57 Kan. 240 | Kan. | 1896
Lead Opinion
This is an original proceeding in mandamus to compel the levy of a tax upon the property in Forrester Township, Ness County, for the payment of interest which has accrued upon refund
In this State each organized township is a body politic and corporate, with power to make all contracts that may be necessary and convenient for the exercise of its corporate powers, and in its proper name may sue and be sued. A township is generally spoken of as a municipality or municipal corporation, but, strictly speaking, every political subdivision of the state organized for the administration of civil government is a quasi corporation. In this respect they are placed on the same plane as counties and school districts, and in this Court, in determining the liability of this class of corporations for failure to perform some corporate duty, or for the neglect or misfeasance of its officers and agents, it has been held that counties, townships and school districts are not municipal corporations proper, and that their liabilities in this respect are not the same as incorporated cities, towns and villages. Beach v. Leahy, Treasurer, 11 Kan. 23; Eikenberry v. The Township of Bazaar, 22 id. 561; Comm’rs of Marion Co. v. Riggs, 24 id. 255; Freeland v. Stillman, 49 id. 197. In all these cases and for the purpose of determining their liabilities and powers, the distinction between municipal corporations proper and other public corporations has been made. In the broader sense and in common usage the term “municipal corporations” includes counties and townships. All public corporations, including counties, cities and
“A municipal corporation, in its broader sense, is a body politic, such as a state, and each of the governmental subdivisions of the state, such as counties, parishes, townships, hundreds, New England ‘ towns,’ and school districts, as well as cities and incorporated towns, villages and boroughs. Every one of these is properly susceptible of the,general appellation.”
The act has been in force for more than 17 years, and upon the theory that the title was good and the act valid a vast number of the townships of the State have issued bonds which have been negotiated in the money markets of the country and accepted as valid securities. The official reports show that the State, holds a considerable amount of such bonds, purchased
“The act under consideration in this case authorized this township ‘to issue new bonds,’ without any restriction as to their negotiability. This grant of power to a municipal body to issue bonds must be interpreted to give that body power to issue municipal bonds in the usual form of such securities. The usual — nay, it may almost be said the universal — form of such securities is that of a negotiable bond payable to bearer ; and, in our opinion, it was bonds in this form, and in no other, that the Legislature of Kansas had in mind and intended to give this township power to issue by this act. City of Cadillac v. Woonsocket Inst. for Sav., 58 Fed. Rep. 935; Ashley v. Supervisors, 60 Fed. Rep. 55, 66.” West Plains Tp. v. Sage, 69 Fed. Rep. 943.
In the same connection that Court held, and we think correctly, that the provision that new bonds should be issued to the holder of the old indebtedness does not require that he shall be named as payee in the bonds, and is not to be interpreted as a restriction Upon the negotiable character of the bonds issued. The issue and delivery of the bonds payable to bearer, which is the usual method employed, would seem to be a full compliance with that provision of the statute. Its main purpose was to require the officers to deal
The peremptory writ will be allowed.
Concurrence Opinion
(concurring specially). I entertain much doubt of the correctness of the decision of the majority as expressed in the first point of the syllabus. Heretofore the distinction between municipal corporations and quasi corporations has always been maintained by this Court. Beach v. Leahy, Treasurer, 11 Kan. 23, 28, 29 ; Eikenberry v. The Township of Bazaar, 22 id. 556, 561; Comm’rs of Marion Co. v. Riggs, 24 id. 255, 258; Freeland v. Stillman, 49 id. 197, 207. The title of this act is restrictive ; and following the plain course of reasoning pursued by Mr. Justice
In the second point of the syllabus I fully concur.
Dissenting Opinion
(dissenting). I concur in holding the title of the act sufficient to include municipal townships, but dissent from the proposition that the act of 1879 authorizes the issuance of negotiable bonds. Neither the word “negotiable” nor any of its synonyms is to be found in the act. The right of the plaintiff to recover in this case depends entirely on the negotiability of the bonds, there being no contention that the original bonds issued in aid of the Sugar-Mill Company were valid. The rule of law rendering the private maker of negotiable paper liable for the full face of it in the hands of a bona fide purchaser for value, even though he In fact received nO' consideration for its execution, is often exceedingly harsh, and is frequently invoked to perpetrate a fraud. It is still more harsh to impose a burden on the
‘ ‘ The modern doctrine, is to consider corporations .as having such powers as are specifically granted by the act of incorporation, or as are necessary for the purpose of carrying into effect the powers expressly granted, and as not having any other. The Supreme Court of the United States declared this obvious doctrine and it has been repeated in the decisions of the state courts. . . . As corporations are the mere creatures of law, established for special purposes, and derive all their powers from the acts creating them, it is perfectly just and proper that they should be obliged .strictly to show their authority for the business they assume, and be confined, in their operations, to the mode and manner and subject-matter prescribed.”
In Hill v. Memphis, 134 U. S. 198, Mr. Justice Field said:
'‘ The inability of municipal corporations to issue negotiable paper for their indebtedness, however incurred, unless authority for that purpose is expressly given or necessarily implied for the execution of other express powers, has been affirmed in repeated decisions of this court.”
And in Brenham v. German American Bank, 144 U. S. 173, it was held :
‘' Power in a municipal corporation to borrow money*251 not being nugatory although unaccompanied by the power to issue negotiable bonds therefor, it is easy for the Legislature to confer upon the municipality the power to issue such bonds ; and, under the well-settled rule that any doubt as to the existence of such power ought to be determined against its existence, it ought not to be held to exist in the present case.”
See also the dissenting opinion of Judge Caldwell in the case of West Plains Tp. v. Sage, 69 Fed. Rep, 952, cited in support of the opinion of the Court in this -case.
The act does not expressly authorize negotiable bonds to be issued. What necessity then requires the Court by construction and implication to confer -such power? Are not purchasers fairly dealt with if they are allowed to collect bonds rightfully and lawfully issued? What necessity is there for going further and saying that the law implies power, as was attempted in this case, to create a debt without lawful consideration? There is much in the act indicating that the Legislature did not intend that negotiable bonds should be issued and placed on the market, imposing an absolute liability whether with or without •a valid consideration. The bonds are to be issued •only to the holder of the prior indebtedness in pursuance of a compromise agreed on, and on the delivery .and cancellation of the evidences of the prior debt. He, of course, has full knowledge of everything affecting the validity of the bonds. It is with him, and him alone, that the township deals in making the exchange. A purchaser from him, of course, might not have full knowledge concerning the original transaction ; but section 4 of the act requires the County ■Clerk to keep a record of all bonds issued in the •county under the act, showing the date, number and