2 Kan. App. 411 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
Action in mandamus to compel the plaintiff in error to pay to the defendant in error certain sums of money collected by him, to wit, interest and penalties upon delinquent taxes levied by the defendant in error for special sidewalk improvements. The facts are : In 1882 the city of Frankfort, by ordinance, caused certain sidewalks to be built within its corporate limits, and in payment therefor issued to the contractor its warrants or scrip, bearing 10 per cent, interest from January 1, 1883. In 1884 the city made an assessment for these improvements upon lots 10 and 11, in block 95, and lot 24, in block 27, for the sum of $94.66 per lot; and thereafter this assessment was certified to the county clerk of Marshall county to be, and was, placed upon the tax-roll of the county to be collected. These assessments were unpaid, and the property was offered for sale at an annual tax sale. There being no purchaser, they were bid off by the county treasurer, September, 1, 1885. In 1887, June 16, one George A. Walker offered to, and did, pay the amount due thereon, and certificates were issued by the county treasurer, and assigned to him by the county clerk. The amount received- by the county clerk included all penalties, costs, and charges, and interest up to June 16, 1887. Of the amount received, the county treasurer turned over to the treasurer of the city of Frankfort the sum of $283.98, being the actual or face amount of the assessments made upon this1 property, retaining the interest and penalties.
The question presented for our consideration has never been passed upon in this state, and we have been unable to find among the vast number of adjudications upon the subject of taxation anything in line with it under statutes like ours ; and only after careful examination of the system and theory of taxation, as shown by the statutory enactments of this state from its earliest history to the present day, have we been able to arrive at a conclusion that is entirely satisfactory to us. If, in connection with the system of taxation, we trace the history of cities of the third class in Kansas, we find that they came into existence under the act of March 1, 1869, which went into effect July 12 of that year; and prior to that time, under chapter 108, General Statutes of 1868, incorporated towns and villages were the municipalities of a corresponding grade (out of these cities of the third class were created), and they were governed by a board of trustees with certain powers expressly conferred upon them ; among others, “ to build sidewalks, and to recover from the owner and occupiers of the adjacent lots the full expense thereof, by action of debt in the name of the corporation.” Now, it is fair to presume that
But the plaintiff in error contends that ‘ ‘ the law for the assessment, collection and disbursement of taxes, penalties and interest thereon must be found expressly written in some statute, and is not to be inferred from what is written or from what is not written.” Let us apply this rule to a few sections of the tax law and notice the result: f íAll taxes and assessments levied under authority of this act shall be certified to the county clerk . . . to be placed upon the tax-roll for collection,” etc., etc. (Gen. Stat. 1889, ¶ 968, cities of the third class.) Here we find ‘ ‘ expressly written ’ ’ in the statutes that taxes and assessments shall be collected. Again : “All taxes collected by the county treasurer are to be paid over to the city treasurer as fast as collected,” etc., etc. (Gen. Stat. 1889, ¶969, cities of the third class.) Now, under the rule adopted by the plaintiff in error, what becomes of the assessment after it is collected? There is nothing “expressly written” in the statutes,
Our attention is specially called to the proviso in paragraph 6940, General Statutes of 1889, “Taxation ” ( and great stress is laid upon it) , which reads : ‘ ‘Provided, All penalties shall be credited to the county fund, and all rebates charged to the same fund. ’ ’ Now, if we apply the rule requested by plaintiff in error to this, we find that the only thing expressly written is in reference to the penalties and rebates. There is not the slightest reference therein to interest, and certainly under this clause there is no authority either to charge or credit the county fund with any interest. Nor does it in any manner indicate how the interest shall be disbursed, and it is a very significant fact that, in all the legislation we have had iii this state upon the subject of taxation, the law has always remained silent as to the disbursement of interest, clearly indicating that the legislature has always considered it as incident to and following the principal. So, we fail to find anything “expressly written” in any statute directing — much less authorizing — the county to retain the interest; and under what rule of law or equity it can be claimed that the county shall be benefited by the misfortune of the municipalities within its limits the plaintiff in error has fails*! to call our attention to, and we have been unable to find it. Is it to compensate the county? If so, for what? It has 'been paid all its costs, under a special pro
But the plaintiff in error contends that these lots have been sold to the county, and consequently the county is entitled to the interest up to the time they are redeemed. We think not. In one sense it is a sale; more properly speaking, a disposition of them for a time; certainly not a sale in the strict acceptance of the term,-which implies a consideration paid. The county does not become possessed of anything more than it originally had, nor has it parted with one cent, or become liable to any one for even that amount. It does not in any respect stand in the position of a purchaser. It has no option, no choice in the matter. It merely by statutory enactment has placed in its name that which no one else would purchase. Further than this, it could not purchase if any one else desired so'to do, but is prohibited by law from so doing. It does not even receive the evidence of title. No certificate is issued to it, nothing to show that it has any more interest in it at the date of the sale than it had on the 1st of November, when it was placed on the tax-roll, viz., the record of the treasurer’s office. It is merely transferred from, one record to another to await purchase or redemption, while, on the other hand, the purchaser receives a certificate, which, in time, entitles him to a deed. He becomes the owner. His title is only defeasible by redemption, and that which he purchases will ripen into an absolute title. This ' can ■ never happen to the county. Paragraph 6960 provides : ‘ ‘ The person ... offering to pay the taxes and charges . .• . shall be the purchaser.” Paragraph 6962: “The county
The judgment of the district court will be affirmed.