29 Kan. 460 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought by the Kansas City, Fort Scott & Gulf railroad company against John
“ It is agreed by the parties that the following are and may be treated and considered as the facts in this action:
“1. The plaintiff is a corporation, authorized to operate and liable to pay taxes on the lines of railroad described in the petition herein.
“2. The defendant McMurray was sheriff of Crawford county, Kansas, during the years 1881 and 1882, and the defendant Tontz was treasurer of said county during said years.
“3. Taxes for the year 1881 were charged on the tax rolls of said Crawford county against the property of the plaintiff, aggregating the sum $10,206.46, of which amount the plaintiff has paid $9,808.70, and holds proper receipts therefor. The amount in dispute in this action was charged and levied as a ’township road tax, and-aggregates the sum of $397.76.
“4. In the amount of taxes ’paid by the plaintiff is included a road tax levied under § 21, ch. 89, [108,] Laws 1874, (§5052, Dassler’s [Comp. Laws] 1879,) and worked out and paid by the plaintiff in compliance with succeeding sections of said law. The disputed tax was levied under § 22, ch. 110, Laws 1868, (Dassler’s [Comp. Laws] 1879, § 5988,) and it is under this law that the county claims the tax as valid. Plaintiff claims the disputed tax was levied under § 42, ch. 89, Comp. Laws 1879.
“5. The disputed tax -was levied July 9,1881, and a copy of the record of such proceedings, as subsequently made, is hereto attached, marked ‘ Exhibit A,’ and made a part hereof. The disputed tax was'levied at the July meeting of the county commissioners in 1881, by the township trustees, with the advice and concurrence of the county commissioners, but no written note or memorandum of the proceedings about said tax was made or signed by any of the county commissioners or officers until January 7, 1882, when the record was made which is appended hereto.
“6. At the proper time the plaintiff paid all taxes levied against its property, excepting that in dispute in this action.
“7.- Because of the failure of plaintiff to pay the disputed tax, the defendant treasurer at the proper time, to wit, January 16, 1882, issued a warrant for its collection to the de*462 fendant sheriff for collection by distraint. On January 24, 1882, the plaintiff commenced this action, and obtained a temporary order of injunction restraining the collection of such disputed tax.”
We do not think that it is necessary to give a copy of “Exhibit A” above referred to, as the agreed statement of facts above quoted sufficiently sets forth the substance of the same. Upon this agreed statement of facts the court below made a general finding in favor of the defendants and against the plaintiff', and rendered judgment accordingly; and the plaintiff, as plaintiff in error, now brings the case to this court for review. ’
It appears that there are three statutes now in force (provided they are all valid) which authorize the levy of road taxes: First, § 22 of ch. 110 of the General Statutes o^ 1868, being §22 of the act relating to townships and township officers, (Comp. Laws of 1879, ch. 110, §22;) second, §1 of eh. 174 of the Laws of 1872, being §1 of an act entitled “An act in relation to road districts,” (Comp. Laws of 1879, ch. 89, ¶ 5073, §42;) third, § 21 of ch. 108 of the laws of 1874, being § 21 of the act relating to roads and highways, (Comp. Laws of 1879, ch. 89, ¶ 5052.)
The plaintiff claims that the tax in dispute was levied under § 1 of ch. 174 of the Laws of 1872; and further claims that this section has no force or effect at the present time, for two reasons: First, that it is unconstitutional, being1 in contravention of that portion of §13, art. 2 of the constitution of Kansas, which provides that “ No bill shall contain more than one subject, which shall be clearly expressed in its title; ” second, that it was repealed by implication by said § 21 of ch. 108 of the Laws of 1874.
Now for the purposes of this case it may be admitted that said §1, ch. 174 of the laws of 1872, is void and of no effect, for it is admitted by the defendants in this case that the tax was not levied under that section ; but as to whether the section is in fact unconstitutional or not, or as to whether it has in fact no force or effect, we shall express no opinion.
We now come to the last question in the case, which is, whether the neglect of the county clerk and county commissioners to make any entry on the commissioners’ record of the action of the county board and of the township trustee in levying the tax, renders the tax utterly null and void. No other irregularity than this is claimed. It would seem that the tax was properly levied, and was properly reported to the county clerk, and was properly entered on the tax roll of the county, and that the tax roll was properly placed in the hands of the county treasurer, and that the county treasurer attempted in a proper manner to collect the same. It would seem that this tax was regularly on the county tax roll at the time when the plaintiff paid its other taxes; but that, for the irregularity above mentioned and the other matters above mentioned, the plaintiff refused to pay the tax. Now although no record of the levy had yet been made, yet the plaintiff might have ascertained that a levy had in fact been made, if it had made any inquiry; and the facts that the county clerk had entered the tax upon the tax roll of the county and placed the tax roll in the hands of the county treasurer for collection, and that the county treasurer was then endeavoring to collect all the taxes entered thereon, were sufficient to put the plaintiff upon inquiry.
We think that the tax was at all times valid, after the tax roll was placed in the hands, of the county treasurer for collection ; that the mere fact that no entry of the levy of the tax had yet been made is not sufficient to invalidate the tax; and we also think that the county commissioners .and the county clerk had the right to make an-entry of the levy six months after the time when the levy was made, as they did in this case, and that the record o’f the levy as thus made would be evidence of the levy. Entries of public proceedings are often made some considerable time after the proceedings have in fact taken place. Sometimes days, sometimes
Of course no entry, nune pro tune or otherwise, can be made of a proceeding that never took place. It is only where the proceeding actually occurred that an entry can be made. Now in the present case it is admitted that the levy of the tax in dispute was actually made, and that the only irregularity connected with the levy was the mere failure to enter the levy at the time it was made. We think, however, that the making of the entry six months afterward cured this irregularity.
The judgment of the court below will be affirmed.