Board Co Com Rs of the County of Cherokee v. Wilson

• Decision Date: 17 December 1883
• Citation: 3 S.Ct. 352,27 L.Ed. 1053,109 U.S. 621
• Parties: BOARD CO. COM'RS OF THE COUNTY OF CHEROKEE, State of Kansas, v. WILSON
• Court: U.S. Supreme Court

109 U.S. 621

3 S.Ct. 352

27 L.Ed. 1053

BOARD CO. COM'RS OF THE COUNTY OF CHEROKEE, State of Kansas, v. WILSON.

December 17, 1883.

Wallace Pratt, for plaintiff in error.

Jas. S. Botsford and Jos. Shippen, for defendant in error.

WAITE, C. J.

On the eleventh of June, 1881, William C. Wilson, the defendant in error, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Salamanca, Cherokee county, for $48,920.31. At that time the office of trustee of the township was vacant, and it has not been filled since. On the twenty-fourth of July, 1882, Wilson sued out of the same court an alternative writ of mandamus, returnable on the ninth of October, 1882, requiring the board of county commissioners of the county 'to forthwith levy upon the tax- able property * * * in said township * * * a tax sufficient in amount for the payment of the judgment * * * and cause the same to be certified to the county clerk of said county,' and requiring the clerk of the county 'to extend said tax forth with on the tax books of said county and deliver the same with said tax so levied and extended thereon to the county treasurer of said county;' and the county treasurer forthwith, after the tax books shall have been delivered to him by the clerk, 'to proceed to collect said taxes and pay the same, when so collected, to said William C. Wilson, in payment of said judgment, interest, and costs,' or show cause why they had not so done. This writ was served on the individual members of the board of county commissioners, and on the clerk and treasurer of the county, on the twenty-sixth of July. On the twenty-seventh of November, 1882, the respondents filed a motion to quash the writ, and on this motion raised two questions, to-wit: (1) Whether the writ was not sued out prematurely; and, (2) whether, under the statutes of Kansas, the county commissioners could legally do that which the writ sought to coerce them into doing. Before this motion was disposed of, the individual members of the board of county commissioners filed an answer, and, after the testimony was closed, Wilson moved for a peremptory writ. Upon the hearing of this motion and the motion to quash, the judges holding the court were divided in opinion on the following questions: (1) Whether said motions respectively should be sustained or overruled; (2) whether it is the legal duty of the board of county commissioners of Cherokee, under the statutes of the state of Kansas, to levy the tax as commanded by the alternative writ of mandamus herein, for the payment of the judgment of the relator against Salamanca township, in said county, based upon interest coupons detached from bonds issued by said township to pay shares of capital stock in a railroad company, which bonds were voted under the act of the general assembly of the state of Kansas, entitled 'An act to enable municipal townships to subscribe for stock in any railroad and to pro- vide payment of the same,' approved February 25, 1870, and issued September 1, 1872, under the act of said general assembly, entitled 'An act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-powers, or other works of internal improvement, and providing for the registration of such bonds, and the repeal of all laws in conflict therewith,' approved March 2, 1872.

The circuit judge was of opinion that the motion to quash should be overruled, and that for the peremptory writ granted. A judgment awarding the writ was thereupon entered, and the questions as to which the difference of opinion arose were duly certified. The case is now here on a writ of error for an answer to these questions.

The act of February 25, 1870, authorized the township to subscribe to the capital stock of the Memphis, Carthage & Northwestern Railroad Company, and to issue bonds to pay the subscription. That was settled by the judgment against the township, on account of which the mandamus is asked.

Every township in Kansas is a body corporated and politic. Section 1, (5965,) Dassler's Comp. Laws, 977. The trustee is the principal officer of the township, and his duty is, among other things,—section 22, (5988,) Dassler's Comp. Laws, 980,—to 'superintend all the pecuniary concerns of his township,' and, at the July session of the board of county commissioners, annually, with the advice and consent of the board, to levy a tax on the property of the citizens of the township, for township, road, and other purposes, and report the same to the county clerk for entry on the tax roll, 'but, in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road, and other taxes.' The board of county commissioners are required by law to meet in regular session on the first Monday in July of each year. Section 13, (1397,) Dassler's Comp. Laws, 274. They must also meet on the first Monday day in August in each year, to estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes which they shall be required by law to levy. Section 83, (5886,) Dassler's Comp. Laws, 956. The county clerk must make up the taxlist immediately after the first Monday in August, and deliver it to the treasurer for collection on or before the first Monday in November. Section 84, Dassler's Comp....