The opinion of the court was delivered by
Kingman, C. J.:
This case involves the single'question of whether the ten-per-cent, penalty added to taxes for non payment on the 10th day of January, becomes a part of the taxes. This was decided in the case of The State, ex rel. Farnham, v. Bowker, 4 Kan., 114" court="Kan." date_filed="1866-07-15" href="https://app.midpage.ai/document/state-ex-rel-farnham-v-bowker-7882112?utm_source=webapp" opinion_id="7882112">4 Kas., 114, wherein the learned judge delivering the opinion of the court says, “ that the penalty became and by operation of law, was a part and parcel of the taxes due.” That decision is satisfactory, and disposes of this case. The judgment is affirmed.
All the Justices concurring.
—The foregoing opinion was filed on the 15th of November 1872, and on the 22d of January 1873 the plaintiff filed another petition in error in this court, for the review of another order of the district court. On the 23d of November 1872 the Railway Company paid to the county treasui’er of Saline county the sum of $10,883.13, being $9,893.75 original taxes, and $989.38 ten-per-cent, penalty. Said compaxxy thereupon applied to the district court of Saline comity, (the November Term thereof for 1872 being then in session,) for a perpetual injunction, as prayed for in its origixial petition, restraining the collection of all the taxes levied upon the *323valuaton of its property for the year 1868 in excess of the valuation of $10,000 per .mile. (The county board had illegally increased • the valuation from $10,000 per mile to $16,000 per mile, or from the aggregate of $320,000 to $512,000, thereby increasing the taxes from $9,893.75 to $17,322.25. 8 Kan., 558" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/kansas-pacific-railway-co-v-russell-7882879?utm_source=webapp" opinion_id="7882879">8 Kas., 558-561.) The defendants, the comity treasurer and sheriff, resisted plaintiff’s application for a perpetual injunction, claiming that as the Railway Company had not paid said $9,8 93.75 taxes and the ten-per-cent, penalty thereon within the time fixed by the order of the district court, (June 15th 1872,) the company had lost all right to have any portion of the taxes enjoined; and the district court overruled and denied plaintiff’s motion for such injunction, and dismissed plaintiff’s petition. The Railway Company excepted, and brought the record here for review. The case was heard at the January Term 1873, and the opinion was filed April 9th, 1873. (No briefs.)
E. W. Dennis, and McClure & Hwmplvrey, for plaintiff.
J. G. Mohler, county attorney, for defendant.
The opinion of the court was delivered, by
Valentine, J.:
This is the third time that this action has been before us; or, perhaps, more properly speaking, it is the third time that questions connected with the subject-matter of this action have been brought to this court. The action as it is now presented involves principally the construction of an order made by this court when the case was first presented to us, (K. P. Rly. Co. v. Russell and Amrine, 8 Kan., 558" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/kansas-pacific-railway-co-v-russell-7882879?utm_source=webapp" opinion_id="7882879">8 Kas., 558.) Said order reads as follows:
“The case will therefore be remanded to the district court of Saline county, with the instruction that if the plaintiff shall within such reasonable time as shall be fixed by said court pay the taxes due upon the basis of the valuátion fixed by the county clerk, to-wit, $10,000 per mile, then a perpetual injunction shall be decreed as prayed for; otherwise the judgment heretofore entered in favor of the defendants shall be affirmed.” (Opinion, 8 Kan., 565" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/griffith-v-carter-7882880?utm_source=webapp" opinion_id="7882880">8 Kas., 565.)
*324In pursuance of this order the district court of Saline county made an order, that “if the plaintiff should on or before the 15th of June 1872 pay to the treasurer of Saline county the taxes due on the basis of $10,000 per mile the collection of said taxes should be perpetually enjoined.” In pursuance of these orders, and within the time limited, the Railway Company tendered to the treasurer of Saline county the full amount of the taxes as they were originally assessed on a basis of $10,000 per mile valuation, but did not .tender the ten-per-cent, penalty which had at that time accrued under the statute which requires a ten-per-cent, penalty to be added on the 10th of January of each year to all delinquent taxes. (Gen. Stat., 1045, § 79.) The company claimed that the said order of the supreme court did not require them to pay said ten-per-cent, penalty. The defendants on the contrary claimed that it did. . The question was brought to this court, and we decided that the ten-per-cent, penalty when added became a part of the taxes, and was therefore included in said order and must therefore be paid. (Ante, p. 322.) This decision was made after the 15th of June 1872, to-wit, on November 15th 1872. On the 23d of November 1872 the railway company paid all said taxes, together with the ten-per-cent, penalty, on a basis of $10,000 per mile valuation. The defendants however then claimed that the railway company had forfeited all rights that it had obtained under the orders of this court and the district court by not paying said ten-per-cent. penalty on or before the 15th of June 1872, as ordered by the court; and they further claimed that by said forfeiture on the part of the railway company the defendants obtained the right to collect certain other taxes and penalties from the railway company which had previously been declared valid by the district court but had been declared illegal and void by the supreme court. Whether the defendants can now under all these circumstances collect all these illegal and void taxes from the railway company, is the real question before us. The defendants are attempting to-collect them, and the railway company as plaintiff is seeking an injunction to *325restrain their collection. All the difficulty in this case has grown out of a misunderstanding of the said order of the supreme court. The order was made with the intention that it should include all legal taxes (and the penalty we think was a part of such taxes) due from the company for the year for which these taxes were levied ; and herein the plaintiff was mistaken. The order was also made in the spirit of a court of equity, with the intention that both law and justice should be speedily administered, and not with any intention of subserving a grasping disposition on the part of any person. It was not made with the intention of prohibiting either party from litigating other questions; nor was it made for the purpose of fixing enormous penalties in the form of illegal taxes upon the party who should take the time to litigate some question which might arise under the order, and a question which such party had a right to litigate. In this respect the defendants were mistaken. It was not reasonable that the railway company should be compelled to pay said penalty before it had time to have the question determined judicially and specifically whether it was bound to pay the same, or else be compelled to pay an enormous illegal tax. The time limited, for the payment of said penalty should have been some reasonable time after the question of its payment ceased to be in litigation. And although the time fixed by the district court was earlier than this, and seemed reasonable when so fixed, yet when it appeared that such time was not reasonable the district court should, in the spirit of a court of equity, have extended it. The penalty was paid in eight days after the litigation in regard to it had ceased; and this was certainly within a reasonable time.
The judgment of the court below is reversed and cause remanded with the order that the injunction prayed for by the plaintiff be granted.
All the Justices concurring.