Comm'rs of Johnson Co. v. Ogg , 13 Kan. 198 ( 1874 )

The opinion of the court was delivered by

Valentine, J.:

On the 6th of January, 1871, taxes were due in Johnson county for the year 1870, from the Missouri Eiver, Fort Scott & Gulf Eailroad Company, amounting to the sum of $11,985.21, and the proper officers of that county were about to proceed to collect the same. The railroad company however on that day commenced an action against J. H. Blake, county treasurer of said county, and A. J. Clemmans, sheriff of said county, to perpetually enjoin them from collecting said taxes; and on the 7th of January, 1871, the judge of the district court for said county granted a temporary injunction to restrain the collection of said taxes pending the litigation. Afterward the petition of the railroad company was amended, and on the 28th of August, 1871, the defendants demurred to the amended petition. The court below sustained the demurrer, rendering judgment for costs against the railroad company, and in favor of said Blake and Clemmans, and dissolved said temporary injunction. The railroad company then brought the case to this court on petition in error, and in this court the judgment of the court below was affirmed. (For a report of that case see Gulf Railroad Company v. Blake, 9 Kas., 489.) In all the foregoing proceedings the present defendant in error, F. E. Ogg, acted, along with other counsel, as counsel for Blake-and Clemmans. He was not however employed by Blake or Clemmans, nor by the county commissioners; but he acted in the defense of said suit in the capacity of county attorney of Johnson county. After said suit was determined in this court the railroad company paid said taxes to the treasurer of Johnson county, but neglected to pay the ten-per-cent, penalty which had then accrued on said taxes. The defendant in error, Ogg, then as county attorney filed a “precipe” with the county treasurer for a tax warrant to be issued for the collection of said tax penalty. The warrant was issued by the treasurer of said county to the sheriff, and the sheriff collected the said penalty from the railroad company and paid it over to the treasurer. The ten-per-cent, penalty amounted to $1,198.52 and the taxes and penalty in the aggregate amounted to $13,183.73. The defendant in error, Ogg, now claims that he is entitled to ten per cent, of the whole amount, to-wit, $1,318.37, for his said services as county attorney. He first filed his claim for that amount with the county commissioners, but they refused to allow the same or any part thereof. He then commenced this action in the district court for that amount, and the district court, upon an agreed statement of facts, rendered judgment in favor of Ogg, and against the county for the whole amount claimed, with costs, Is such judgment correct? This is the only question in the case. Ogg does not claim this amount as a part of his salary as county attorney. Nor does he claim it under any contract made with the county commissioners. Indeed, he does not claim it under any contract made with any person or persons. He simply claims it under that provision of the statute which says: “County attorneys shall be allowed ten per cent, on all moneys collected by them in favor of the state or eov/nty,” (Gen. Stat., 285, § 139.) And he claims this in addition to his salary as county attorney, and in addition to all other fees or compensation allowed by law. Whether all of said taxes belonged to the state and county is not shown by the record, (they may have belonged to some other fund,) but for the purposes of this case we shall assume that they all belonged to the state and county. Or rather, we shall assume that they all belonged to the county; for if any portion of them belonged to the state then a very serious question would arise whether the county is liable for the whole amount or not. That is, whether the county is liable to pay out of its own fund the ten-per-cent, allowed by the statute for collecting the state fund, or whether the state fund should not bear its proportion. Then with these assumptions the whole question in this case depends upon whether said payment of said $13,183.73 by the railroad company to the treasurer and the sheriff of said county was a eolleetion of the same or any part thereof by the said county attorney, Ogg, within the meaning of said statute. That is, did the county attorney collect the taxes paid by the railroad company to the county treasurer, and did the county attorney collect the penalty paid by the railroad company to the sheriff? The court below decided that the county attorney collected both the taxes and the penalty. We think however that the county attorney did not collect either. None of the money ever,passed into his hands, or through his hands, and he had no authority to receive it. But he claims that he collected said money by virtue of said injunction suit, and that he collected a portion of the same by virtue of said “precipe.” Now neither the state nor the county was a party to said injunction suit. No judgment was rendered in favor of or against either the state or said county. Neither the state nor the county employed said county attorney. Indeed he was not employed at all. The suit was between the railroad company on the one side, and said Blake and Clemmans on the other; and no judgment was rendered even in favor of Blake and Clemmans, except for costs. The judgment did not give Blake and Clemmans or either of them any right to collect said taxes, or to collect said penalty. It did not give or pretend to give them any rights which they did not have before. They could not have had an execution issued on said judgment for the collection of said taxes and penalty. And they did not even attempt to have any such execution issued. They did not collect, nor attempt to collect said taxes and penalty by virtue of said judgment, and they had no authority to do so even if they had so attempted. The taxes and penalty were collected wholly under the statute, independently of said judgment, and were so collected in the same manner (with the exception of said “precipe,”) that they would have been collected if no such suit as said injunction suit had ever been commenced. (Gen. Stat., 1059, §123; Laws of 1869, p. 251, § 15; Laws of 1871, p. 234, § 11.) The said precipe filed by the county attorney with the county treasurer was a nullity. Or at most it could be treated only as an opinion of the county attorney that a tax warrant should be issued. It is an instrument unknown to the tax laws. It gave to the county treasurer no powers. It could perform no office nor function, other than as a mere opinion of the county attorney. It did not make the tax warrant afterward issued any better or worse than such tax warrant would have been if no such precipe had ever been filed. It did not make it any more obligatory upon the treasurer to issue said tax warrant than it was before under the law. It simply left the treasurer with just the same rights and powers that he had before the precipe was filed, and with just the same rights and powers that the treasurer would have had if no injunction suit had ever been commenced. It may be true that said injunction suit determined incidentally that said taxes were legal, and that the treasurer had a right to collect the same; but such a determination could only be incidental. The direct determination was that the railroad company was not entitled to an injunction in the case. This determination might have been for other reasons than that the taxes were legal. Injunction to enjoin the collection of taxes is often refused notwithstanding that the taxes or some portions thereof may be illegal. (Sleeper v. Bullen, 6 Kas., 300, 306, 309; Ottawa v. Barney, 10 Kas., 270, 279, 280; Gulf Rld. v. Morris, 7 Kas., 210, 229 to 232; City of Lawrence v. Killam, 11 Kas., 499; Gilmore v. Fox, 10 Kas., 509; Hudson v. Atchison Co., 12 Kas., 140.) The refusal of tha injunction in such .a case is simply a negative judgment, and gives to the defendants no affirmative rights except to collect their costs. The refusal of an injunction to restrain the collection of taxes does not confer any right upon the officers to collect the taxes. It simply leaves the officers with just such rights as they had before.

The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered in favor of the defendant below and against the plaintiff below for costs.

All the Justices concurring.