Fender v. Neosho Falls Township , 22 Kan. 305 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

This was an action of mandamus, brought by Neosho Falls township, Woodson county, Kansas, against Enoch Fender, trustee, William Jones, clerk, and Charles Howard, treasurer, of Everett township, in said county and state, to compel said officers to levy certain taxes. The principal facts of the case seem to be as follows: On July 1, 1870, Neosho Falls township voted and issued certain bonds for the construction of a bridge across the Neosho river in said township. On April 21, 1871, a portion of the terrB tory of Neosho Falls township was detached from the township, and out of such detached territory, together with some other territory, a new township was organized, named Everett township. Since that time no tax for the payment of said bonds, or of any part thereof or any interest thereon, has been levied on any of the property detached from said Neosho Falls township. Hence the corporation of Neosho Falls township commenced this action to compel the said officers of Everett-township to levy taxes upon the real estate of said detached territory to aid the said Neosho Falls township in the payment of said bonds and of the interest thereon. The •court below granted a peremptory writ of mandamus to compel said officers to levy said taxes.

Whether the court below erred or not in granting this writ, is the only question now presented to this court. Involved ■in this question, however, are others, the first of which is, whether there is any law authorizing said officers to levy :said taxes. If this question shall be decided in the affirmative, then there will be several other questions to decide, but ■if it shall be decided in the negative, such decision will dispose of the whole case. We think that this question must be decided in the negative. We know of no law giving to ■the township officers of one township authority to levy taxes for another township; and we know of no law that would .give authority to the township officers of Everett township to levy the taxes demanded in the present case. Counsel for the defendant in error (plaintiff below) refer us to §4 of the .■act of 1870, relating to township bonds (Laws 1870, p. 77), ■as giving such authority. That section provides that “ the township officers aforesaid shall levy each year” bridge-bond taxes such as we are now considering; but “the township officers aforesaid,” mentioned in-said §4, are not the township ■officers of a township different from the one for which the taxes are to be levied, but they are the township officers of the township that voted and issued the bonds; of the town■ship that is liable for the payment of the bonds; of the township that must be sued if the bonds are not paid, and of the township for which the taxes are levied and collected to pay the bonds. No other township officers are mentioned in said ■section 4, or in the act of which it forms a part, than those ■of the township which issues the bonds and which is liable for their payment. In the present case, Everett township ■never had anything to ,do with the said bonds of Neosho Falls township, and is not liable thereon. A portion of the real estate of Everett township — that portion which was ■taken from Neosho Falls township — is, along with the real ■estate still remaining in Neosho Falls township, liable for the payment of said bonds and of the interest thereon, but Everett township..itself is not liable-in any manner or degree; hence the levying of said taxes under said section 4 is not an affair in which Everett township, as a corporation, has any interest.

Under §17 of the act of’1872, relating to “bridge and improvement bonds,” the county clerk would levy the taxes.. (Laws of 1872, p. 117, §17.) But that section is 'now repealed. (Laws of 1874, p. 49, § 16.)

Under § 7 of the act of 1874, amendatory of and supplemental to said act of 1872 (Laws of 1874, p. 45., §7), the-officers of Neosho Falls township should levy the tax. That section provides that “it shall be the duty of the proper-officers of any county, city or township, in which bonds have been heretofore voted, for any of the purposes mentioned in the act to which this act is amendatory [this includes bonds-for the construction of bridges], annually, at the time when other taxes are levied, to levy and cause to be collected a-sufficient tax to pay the interest on all such bonds as the same shall become due; and also for the purpose of creating; a sinking fund for the final redemption of such bonds,” etc.

The act of 1873 relating to taxation on the change of boundary lines (Laws of 1873,' p.267), which renders the-said detached territory liable in part for the payment of bonds previously voted and issued, would also seem to indicate that the officers of the old township,.and not the officers-of the township into which the detached territory might be-placed, should levy the taxes. The first section of the act-makes the bonds a lien upon all the real estate situated in the old township or any township at -the time when the-bonds are or were voted and issued. And § 3 of the act provides that all the real estate detached from a township and put into some other or a new township, “shall be subject to-taxation for the payment of such bonds and the interest-thereon, in the same manner as though no suoh change of boundary lines had been'made.” Section 4 of the act relates-wholly to counties, and provides for certifying the levy made-in one county to another county, and has no application to townships which are situated in one and the same county.

If the legislature had ever intended that the officers of the township into which the detached territory might be, placed, should levy the taxes, why did it not at some time say so? and why did it not provide some mode for giving-such officers such information as is necessary to enable them to make the levy intelligently? Under the present laws there is no mode prescribed by law for such officers to know or ascertain what the debts, liabilities, resources, taxable property, or taxes levied, of the old township are. Certainly, under such circumstances, the legislature never intended that the officers' of the township into which the detached territory is placed,- should levy the taxes. The officers of the old township make the levy at a certain rate per cent, on all the taxable property of their own township, and on all the real estate of the detached territory, and then certify this levy to the county clerk, who calculates the amount of the taxes on all the property subject thereto, and places the same on the tax-roll for collection without any further circuity, and without any unnecessary and superfluous action being taken by the officers of the township containing said detached territory.

The judgment of the court below will be reversed, and cause remanded with the order that said peremptory writ of mandamus be refused.

All the Justices concurring.