present action will be finally disposed of. The judgment of the court below was, that the plaintiffs’ action should be dismissed at the plaintiffs’ costs — and this was just the judgment that should have been rendered if the plaintiffs had no right to sue jointly. In the court below the case was tried by the court, without a jury, upon an agreed statement of facts; and upon these facts, and the pleadings, the court was asked in the following words to decide the following questions, to-wit:
“ It is agreed that the questions to be submitted to the court for determination, are — 1st, Whether or not the shares of stock owned by plaintiffs, respectively, or the moneys paid into said corporation on said shares of stock, are subject to taxation after the said corporation has listed for taxation all the dues, fines and interest paid into said association at the March meeting thereof, as provided for by § 2, ch. 43, page 93, laws of 1870?
“ 2d, Whether or not, under this agreed statement of facts, the said plaintiffs are entitled to an injunction?
“ 3d, Whether or not, the said plaintiffs are entitled to sue jointly in the premises?”
This court is now asked to decide these same questions. The first two include several other questions. Is the stock, or the property, owned by said corporation, or both, taxable? Would it be valid to tax both the stock and the property of the corporation, or would the same be double taxation, unconstitutional and void? (Const., art. 11, § 1; Angell & Ames
Are the plaintiffs entitled to sue jointly in this action ? We think not. Their actions, if they have any, are several, and not joint. It is the several stock of each, and not the joint stock of both, that has been taxed in this case. The plaintiffs have no joint interest, or interest in common, in the matter. It can make no difference to Hudson how much Johnson is taxed on his ten shares of stock, nor to Johnson how much Hudson is taxed on his three shares of stock. Their interests .are entirely separate and distinct. It is true, the questions involved in the two cases are precisely alike; but the similar
“Sec. 253. An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same; and any number of persons whose property is affected by a tax or assessment so levied, may unite in the petition filed to obtain such injunction.”
This is the only section of the statute that is supposed to. give to the plaintiff any right to sue jointly, in an action like this: This section gives to every man a right to enjoin any illegal tax that may be assessed against him, whether the tax affects his property only, or his and others. And it gives to all persons whose property is affected by the same illegal tax the right to unite in the action to enjoin such tax. But it does not give the right to two persons to. unite in an action to enjoin two illegal taxes severally assessed against each of them. Where a tax is illegal in the abstract — illegal in and of itself — illegal, as applied to every owner of taxable property in the county or district, then every person who has property affected by such illegal tax, or so many of them as may choose, may unite in an action to restrain the collection of such tax. Thus, where a tax is levied to pay interest on illegal bonds, (Bridge Company v. Wyandotte, 10 Kas., 326,) or to pay illegal street assessments, (Gilmore v. Norton, 10 Kas., 491; Gilmore v. Fox, 10 Kas., 509,) all persons whose prop
The judgment of the court below must be affirmed.