45 Kan. 360 | Kan. | 1891
The opinion of the court was delivered by
This was an action to enjoin the collection of certain taxes alleged to have been illegally charged against the property of the plaintiff by the'county clerk of Shawnee county. It appears that the Topeka City Railway Company was engaged in business in the city of Topeka in 1885, and had property subject to taxation for that year. On the 1st day of June, 1885, Joab Mulvane, the president of the company, made a statement to the assessor of the company’s personal property subject to taxation for that year, which statement the assessor accepted, and returned the valuation of the company’s property to the county clerk as the same had been
The only authority for the increase of the valuation and for the additional taxes charged against the company was under §70 of chapter 34 of the Laws of 1876. This statute, however, provides that no change or correction shall be made until notice has been given. No notice or opportunity to be heard was given to the company before the increased valuation and additional tax were entered and charged against the company on the tax-roll, and the action of the board and the clerk in entering and charging the same was clearly invalid, and the tax sought to be collected by the treasurer is wholly void. The invalidity of their action is conceded, but it is claimed that the appearance and action of the company before the board on March 13, 1886, waived the notice and cured the invalidity of the levy. We do not agree with this contention. The appearance at that time was for the sole purpose of inducing the board to order the clerk to strike from the tax-roll and to cancel and set aside the illegal assessment and charges that had been made and entered against the company. The right of the county clerk or commissioners to proceed at that time under § 70 of the tax law to correct the assessment of the company was not conceded, nor did the findings show that the company waived the want of notice. The facts and proceedings in this case are very similar to those in Comm’rs of Leavenworth Co. v. Lang, 8 Kas. 284. There, the board attempted to increase the valuation of Lang's property without giving the notice required'by law. After Lang learned of the increase, he went before the board and moved to have the error corrected, as was done by the city railway company in the present case; but failing in this, he sued out an injunction to stop the collection of the additional tax sought to be charged against him. Chief Justice Kingman, who delivered the opinion of the court, held that the board was not authorized to proceed without notice, and that “ their action in the premises was clearly invalid. Defendant, when
The judgment of the district court will be reversed, and the cause remanded with directions to enter judgment upon the findings in favor of the plaintiff in error.