272 P. 173 | Kan. | 1928
The opinion of the court was delivered by
This is an action by certain taxpayers on behalf of themselves and 120 others similarly situated (who will be spoken of herein as plaintiffs) to enjoin the sheriff and other county officials from levying on their property and collecting on certain tax warrants in the hands of the sheriff for the reason that the taxes had been paid. The court rendered judgment for plaintiffs, and the defendants have appealed!
The facts are not controverted, and may be briefly stated as follows: Plaintiffs reside in or near Ada, in Ottawa county. Each had property subject to taxation for the year 1926 upon which taxes were duly levied and assessed. The tax rolls were made up by the county clerk and delivered to the county treasurer November 1. The Ada State Bank had been duly designated by the county commissioners as a depositary of money for the county treasurer and had given its bond in the sum of $10,000 to secure such deposit. The treasurer- had money belonging to the county on deposit in that bank. Although not specifically authorized to do so, it had been the practice of the county treasurer each year, for several years, for convenience in paying and collecting taxes, to make a list of the property subject to taxation in the vicinity of Ada and the amount of
In the court below the defendants offered no evidence, but their counsel stated: “We have admitted all through the case that money was paid into the -Ada State Bank by the various plaintiffs in the amount of $6,648.58, and that the same was placed on the books of the bank to the credit of the county.” A deposit slip, in duplicate, was made, showing such deposit to the credit of the county treasurer, and this deposit slip, together with the books and receipts showing who had paid the taxes and the property on which payment had been made, were sent by the Ada State Bank to the county treasurer, and were received by him on December 22.
Because of the rush of work in his office, and similar reports coming in from other banks, the county treasurer did not get time to go through this report and list the persons who had paid taxes until January 13, 1927, on which date the proper entries were made on his books, showing the money received and deposited to his account in the bank at Ada, the same was reported to the county clerk, where the proper entries were made, and the treasurer marked on his tax roll in the proper place opposite the entry of the amount of taxes charged to each of the persons who had so paid to the bank an entry that the taxes were paid, and the originals of receipts sent him by the bank were signed by the county treasurer. These signed receipts were retained by the treasurer in his office. On January 11 the county treasurer, anticipating, or having learned, that the amount deposited to his credit on December 21, added to the amount which he had on deposit there, would make his deposit larger than
Under the terms by which it was designated a county depositary, the bank paid interest monthly at the rate of two per cent per annum on the daily balances. On December 31, 1926, it credited the treasurer’s account with $11.39 and sent him a deposit slip therefor. This included interest on the $6,648.58 deposited to the credit of the treasurer December 21 from that date to the end of the month.
The Ada State Bank closed January 24, 1927, and was taken charge of by the bank commissioner and later liquidated. On March 3, 1927, after the bank was closed, the county treasurer erased the entries which he had made on his tax rolls, showing taxes paid by plaintiffs, attempted to disclaim credit for the deposit of December 21, 1926, to his account in the Ada State Bank, charged off the amount of that deposit on his books, or changed them to show that he had not received it, and caused corresponding entries to be made by the county clerk in his records. He refused to deliver to plaintiffs the signed receipts in his office showing that their .taxes had been paid, and treated the taxes as not having been paid, and in due time issued tax warrants thereon, which tax warrants were delivered to the sheriff for levy and collection, when this action was brought.
The real question in this case i's: Had plaintiffs paid their taxes to the county treasurer in conformity, or at least in substantial conformity, to our statutes pertaining to such payments?
Appellants argue that the county treasurer is the collector of taxes (R. S. 19-515); that taxes are payable in money only (Judd v. Driver, 1 Kan. 455); that the treasurer, in collecting taxes, acts in a governmental, not in a proprietary, capacity (Seward v. Fisken, 122 Wash. 225); that the treasurer had no legal authority to send duplicate tax rolls and blank tax receipts to the bank for convenience in collecting taxes; that any practice or custom in that regard is not binding on the county, and that the bank was necessarily the agent of the taxpayer to transmit for him his taxes to the county treasurer. (Haynie v. Bryant & Parker, 117 Okla. 138; Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569; Scheafer v. McFarland, 49 S. D. 605; 26 R. C. L. 377, and cases there cited.)
This is not a case in which the county treasurer was given by a taxpayer a check or draft which was not paid on presentation, as in Barnard v. Mercer, 54 Kan. 630, 39 Pac. 182, and allied cases collected in 44.A. L. R. 1234. Neither is it a case where checks were given on an insolvent bank, as in Beloit Building Co. v. Staley, 118 Kan. 141, 234 Pac. 57. Here there is no intimation in the evidence that the Ada State Bank was insolvent, or in failing condition, on December 21, 1926, nor at any time prior to its closing its doors January 24, 1927.
Appellants cite and rely upon Skinner v. Mitchell, supra. There is at least one outstanding material difference between that case and the one before us. In that case the bank was not a county depositary. This is clear from the opinion in the case, also from
We have examined all authorities cited by counsel. We deem it unnecessary to further analyze them. The judgment of the court below is affirmed.