Jackson v. Kaul

• Citation: 96 P. 45,77 Kan. 717
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JACKSON et al. v. JOHN KAUL
• Decision Date: 01 January 1908
• Court: United States State Supreme Court of Kansas

96 P. 45

77 Kan. 717

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JACKSON et al. v. JOHN KAUL

Supreme Court of Kansas

January 1, 1908

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION -- Payment under Protest and Compulsion -- Action to Recover -- Interest -- Liability of a County. The general interest statute allowing creditors to receive, in the absence of contract, interest upon money after it becomes due cannot be interpreted to impose a liability upon a county, which is a political subdivision of the state organized for purely governmental purposes and endowed with quasi-corporate powers only; and, in an action against county officers to recover taxes wrongfully exacted over the protest of the taxpayer and through the compulsion of a tax warrant, interest on the money from the time it was paid (it then being due) cannot be recovered.

OPINION

OPINION DENYING A MOTION FURTHER TO MODIFY JUDGMENT.

BURCH J.:

The plaintiff sued the county officials to recover a sum of money which was illegally charged against him as personal property taxes, and which he paid under protest and under the compulsion of a tax warrant. In his petition he prayed for interest at the rate of six per cent. per annum on the amount paid from the date of payment. The district court rendered judgment for the recovery of a portion only of the sum claimed and allowed no interest. On proceedings in error in this court brought by both parties the judgment of the district court was modified, and an order was made that the plaintiff be given judgment for the whole amount he had wrongfully been compelled to pay. (Jackson County v. Kaul, ante, p. 715.) The question of interest was overlooked, and a motion is now made for a further direction to the trial court to include in its judgment interest as prayed for in the petition.

The action being grounded upon official conduct in a matter affecting the public interest, and the object being to obtain reimbursement for funds paid into the county treasury, the suit is in fact one against the county. (Reeder v. Wexford Co. Treasurer, 37 Mich. 351.) If interest be recoverable it must be by virtue of section 3590 of the General Statutes of 1901, which reads as follows:

"Creditors shall be allowed to receive interest at the rate of six per cent. per annum, when no other rate of interest is agreed upon, for any money after it becomes due."

The word "creditors" is here used in the broad sense of those who have the legal right to demand and receive the payment of money, and includes the plaintiff in the transaction under investigation. The money having been wrongfully extorted from the plaintiff by the threatened seizure of his property under the tax warrant then in the sheriff's hands for execution, the county had no right to retain it for a single day. It owed the plaintiff the duty to make restitution at once. (See 22 Cyc. 1506.) No demand was necessary, because the money had been exacted over the plaintiff's protest and denial of liability. Therefore the money was "due" as soon as the county had taken it.

So far the statute has been looked at from the creditor's side. Considered from the view-point of the debtor, it imposes a duty and a liability outside of contract which would not otherwise exist. Do its merely general terms extend to counties? The general rule that the state is not bound by statutes limiting rights or imposing burdens unless it be expressly named or be intended by necessary implication is familiar. (The State v. Book Co., 69 Kan. 1, 24, 76 P. 411, and authorities there cited.) To bind the state by an implication it must be one that is unavoidable. If there be a doubt upon the subject, that doubt must be resolved in favor of the state. (The State v. School District, 34 Kan. 237, 242, 8 P. 208.)

Counties are mere political subdivisions of the state. ( Commissioners of Shawnee County v. Carter, 2 Kan. 115.) They are mere instrumentalities of the state in the exercise of its governmental functions, and are given corporate power only so far as may be necessary to aid those functions. They are only quasi-corporations ( Comm'rs of Neosho Co. v. Stoddart, 13 Kan. 207, 210; Freeland v. Stillman, 49 Kan. 197, 207, 30 P. 235; In re Dalton, 61 Kan. 257, 264, 59 P. 336, 47 L. R. A. 380; The State v. Wilson, 65 Kan. 237, 238, 69 P. 172), and are clearly distinguished from municipal organizations like cities, which are given far greater powers and are endowed with much larger measures of corporate life. (1 Dill. Mun. Corp., 4th ed., § 25; 11 Cyc. 341 et seq.) This suit can be maintained only because it relates to a subject which falls strictly within the limits of expressly granted authority. If it does not, the county cannot be sued any more than the state itself. When the statutes have made no distinction a county is entitled to the same privileges and immunities as the state.

"A general statute, declaring or affecting rights and interests, does not include the state, unless it be included expressly or by necessary implication; and counties being but political subdivisions of the state are within the same rule." ( Cole v. White County, 32 Ark. 45, syllabus.)

In an editorial note found in 22 Am. St. Rep. 648 many cases are collated in support of the proposition that general interest statutes do not bind the states or the United States, the presumption being that such statutes were intended to...