Graham v. Chautauqua County Com'rs

• Decision Date: 07 February 1884
• Citation: 31 Kan. 473,2 P. 549
• Parties: JOHN GRAHAM v. THE BOARD OF COMMISSIONERS OF CHAUTAUQUA COUNTY, et al
• Court: Kansas Supreme Court

2 P. 549

31 Kan. 473

JOHN GRAHAM v. THE BOARD OF COMMISSIONERS OF CHAUTAUQUA COUNTY, et al

Supreme Court of Kansas

February 7, 1884

Error from Chautauqua District Court.

ACTION brought by Graham against The Board of Commissioners of Chautauqua county, and the treasurer of that county, to restrain a collection of the taxes for 1881 upon certain steers and cows belonging to plaintiff. Trial by the court at the May and December Terms, 1882, and judgment for defendants. Graham brings the case here. The opinion states the facts.

Case remanded.$951. CATTLE, Where Listed; Collection of Tax Not Enjoined. Plaintiff, a resident of Montgomery county, owned a herd of cattle which from July or August 1880, to November, 1881, were kept in Chautauqua county. At first, and until October or November, 1880, they were kept in Sedan township; then they were driven into Belleville township and kept until May 26, 1881, when they were driven back to Sedan township, and there remained till November 1881. They were, without the knowledge of the owner, listed for taxation for the year 1881 in Belleville and not in Sedan township. Held, That under a statute providing that animals shall be listed and taxed where usually kept, the district court did not err in refusing to enjoin the collection of the Belleville township and school-district taxes levied upon the cattle.

2. CATTLE TAX--Collection, Not Restrained. Where the owner of cattle kept in a county is a non-resident, and a party who has been in charge lists them for taxation, and the valuation is fair and just, held, that injunction will not lie to restrain the collection of taxes levied thereon, on the ground that the possession and control of the cattle had been before the listing turned over to another agent of the owner.

3. TAXATION OF CATTLE; Statute, Partly Invalid. Chapter 34, Laws of 1881, so far as it provides for the taxation of cattle driven for the purpose of grazing into the state from outside its limits, after March 1st and before December 1st trespasses upon the constitutional rule of uniformity in matters of taxation, and is invalid.

Jos. Chandler, for plaintiff in error.

W. F. Lemmon, and M. B. Light, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action brought in the district court of Chautauqua county to restrain a collection of the taxes for the year 1881 upon certain personal property belonging to plaintiff. The case was tried by the court without a jury, and resulted in a judgment in favor of the defendants. The plaintiff brings the case here for review. No special findings of fact were made, but only a general finding in favor of defendants; so that upon the few matters in which there is a conflict in the testimony, we must assume the facts to be as claimed by the defendants. The plaintiff was a resident of Montgomery county. The property taxed was 190 head of steers and 52 head of cows. With respect to the latter, the facts are these: In July or August, 1880, they were in Sedan township, in Chautauqua county, and belonged to the plaintiff. Where they were situated and to whom they belonged prior to that time, does not appear. They were kept in Sedan township until October or November, 1880, when they were driven into Belleville township, where they remained until May 26, 1881. They were then driven back into Sedan township and herded there until November. What became of them after that, and to whom they subsequently belonged, is not shown. They were listed for taxation on April 29, in Belleville township by one George Edwards, who had been in charge of them, but who had prior to such listing turned them over to one Russell. The plaintiff did not know of such listing until about the first of June, 1881. The valuation placed upon them was fair and just. The law in respect to the taxation of these animals provided that they should be listed and taxed where they were usually kept. (Laws 1881, ch. 34.) Plaintiff testified that they were usually kept in Sedan township, while as heretofore stated they were listed in Belleville township. It does not appear that there was any attempt to list them for taxation in Sedan township.

Did the court err in refusing to enjoin the collection of these taxes? We think not. While the plaintiff, it is true, claimed that the property was usually kept in Sedan township, yet according to the dates and times given by himself, it is apparent that there was very little difference between the number of months in which they were kept in the two townships respectively. They were at the time of listing in Belleville township, had been there from the first of the year, and there was nothing to indicate any intention to remove them from that township. The assessor of the township, finding them there, listed them for taxation. The plaintiff never listed them in Sedan township, never informed the assessor of Belleville township that the property was only temporarily there and was to be removed to Sedan township. Under those circumstances, the assessor simply did his duty, and the plaintiff has failed to make it appear that the property was improperly listed in that township. Where the owner is a non-resident of the county, the assessor is under no obligation to call upon him personally. It is enough that he applies to the parties in actual possession of the property within the limits of the county. It is true in this case the party that listed was not at the time in such possession, but he had been; and it does not appear that the assessor was informed of any change of possession, and the property was listed at its fair value. Hence the failure to have the property listed by the party in actual possession was simply an irregularity, which did not absolutely vitiate the assessment.

As to the steers, the facts are these: They were purchased by the plaintiff in...