42 Kan. 641 | Kan. | 1889
The opinion of the court was delivered by
The principal question involved in this case is with reference to the validity or invalidity of a certain purchase by the board of county commissioners of Pratt county, of certain real estate to be used for a poor-farm. The authority given by statute to the board of county commissioners to purchase laud to be used for such a purpose, and to levy taxes
“Sec. 25. It shall be lawful for the board of county commissioners, in the several counties in this state, whenever they may deem it advisable, to purchase a tract of land, in the name of their respective counties, and thereon to build, establish and organize an asylum for the poor, and to employ some humane and responsible person or persons, resident in their respective counties, to take charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called ‘Superintendent of the County Asylum” and when two or more counties shall have jointly purchased any tract of land and erected an asylum for the poor of their several counties, they shall have the power to continue such joint ownership during their pleasure; and it shall be lawful for the county commissioners of two or more counties to jointly purchase lands, erect asylums, or do other things proper and necessary for the relief and comfort of the poor within the counties forming such joint ownership as is by this act provided for their respective counties.”
“Sec. 29. To raise the sum necessary for the purchase of land, and the erection and furnishing of the buildings for such asylums, the board of county commissioners in the several counties shall have power to assess a tax on property liable to taxation for raising a county revenue, not exceeding five hundred' dollars, unless the amount of taxes to be assessed shall be submitted to a vote of the people at some general election, and a majority of all the votes cast at a poll opened for that purpose shall be in favor of such assessment.”
By virtue of the foregoing statutes an election was ordered by the board of county commissioners of Pratt county, and the election was held and the land purchased; but it is claimed that all this was void, for the reasons following:
I. It is claimed that the election was void for the reason that no record of the order of the board of county commissioners calling the election was ever made. It is true that the county clerk failed to enter of record the order of the county board calling the election, but the order was nevertheless made and published, and the election was in fact held in
II. It is further claimed that the election is void for the reason that the order of the county board calling the election submitted to the electors to be voted upon the question of a rate per cent, as the limit of the amount of the tax that might be assessed on the taxable property of the county, and did not fix, as it is claimed that the board should have done, a single and specific amount of money to be voted on, above which and below which the commissioners could not go in procuring a poor-farm fund by taxation; and the following cases are cited in support of this claim: Johnson v. Comm’rs of Wilson Co., 34 Kas. 670, 691; Mercer Co. v. P. & E. Rld. Co., 27 Pa. St. 389; Dowdney v. Mayor of New York, 54 N. Y. 186; also Burroughs on Public Securities, 273. We do not think that the authorities above cited are in point. In fact, the first case cited, that of Johnson v. Comm’rs of Wilson Co., is to some extent adverse to the plaintiff’s claim. The amount designated in that case was not a specific amount, but it was “ a sum not to exceed thirty thousand dollars; ” and yet the election in that case was held to be valid and binding. The next case, that of Mercer Co. v. P. & E. Rld. Co., might at first glance seem to be applicable; but even that case is not in
III. It is further claimed that the election is void for the reason that the abstract of the votes made at the time of the canvass of the election returns by the board of county commissioners acting as a board of canvassers was not signed as provided by law. The abstract was not in fact signed by any person. This was another failure of duty on the part of the county clerk. It does not appear from the statutes that the members of the canvassing board should sign the abstract of
IV. It is further claimed that the purchase of the land was void for the reason that the land was not worth the amount which the commissioners agreed to pay for it. Now several witnesses testified that it was worth that amount, and several others testified that it was not worth that much, some of them testifying that it was not worth even half that much. In this connection the plaintiff'in error also claims that the court below erred in limiting the number of witnesses to prove the value of the land, to six on each side. Under the circumstances of this case, however, we think the court below certainly did not err. The question as to the value of the land was not directly in issue in the case, and had but very little materiality therein. The value of the land could be shown only as a circumstance tending to show either good faith or bad faith in the purchase and sale of the property. If the purchase and sale were in good faith and without fraud, it is immaterial whether the commissioners paid too much or too little for the property. Under the circumstances of the case we think that the limitation imposed by the court as to the number of witnesses was very reasonable. (Hilliard v. Beattie, 59 N. H. 462; Union Rld. Co. v. Moore, 80 Ind. 458; Everett v. U. R. Rly. Co., 59 Iowa, 243; Bays v. Hunt, 60 id. 251.)
V. It is further claimed that the time limited by the election for purchasing a poor-farm, or for levying a tax to pay for the same, had expired before the land was purchased in this case. The election, however, furnished no such limitations. The election was held in November, 1886, and it authorized the raising of a fund to purchase a poor-farm by an assessment on the next year’s valuation of taxable property not to exceed eight mills on the dollar. The proper time for levying the tax under this election would have been on the first Monday of August, 1887, (Tax Law, §83,) provided
We have now examined every point presented in this case that merits consideration, and we do not think that the court below committed any material error, and therefore its judgment will be affirmed. .