Clark v. Wallace County Com'rs

Decision Date09 February 1895
Citation39 P. 225,54 Kan. 634
PartiesS. H. H. CLARK et al., as Receivers of the Union Pacific Railway Company, v. THE BOARD OF COMMISSIONERS OF WALLACE COUNTY et al
CourtKansas Supreme Court

Error from Wallace District Court.

ON the 11th day of December, 1893, S. H. H. Clark, Oliver W. Mink E. Ellery Anderson, J. W. Doane and F. R. Coudert brought this action, as receivers of the Union Pacific Railway Company, to restrain the board of county commissioners and the treasurer of Wallace county from collecting a special or extra levy of 10 mills on the dollar's valuation of the Union Pacific property in that county, and to prevent the board from issuing warrants for payment of bounties on wolf coyote, rabbit and gopher scalps. At that time a temporary injunction was granted. Afterward the defendants filed answer, to which plaintiffs replied. On the 19th day of April, 1894, the case was submitted to the court upon the pleadings and the following agreed statement of facts:

"The Union Pacific Railway Company is a corporation organized and existing under the laws of the United States, with a line of railroad and railroad property situate in the county of Wallace, Kansas, and taxable therein for the year 1893; that the value of its railroad and railroad property so situated in the county of Wallace, as assessed for taxation for the year 1893, was and is the sum of $ 922,006.75; and the total valuation of all the property in Wallace county, as assessed for taxation for the year 1893, was and is $ 1,336,000. The plaintiffs herein were duly appointed receivers, and at the time of bringing this suit were and are now in possession and charge of the railroad and railroad property of the Union Pacific Railway Company, invested with the powers and charged with the duties as alleged in the petition. On the 3d day of July, 1893, the defendant the board of county commissioners made an order placing a bounty of $ 1 each on the scalps of wolves and coyotes, and 5 cents each on the scalps of rabbits and gophers. A petition was presented to the board at a special meeting held July 29, 1893, asking that a special election be called and the question of authorizing the board of county commissioners to make a special or additional levy by which sufficient funds could be raised to enable the county to pay a bounty upon gopher, rabbit, coyote and wolf scalps be submitted to a vote of the people of the county. The commissioners granted the petition, and ordered the sheriff to call the election for August 10, 1893. The board of county commissioners of Wallace county made a levy on August 7, 1893, of 10 mills on the dollar, of all the taxable property in said county, for current expenses for the year 1893, and at the same time made a levy of 3 mills for interest, and 1 mill for sinking fund on bonds outstanding against the county.

"The special election mentioned above was held August 10, 1893 and the following proposition was voted upon: 'Shall the county commissioners be authorized to make an additional levy of 10 mills, over and above what they are authorized by law to levy for county purposes, to meet the extra expense incurred by the bounties being placed on wolf, coyote, gopher and rabbit scalps?' A majority of 18 votes was cast in favor of the proposition. The board afterward met on the 11th day of August, 1893, and made the following order: 'The additional levy of 10 mills to pay for the bounty on scalps as voted for at the special election, August 10, was ordered to be extended on the tax roll on all the taxable property throughout the county.' Said additional levy was then extended on the tax roll as ordered, and the tax roll was then placed in the hands of the defendant county treasurer for collection. The tax raised under the additional 10-mills levy is to be used only to pay the bounties before mentioned. At the time of bringing this suit the county treasurer had charge of the tax rolls, and would have collected the tax raised by the additional 10-mills levy had he not been restrained by the order of this court, and he will now collect said tax unless enjoined from so doing. After said bounties had been established by said board, and prior to the institution of this suit, the said board had issued, upon the proper making and presentation of proofs, a large number of warrants to a very large number of persons as payment for said bounties, and in amount about as follows: Wolf scalps, $ 100; coyote scalps, $ 400; gopher scalps, $ 3,250; rabbit scalps, $ 3,250. The county commissioners will, unless enjoined by this court, issue other warrants in payment of bounties on the scalps of wolves, coyotes, rabbits, and gophers. That the plaintiffs have paid all the taxes levied on the railroad and railroad property of the Union Pacific Railway Company after this suit was commenced, except the 10-mill tax authorized by vote. The plaintiffs do not attack the regularity of any of the proceedings of the board in placing the bounty on the animals mentioned, or in calling the election, or in making the additional levy. The only questions to be decided are, whether the board had a right under the law, to make the orders and levies set out in this statement, or to issue the warrants mentioned herein."

Judgment was rendered dissolving the temporary injunction, and refusing the prayer of the petition for a perpetual injunction. From that judgment the plaintiffs appeal and bring the case here.

Judgment reversed.

A. L. Williams, N. H. Loomis, and R. W. Blair, for plaintiffs in error:

The commissioners claim authority to pay a bounty on gopher scalps by virtue of chapter 87, Laws of 1871 (P 1890, Gen Stat. of 1889); but that act is void, being in conflict with § 16, article 2, of the constitution. A mere glance at the act shows that the subject treated of is not clearly expressed in the title, or, to be accurate, is not expressed at all. Reading the title would not suggest gophers, or bounties for their scalps, or warn the reader that the passage of the act might entail 1 per cent. additional tax on all the property of the state. This clause of the constitution has been considered many times by this court, and while it may seem unnecessary to cite authorities, we call attention to a few of the cases where it has been held that certain acts were in violation of § 16, article 2. See Comm'rs of Norton Co. v. Snow, 45 Kan. 332; In re Wood, 34 id. 645; M. K. & T. Rly....

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