Franklin County Com'rs v. City of Ottawa

• Decision Date: 10 December 1892
• Citation: 49 Kan. 747,31 P. 788
• Parties: THE BOARD OF COMMISSIONERS OF FRANKLIN COUNTY v. THE CITY OF OTTAWA
• Court: Kansas Supreme Court

31 P. 788

49 Kan. 747

THE BOARD OF COMMISSIONERS OF FRANKLIN COUNTY v. THE CITY OF OTTAWA

Supreme Court of Kansas

December 10, 1892

Error from Franklin District Court.

PROCEEDING by the City against the County Board to collect a claim for the improvement of a street in front of a court-house square. The district court allowed the claim. The defendant Board comes to this court. The material facts are stated in the opinion.

Judgment affirmed.

F. A Waddle, county attorney, and John W. Deford, for plaintiff in error:

1. The main question is this, Had the city of Ottawa the power to levy a special assessment of $ 573.10 for the improvement of Main street in front of "court-house square," on Franklin county, without the consent of the board of county commissioners, and then collect it by a general personal judgment against the county? The "court-house square" is not taxable property (Const., art. 11, § 1); hence, it is not subject to this special tax. It is only taxable property that can be so assessed. Durkee v Comm'rs of Greenwood Co., 29 Kan. 697.

2. Paragraph 790, Gen. Stat. of 1889, requires such assessments "to be placed on the tax-roll for collection, subject to the same penalties and collected in the same manner as other taxes under existing laws." Paragraphs 6954 to 6975 Gen. Stat. of 1889, regulate the sale of land for unpaid taxes thereon in all other cases. Therefore, if the county should not pay this $ 573.10, her own treasurer, according to the letter of the law, would have to sell the "court-house square," or part of it, to enforce its payment. The district court, however, held that this could not be done; but that a general personal judgment, in lieu thereof, could be rendered against the county board; and so it rendered one. Where it got the authority to do so is not apparent. It is well settled that property-holders are not personally liable for these special taxes, and may refuse to pay them; thus compelling the city to make them out of the assessed lots, or not at all. Flournoy v. Jeffersonville, 17 Ind. 169, 318; Taylor v. Palmer, 31 Cal. 240; St. Louis v Allen, 53 Mo. 44; Neenan v. Smith, 50 id. 525; St. Louis v. Bressler, 56 id. 350; Mix v. Ross, 57 Ill. 121; Buell v. Ball, 20 Iowa 282; Brown v. Joliet, 22 Ill. 123.

Wherefore, this judgment deprives the county board of its right to abandon the square to the city, and binds it personally to pay the assessment, nolens volens, by levying a tax upon all the people of the county, including even the very persons who have to pay, or have already paid, this same assessment on their own lots, thereby imposing upon them double taxation.

3. Paragraphs 1611, 1612, 1630 (clauses 1, 4, 5), and 1655, Gen. Stat. of 1889, confer exclusive authority on the county board in relation to the county property, indebtedness, and expenditures. Comm'rs of Neosho Co. v. Stoddart, 13 Kan. 207. Yet, according to the court below, the city of Ottawa has absolute and exclusive control over the county, so far as macadamizing the streets on the four sides of the "courthouse square" is concerned, and may at any time compel it to pay assessments therefor.

4. The cases of County of Worcester v. Worcester, 116 Mass. 193, or 17 Am. Rep. 159, and Harris Co. v. Boyd, 70 Tex. 237, or 7 S.W. 713, are precisely in point, and cite all the authorities. We call the court's special attention to them, and particularly to the reasoning of the court in the Texas case. The decisions of the supreme court of Illinois, in County of McLean v. Bloomington, 106 Ill. 209, and Adams Co. v. City of Quincy, 130 id. 566, or 22 N.E. 624, uphold the judgment below; but these cases turned upon art. 9, § 9, of the constitution of Illinois of 1870, which is not found, either in substance or otherwise, in that of Kansas. Sioux City v. School District, 55 Iowa 150, or 7 N.W. 488; People v. Mayor, &c.. 4 N.Y. 420, or 55 Am. Dec. 266; St. Louis Public Schools v. St. Louis, 26 Mo. 468; Baltimore v. Cemetery Co., 7 Md. 517, are none of them pertinent, because the question between a county and a city within it was not involved in any of them.

5. The county is a part of the state government superior to the city in many respects. And general words in a statute, such as those in § 788, 2d subdivision, 3d clause, supra, should not be so construed as to subject the former to the latter in any wise, unless the intention of the legislature be manifest. No such power should be vested in the city by mere implication. "Municipal corporations are creations of law, and can exercise only powers conferred by law, and take none by implication." 2 Kan. 357; 5 id. 545. Besides, the terms of that clause in § 788 are clearly limited by the language of § 790, imposing the assessment only "upon the taxable property chargeable therewith." This phrase plainly evinces that the legislature did not intend that the city should levy this special tax on such property as "court-house square." But it may be asked, how then are shire towns in Kansas to obtain funds wherewith to pave the streets adjoining such squares? The answer is plain. Let the city council induce or persuade the county board to make orders, or enter into contracts, providing for the work and the means to pay for it. If they refuse, the cities should either levy the money on the taxable property within their bounds or abandon the enterprise.

H. A. Richards, for defendant in error:

There is a marked and recognized distinction between taxation, or the levying of taxes for general purposes, and assessments, or levying special taxes for improvements. Article 11 of the constitution relates to general taxation, and confers no power upon the legislature to authorize cities to make special assessments upon any property for local improvements; but § 5, article 12, directs that "provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, etc., . . . shall be so restricted as to prevent the abuse of such power." The word "assessment" is there used in its technical sense, and relates to special taxation for local improvements. Hill v. Higdon, 5 Ohio St. 243 -- 67 Am. Dec. 289; Hines v. City of Leavenworth, 3 Kan. 186; City of Emporia v. Norton, 13 id. 569.

Section 5, article 12, contains all the constitutional authority given the legislature to pass laws by which cities may be organized, with power to tax and make assessments, and contains no exemptions or restrictions, except as to the abuse of power. The great weight of authority shows that the constitutional exemption in § 1, art. 11, refers only to taxation for general purposes, and has no reference to special taxes, or assessments for local improvements. Cooley, Tax., p. 147; Hilliard, Tax., pp. 25, 26, 366, 370; 2 Dill. Mun. Corp., §§ 735, 776, 777; Hines v. City of Leavenworth, 3 Kan. 186; Paine v. Spratley, 5 id. 546; Sioux City v. School District, 55 Iowa 150; Board of Improvement v. School District, 19 S.W. 969; Hill v. Higdon, 5 Ohio St. 243--67 Am. Dec. 289, and notes.

The city has the exclusive care and control of its streets, and is responsible for all damages resulting from their dangerous condition. The legislature has given cities no power to tax or assess property to raise funds for macadamizing streets, other than that adjacent to the street macadamized. If, then, no assessment can be lawfully made against property belonging to the county, it leaves cities in the remarkable condition of being responsible for failing to do that which the legislature has given them no power to do.

That the legislature had full power, under § 5, article 12, of the constitution, to authorize a burden to be imposed upon a county, one of its own agencies, for its own benefit and for the benefit of the public, seems unquestionable. The People v. Mayor of Brooklyn, 4 N.Y. 419; 2 Desty, Tax., p. 1248, and cases cited.

To hold that the city had no authority to levy a special assessment against the property of the county, under § 32, chapter 19, for macadamizing the street adjacent to such property, would be equivalent to holding that the legislature, with full constitutional power to give such authority to cities, when it passed the act authorizing cities to make assessments for local improvements against all lots and pieces of ground adjacent to such improvements, intended that the courts should so construe the act as to exempt certain property from assessment, contrary to justice and equity.

See, also, City of Ottawa v. Rohrbaugh, 42 Kan. 258.

The plaintiff in error seems to base its argument principally upon the ground that special taxes are charges upon the property, and that the owner is not personally liable, and that in this case, because the property cannot be sold, no valid assessment can be levied against it.

In answer to the first point, we say the overwhelming weight of authority is in favor of the liability of the owner of the property. Cooley, Tax. 472, 473, and cases cited; Hassan v. Rochester, 67 N.Y. 528; McLean v. Bloomington, 106 Ill. 209; Adams Co. v. City of Quincy, 130 id. 566.

We call the attention of the court to the fact that the Missouri and California cases cited by the plaintiff in error were decided upon the point that the constitutions of the states contain no provisions like ours for the organization of cities towns, and villages, with power of taxation, assessment, etc.; and while the Illinois court had laid down the rule in regard to the special assessment of property of private owners, in 106 Ill. 209, supra, a case directly in point, the court holds that the county is liable, and that an action at law can be maintained for the amount of the assessment. The clause in the Illinois constitution relating to the organization of...