State ex rel. Attorney General v. Board of County Commissioners , 2 Kan. 61 ( 1863 )

By the Omrt,

Cobb, C. J.

This is a motion for a mandamus- to compel the defendants to levy with the taxes of 1863, an additional sum of §21,131.24 of unpaid Territorial taxes under the “ Act to require certain counties to levy, collect and pay over delinquent Territorial taxes. Chap. 63, Lames of 1863. The motion is founded! upon a sworn petition of the Attorney General, alleging “ that heretofore, to-wit, July 1st, 1863, there was due from Leavenworth County in said State, to said State of Kansas, the sum of twenty-one thousand one hundred and thirty-one dollars twenty-four cents, the same being the amount of Territorial tax due from said county, as it appears from the records of the Territorial and State Auditor’s books, under the provision of the various laws to provide for revenue, enacted since January A. D. 1858, by the Governor and Legislative Assembly of the Territory of Kansas, by reason of the said county having failed and neglected to levy and collect the same according to law.” The petition also alleges the giving by the Auditor to the Clerk of said county, and by him to the defendants the notice required by said Act, and that they “ have failed and refused to levy along with the other taxes for the year A. L>. 1863, a tax for the payment of the said sum or any portion thereof, or to issue the bonds of said county of equal amount thereto, “ and prays for a writ of mandamus to compel the levy of such tax, &e.”

Section 1st of the Act of Eeb. 26, 1863, under which this proceeding is instituted, is as follows :

“ That the Auditor of State is hereby authorised and requested to give notice on or before -the first day of July 1863, to the County Clerks of such counties as have failed or neglected to levy according to law the amount of Territorial tax due from them, as it appears from the records of the Territorial and State Auditor’s books, under the provisions of the various laws to provide for revenue enacted since January 1st, A. I). 1858, such notice to set forth the amount of tax due from the county to which it is sent under the provisions of the Act aforesaid.”

Section 2d, provides that the several Hoards of the County Commissioners of the counties to which said notice shall be sent, shall levy and collect along with the other taxes for the year 1863, the amount specified in the Auditor’s notice aforesaid, and shall pay the same into the State Treasury.

It is claimed by tbe defendants counsel who appeared and opposed the motion, that the Act in question is void for non-conformity to Sect. 4, of Art. 11 of the Constitution of the State, which reads as follows :

“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 shad be applied.”

No such statement is found in the act we are considering. But it is claimed by the relator that the law being for the purpose of collecting unpaid taxes due from the several delinquent counties to the State, no such provision is necessary, it being not the levy of a new tax but the collection of one already laid. There is force in the argument if its premises are correct. But are such taxes due from the counties ?

State or Territorial taxes are imposed by law not upon counties but upon the people of the State or Territory, and the individuals upon whose property the tax is imposed or who are personally required to pay it, are alone debtors for such tax. Nor have the counties ever until the passage of Chapter 60 of the Laws of 1863, been charged with the responsibility of collecting or in any manner made liable for such taxes.

The first Section of Chapter 28 of the Laws of 1860, page 409, Com. Laws, defines the corporate powers of counties, as follows:

“ That each organized county within this Territory shall be a body politic and corporate, and as such shall be empowered for the following purposes. First, to sue and be sued. Second, to purchase and hold real estate to the use of the county and lands sold for taxes as provided by law. Third; to sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants. Fourth, to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers. Fifth, to exercise such other and further powers as may be especially conferred by law.”

This law of the Territory is adopted by the constitution and in full force under the State Government. The powers conferred carry with them their corresponding obligations, but it is impossible to infer from it or from any other law in force before the passage of the Act of 1863, Chap. 60, above referred to, any responsibility of the county to the Territory or State, for Territorial or State taxes due from the people within its limits.

No obligation was imposed upon counties by the Statute for such taxes, nor any power given them to assume such responsibility. It is true the law imposes important duties upon county officers in the collection of such taxes, but their duties are imposed upon the several officers and not upon the county. They are performed not for the benefit of the county but of the State, and the State having the sole right to the benefit of such duties, has alone an ample remedy to coerce their performance by mandamus. Laches in the non-collection of such taxes is therefore imputable not to the county but to the State. And no ground is perceived for holding such unpaid tax to be due from the comity.

Does the Act in question provide for collecting the old tax, or does it levy a new one upon the residents of and persons having property within such counties ?

If it provides for collecting the old tax imposed by the law of 1860, the persons to pay that tax and the amount to be paid by each must be the same as they would have been by the provisions of that law. By the law of 1860, a tax of three mills upon the dollar was imposed upon the taxable property of the State according to the assessment of that year, and fifty cents upon every white male person between the ages of twenty-one and fifty years, while the-Act of 1863, imposes the aggregate of the uncollected tax upon tlie property taxable within such counties according to the assessment of the year 1863. These changes must vary essentially the amount imposed upon different parcels of real estate, and impose a tax for personal property upon many not liable to tax under the law of 1860. Most clearly then the Act in question attempts not the collection merely but the levying of a tax within the meaning of the constitutional provision cited. '

Section 1 of Article 11 of the Constitution, provides that “the Leislature.shall provide for a uniform and equal rate of assessment and taxation,” and this clause most clearly implies that taxes shall be levied only according to such uniform and equal rate. To comply with this provision, that taxes must be assessed uniformly upon the property of all parts of the State, and, while it may be quite consistent with justice and with this constitutional provision that persons owing taxes imposed by the law of 1860, should be compelled to pay them; to collect such taxes of others because they now reside or have property within the same county, unless the whole State is subjected to the same burthen, seems manifestly consistent with neither.

Reluctant as we are to differ with the legislative branch of the Government, we are compelled to conclude that the Act of 1863, in question, is inconsistent with the provisions of the constitution above cited, and therefore void, and the application for a mandamus must therefore be denied. Motion denied.

All the justices concurring.