Commissioners of Sedgwick County v. Bailey , 11 Kan. 631 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

This is an application made to this court for a mandamus compelling the defendant as county clerk of the county of Harvey to apportion, upon the taxable property situate in that portion of Harvey county which was detached from Sedgwick county, the amount of taxes necessary to pay that proportion of the interest due on the railroad bonds of Sedgwick county which was assigned to the detached territory by the act of the legislature of 1872. (Laws 1872, p. 184, ch. 97, §6.) The defendant raises four objections to the allowance of the writ. He insists that the plaintiff has no interest in the subject-matter of the action. The bonds were issued by the county of Sedgwick, and that body corporate and politic stands as the nominal debtor for the entire amount. The territorial limits of that county were by the act of 1872, diminished, and by the same act a proportionate share of the bonded liability was imposed upon the detached territory. This was not an imposition of a new burden, but a division of one already existing. As the detached portion did not constitute by itself a county, the burden was not imposed on the county at large, but a new method was devised of collecting the necessary amount of taxes from the detached portion, that is, by requiring the county clerk of Harvey county to apportion upon the detached territory the amount due therefrom as certified by the county clerk of Sedgwick county. If Sedgwick county paid in full, it could bring no action against Harvey county, and it is doubtful whether outside of this statutory remedy it would have any relief at all. The bondholders were not compelled to sue out separate writs against Sedgwick county, and whoever stood as the representative of the detached territory. They could compel full payment directly from the sole nominal debtor. Neither was there anything like the relation of principal and surety between Sedgwick county and this detached territory. Each was equitably the principal so far as its proportion was concerned. Under these circumstances we think Sedgwick county had such an interest that it could maintain this 'action.

A second objection is, that “the tax claimed to be due has never been levied or estimated and determined by any competent authority.” The statute reads that “the county clerk of Sedgwick county shall annually certify to the county clerk of Harvey county the amount of taxes to be levied on the territory so detached to pay the interest,” etc., “and the county clerk of Harvey county shall apportion,” etc. This has been done. The objection really is, that the commissioners have not made a levy. This, so far as the detached territory is concerned, is we think unnecessary. The county clerk of Sedgwick county simply divides the amount due for interest or principal by the fraction which measures the separate liability, as provided by the statute, and certifies the quotient to the clerk of Harvey county. This is all the levy which the statute provides for the detached territory.

A third objection is, that mandamus is not the proper remedy. It seems to us that it is the proper, if not the only real remedy. It is a ministerial duty which the county clerk has to perform, and it is a duty whose performance is of vital interest to the plaintiff in this action.

The fourth and last objection is, that “the apportionment of the property and indebtedness of the county of Sedgwick, as made by the legislature is inequitable and unjust.” The provision in regard to such division is, that “the territory so detached shall pay the same proportion of said indebtedness as the length of the Wichita and Southwestern Railroad within the county of Harvey bears to the entire length of said railroad between Newton and Wichita.” There is no division of property, nor on the other hand is there any division of indebtedness other than that of railroad bonds. We are not advised as to the amount of property held by Sedgwick county, or the amount of its indebtedness; neither are we informed of the comparative wealth or population of the detached strip, and the balance of the county of Sedgwick. Under these circumstances it is impossible to say that the division is other than just and equitable, even if the matter were not wholly under legislative control. As to the power of the legislature, see Dillon on Munic. Corp., §§ 36, 127, 128, 129, and notes; Cooley Const. Lim., 191,193, and notes. These are all the objections raised by the defendant to the allowance of the writ, and none of them appear to us sufficient.

The peremptory writ must therefore be awarded as prayed, for.

All the Justices concurring.