Board of Com'rs. of Edwards County v. Simmons

• Decision Date: 30 September 1944
• Docket Number: 36188.
• Citation: 159 Kan. 41,151 P.2d 960
• Parties: BOARD OF COUNTY COM'RS OF EDWARDS COUNTY v. SIMMONS et al.
• Court: Kansas Supreme Court

151 P.2d 960

159 Kan. 41

BOARD OF COUNTY COM'RS OF EDWARDS COUNTY v. SIMMONS et al.

No. 36188.

Supreme Court of Kansas

September 30, 1944

Syllabus by the Court.

The averments of fact contained in defendants' answers which were not denied would be treated as admitted on appeal from judgment sustaining defendants' motion for judgment on the pleadings. Gen.St.1935, 60-748.

The subject of assessment and collection of taxes being covered by statute, official powers are limited to those expressed or clearly implied in the statutes.

The statute relating to delinquent taxes owed by certain public utilities is not unconstitutional because it applies only to public utility corporations operating in not more than four counties. Gen.St.1935, 79-2101a to 79-2101c; Const. art. 2, § 17.

A common carrier was a "public utility", within statute relating to collection of delinquent taxes owed by public utilities operating in not more than four counties. Gen.St.1935, 66-104, 66-105, 79-2101a to 79-2101c.

A "public utility" within statute relating to collection of delinquent taxes is a business organization which regularly supplies the public with some commodity or service, as electricity, gas, water, transportation, or telephone or telegraph service, the distinguishing characteristic being the devotion of private property by owner or person in control thereof to such a use that public generally, or that part of the public which has been served and has accepted the service, has a right to demand that the use or service, so long as it is continued, shall be conducted with reasonable efficiency and under proper charges. Gen.St.1935, 66-104, 66-105, 79-2101a to 79-2101c.

Under authority granted to board of county commissioners under statute to institute actions or to intervene in actions already brought in connection with collection of delinquent taxes due from public utility corporations operating in not more than four counties, such boards may employ attorneys when such employment is necessary for effectuating purposes of the statute. Gen.St.1935, 79-2101a to 79-2101c.

County attorneys are under no obligation by virtue of their office to represent their counties in proceedings outside of county.

Generally when powers are expressly conferred on an officer or governmental board, the power is implied to take such reasonable means as may be necessary for effective exercise of the powers conferred and discharge of the duties imposed.

In determining validity of a contract made by board or other governmental agency extending beyond official term of contracting board or officials, the test generally applied is whether contract is an attempt to bind successors in matters incident to such successors' administration and responsibilities, or whether it is a commitment of a sort reasonably necessary for protection of public property interests or affairs being administered, and in the former case the contract is generally held to be invalid and in the latter case valid.

Under contract entered into by board of county commissioners with an attorney to represent them in attempting to collect delinquent taxes owed by railroad which was in receivership attorney did not lose authority to act the moment the term of the contracting board expired, without consideration of status of matters pending in the receivership proceeding. Gen.St.1935, 79-2101a to 79-2101c.

Where board of county commissioners had actual knowledge of contract entered into by their predecessors with attorney to collect delinquent taxes owed by railroad which was in receivership on contingent fee basis, and board thereafter accepted money collected by attorney, less his fee which he withheld, and by formal resolution provided for its distribution by county treasurer, board by its acts ratified the contract. Gen.St.1935, 79-2101a to 79-2101c.

Where an agent makes a contract for his principal, the principal cannot take benefits and not assume burdens, but he must repudiate the whole transaction or accept it as a whole.

The power granted to board of county commissioners by statute to compromise certain delinquent taxes owed by public utilities operating in not more than four counties carries with it by implication the power to compromise judgments which have been entered for such delinquent taxes. Gen.St.1935, 79-2101a to 79-2101c.

Where attorney contracted with board of county commissioners to collect delinquent taxes owed by a railroad which was in receivership on a contingent fee basis of 15 percent., and thereafter money was paid to attorney out of receivership funds pursuant to compromise settlement of the judgment for delinquent taxes, attorney was entitled to a lien under that part of statute relating to retaining liens, and was entitled to retain his fee before making remittance to county. Gen.St.1935, 7-108, 9-301, 79-2101a to 79-2101c.

A contract entered into by attorney with board of county commissioners to collect delinquent taxes owed by a railroad which was in receivership on a contingent fee basis was not a violation of either the budget law or the cash basis law. Gen.St.1935, 10-1101 to 10-1122, 79-2101a to 79-2101c 79-2925 to 79-2937.

1. Ch. 313, L.1931, 79-2101a 79-2101b, 79-2101c, G.S.1935, does not violate Art. 2, section 17 of the Constitution of Kansas by reason of the fact that it applies only to public utility corporations operating in not more than four counties.

2. A common carrier is a "public utility" within the meaning of the statute, supra.

3. Unless a legislative intent is indicated otherwise an express grant of powers to an officer or governmental board carries with it such implied powers as are necessary for the due and effective exercise of the powers expressly granted and the discharge of the duties imposed.

4. Under the authority granted to boards of county commissioners under the statute, supra, to institute actions or to intervene in actions already brought in connection with the collection of delinquent taxes due from public utility corporations, such boards may employ attorneys when such employment is necessary for effectuating the purposes of the statute.

5. The power granted by the statute, supra, to compromise certain delinquent taxes carries with it by implication the power to compromise judgments which have been entered for such delinquent taxes.

6. In determining the question of validity of a contract made by a board or other governmental agency extending beyond the official term of the contracting board or officials, one test generally applied is whether the contract is an attempt to bind successors in matters incident to such successors' administration and responsibilities, or whether it is a commitment of a sort reasonably necessary for protection of the public property, interests or affairs being administered. In the former case the contract is generally held to be invalid and in the latter case valid.

7. Where an agent makes a contract for his principal the principal cannot take the benefits and not assume the burdens; he must repudiate the whole transaction or accept it as a whole.

8. A county attorney is under no obligation, under his office, to perform legal services for the county outside of the county.

9. Record examined in an action by a board of county commissioners to recover money retained by the defendant as attorney's fees from money received by him in settlement of a judgment for delinquent taxes, and it is held--under the facts set out in the opinion:

(a) The contract made between a prior board and the attorney, defendant, was valid.

(b) Neither the contract nor the acceptance by the plaintiff board of money collected under it was in contravention of the budget law or the cash basis law.

(c) By their acts the plaintiff board ratified the contract.

(d) Under the contract the attorney's fee due the defendant was easily and definitely determinable by mathematical calculation.

(e) The attorney was entitled, under the contract and all the facts shown, to deduct and retain the amount of his fee before making remittance to the county.

Appeal from District Court, Reno County; Benjamin F. Hettinger, Judge.

Action by the Board of County Commissioners of Edwards County against J. S. Simmons and another to recover from the defendant money retained as attorney's fees from collections made under a judgment for delinquent taxes. From a judgment for defendants on the pleadings, the plaintiff appeals.

A. L. Moffat, of Kinsley (W. N. Beezley, of Kinsley, on the brief), for appellant.

William H. Burnett, of Hutchinson (Stuart Simmons, of Hutchinson, on the brief), for appellee J. S. Simmons.

Paul R. Wunsch, of Kingman (Jones, Branine, Chalfant & Hunter, of Hutchinson, on the brief), for appellee Harold R. Fatzer.

HOCH Justice.

This was an action by a board of county commissioners to recover from the defendants money retained as attorney's fees from collections made under a judgment for delinquent taxes. The trial court sustained defendants' motion for judgment on the pleadings and the board appeals. The primary questions are whether a contract made with one of the attorneys by a prior board was valid; whether, if valid during the term of the board making the contract, it was binding upon subsequent boards; and whether the plaintiff board by its acts had adopted or ratified the contract.

The Wichita & Northwestern Railway Company--hereinafter called the railroad--operated a railroad line in Pratt, Edwards, and Pawnee counties. The railroad began operations in 1916. It early ran into financial difficulties and in 1922 was placed in receivership in an action instituted in Reno county. On account of the service which the road rendered to the communities served, many public officials, civic...