This is an action brought by the State of Kansas, on the relation of the County Attorney, against the City of Emporia, its Mayor, City Clerk, City Treasurer, and the Councilmen of said city, to restrain them from transferring a certain fund, raised by taxation for the erection of a city building, to the general fund, and the disbursement of the same for purposes other than the erection of a city building.
On August 19, 1895, an ordinance was duly enacted levying a tax of two and one-half mills on the dollar on all property within the city for the purpose of raising a building-fund, which it was provided should be “used only for the erection of a city building.” In pursuance of the ordinance the tax was levied and extended on the tax-roll, and the amount collected was $5,900, which has since been carried on the treasurer’s books and known as the “building-fund.” No steps were taken by the mayor and council for erecting a building, although it is conceded that the City of Emporia has no adequate city building and is compelled to rent rooms for its officers. In July, 1896, the Mayor and Council undertook to transfer the money derived from' the levy to the general fund; and, to that end, submitted to the electors of the city the question whether such transfer should be made. At the election 287 votes were cast
We think the transfer would have been an improper diversion of the public moneys. The City exists under a general law of the State, and the tax for the erection of a city building was levied under an ordinance passed in pursuance of a general law. The authority for the erection of city buildings and the provision of a fund for that purpose is explicit and unquestioned. ¶ 813, Gen. Stat. 1889. The transfer of the building fund derived from the levy to the general fund, with or without a vote of the electors, would be a direct violation of section 4, article 11, of the State Constitution, which provides that “no tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same ; to which object only such tax shall be applied.” Graham, State Treasurer, v. Horton, 6 Kan. 343; The State, ex rel., v. Comm’rs of Marion Co., 21 id. 419; National Bank v. Barber, Treas., etc., 24 id. 534. The tax was levied in pursuance of a State law, supplemented by a local law of the city, and for a specific object; and even the ordinance making the levy provided that the fund derived from the tax should “be used only for the erection of a city building.” The transfer of the building fund to the general fund would be a clear misapplication, a diversion to a wholly different ob
We think the injunction should have been granted, and therefore the judgment of the District Court will be reversed, and the cause remanded for further proceedings.