48 Kan. 471 | Kan. | 1892
Opinion by
These actions were brought against the board of county commissioners of Johnson county, S. R. Rogers, and S. R. Rogers as county treasurer, to refund certain taxes which it was claimed by the railroad companies were excessive and illegal, and had been demanded by the
It is contended by counsel for .the treasurer and the board of county commissioners that the tax law in relation to the 50 per cent, penalty attaches such penalty not only to the taxes in dispute, but also to the original taxes tendered, when it is
“ In cases where the county treasurer or sheriff shall, by injunction, be restrained from the collection of taxes due upon personal property, and the injunction be dissolved, the county treasurer or sheriff shall collect the original taxes and penalties, with interest from the date of the injunction at the rate of 50 per cent, per annum.”
It is argued by counsel fof the railroad companies that this statute does not refer to unpaid or defaulted taxes, but only to those which the officer is restrained from collecting; that the penalty only attaches to the taxes enjoined. The rule is well settled in this state, that where an injunction has been applied for to restrain the collection of a tax partly legal and partly illegal, the court has made the payment or tender of the legal taxes a condition precedent to the granting of the injunction. This was doubtless done in the original suits, in which the taxes enjoined were in part sustained. This court has said, too, that where an assessment is excessive, an injunction will not be granted until the amount of taxes upon a reasonable and fair valuation of the property is first paid or tendered. (Wilson v. Longendyke, 32 Kas. 267.)
We think it safe to say that from these well-settled rules, requiring a payment or tender of the legal taxes due before an injunction will be granted, we should deduce the further rule that the different items going to make up the aggregate amount of the taxes are divisible, as well as the whole amount charged upon the tax-rolls. If the rule of divisibility be the correct one, and we think it is, the treasurer might have received the amounts tendered by the railroad companies. If he had accepted the same, it could hardly be claimed that the
By the Court: It is so ordered.