Atchison

• Decision Date: 07 March 1885
• Citation: 6 P. 281,33 Kan. 223
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. C. E. WILSON, as Treasurer of Hodgeman County, et al

6 P. 281

33 Kan. 223

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. C. E. WILSON, as Treasurer of Hodgeman County, et al

Supreme Court of Kansas

March 7, 1885

Error from Hodgeman District Court.

ACTION brought by The Atchison, Topeka & Santa Fe Railroad Company against C. E. Wilson, county treasurer of Hodgeman county, and School District No. 19, of that county, to restrain the collection of certain taxes levied for school purposes, and which are alleged to be illegal.

The plaintiff in its petition averred:

"That it is a corporation duly organized and existing under and by virtue of the laws of the state of Kansas; and for cause of action against the defendant, says:

"That the defendant, C. E. Wilson, is the duly qualified and acting treasurer of Hodgeman county, Kansas, and that the defendant school district number nineteen, Hodgeman county, Kansas, is a municipal corporation in said county and state aforesaid. The plaintiff represents that it, as such railroad corporation, is now, and has been for more than two years last past, the owner of certain real estate in Hodgeman county, Kansas; that the land so owned by this plaintiff is the odd-numbered and alternate sections of land in the south part of Hodgeman county aforesaid. Plaintiff, further complaining, says, that in April, 1882, or soon thereafter the defendant school district number nineteen, of said Hodgeman county, Kansas, was laid out and designated in said county with boundaries embracing nearly if not quite one-third of the territory of said Hodgeman county; said district being twenty-four miles in length and from six to twelve miles in width, and including within its boundaries the land of this plaintiff as set forth and described in 'Exhibit A,' hereto attached and made part hereof that the total population within said school district to be benefited by the organization thereof, live and reside within an area of four miles in any given direction from the town of Jetmore in said school district, at which place the said school district has located its school-house site and maintained its school, and at no other place in said school district is there a site located or a school maintained; that the inhabitants that live and reside outside of said last-mentioned area in said school district, if any there was and is, could in no wise be benefited by said organization of the said school district, defendant, for that they would live and reside at a distance too remote from the said town of Jetmore, where the said school of the said district defendant, is kept and maintained, for them to avail themselves of the same for school purposes.

"Plaintiff says that none of the plaintiff's lands herein described are within less than five miles of the said town of Jetmore and the place where the only school is kept in said district, and the means and mode of transportation from plaintiff's lands to said town of Jetmore are the ancient and ordinary means, to wit, on horseback if fortunate enough to own a horse, or mule, and by wagon if fortunate enough to own horse, mule, or wagon--otherwise on foot; and therefore plaintiff avers that it can receive no benefit from said school-district organization whatever; that said school district number nineteen, defendant, did, during said year 1882, levy upon the assessed valuation of the property of plaintiff, to wit, the lands above described, valued at and assessed at dollars, the following sums, to wit:

For building purposes, 10 mills

$ 298.77

For teachers' wages, 5 mills

149.38

For library fund, 1/2 mill

14.98

And that said amounts and levy were duly placed upon the tax-rolls of Hodgeman county for the year 1882, and became a charge against the property of this plaintiff.

"Plaintiff further says, that by reason of the foregoing, the said taxes are wholly illegal and void; that the said defendant, C. E. Wilson, as such county treasurer, is about to and will advertise the lands of this plaintiff and sell the same, unless restrained by order of the court.

"Wherefore, plaintiff prays that an order issue temporarily restraining the said defendant from performing any of the said acts complained of, and that on the final hearing of this cause said taxes may be adjudged wholly illegal and void, and the said defendants, C. E. Wilson, treasurer as aforesaid, and his successors in office, be restrained perpetually from collecting or attempting to collect any of said tax, and that the defendant school district number nineteen, Hodgeman county, Kansas, be perpetually restrained from hereafter levying any tax upon the property of the defendant herein described, for school purposes and for costs."

Upon application of the plaintiff, a temporary injunction was granted by the judge of the district court. Afterward the defendants demurred to the petition of plaintiff, upon the following grounds:

"1. That the petition of said plaintiff does not state facts sufficient to constitute a cause of action against said defendants.

"2. That the plaintiff herein has not the legal capacity to sue, in that this injunction attacks the organization of school district number nineteen in a collateral way.

"3. That there is a defect of parties plaintiff, in that to affect the organization of a municipal corporation of school district number nineteen, the state of Kansas must be the plaintiff."

At the April Term, 1884, the cage was tried upon the demurrer of the defendants. The court sustained the demurrer, and dissolved the temporary injunction theretofore granted; and the plaintiff electing to stand upon the demurrer, judgment was rendered against it for costs. These rulings are assigned as error.

Judgment affirmed.

A. A Hurd, M. W. Sutton, and Robert Dunlap, for plaintiff in error; Geo. W. McCrary, general counsel.

W. S Kenyon, and T. S. Haun, for de...