Kansas City Ft. S. & G.R. Co. v. Scammon

• Decision Date: 07 February 1891
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY et al. v. E. C. SCAMMON, as Treasurer of Cherokee County, et al

25 P. 858

45 Kan. 481

THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY et al. v. E. C. SCAMMON, as Treasurer of Cherokee County, et al

Supreme Court of Kansas

February 7, 1891

Error from Cherokee District Court.

THE opinion states the facts. Judgment for the defendant Scammon and another, on February 10, 1888. The plaintiff Railroad Companies bring the case here.

Judgment affirmed.

Wallace Pratt, and Chas. W. Blair, for plaintiffs in error.

C. D Ashley, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

The plaintiffs in error filed their petition in the district court of Cherokee county, praying for a temporary and permanent injunction to prevent the collection of a tax levied on the railroads of the plaintiffs in error, in certain townships in said county, by the township trustees, with the concurrence of the board of county commissioners, for township bridge purposes. To this petition a demurrer was interposed, which was sustained by the court; the plaintiffs excepted to the ruling of the court, and stood upon their petition, and judgment was rendered against them for costs; to reverse the ruling and judgment of the court below, this proceeding in error is prosecuted.

The record shows a waiver of any question in regard to a misjoinder of parties, so the only question presented is the authority of the township trustees acting with the concurrence of the board of county commissioners, to levy a separate tax for township bridge purposes. The claim is made that the township tax attempted to be levied for bridge purposes is without warrant or authority of law. The authority for such a tax levy as the one complained of is found in P 7084, Gen. Stat. of 1889, which requires that the township trustee "shall, at the July session of the board of county commissioners annually, with the advice and concurrence of said board, levy a tax on the property in said township for township, road and other purposes," etc. It is insisted that the levy made under this law was three-fold: First, for the general revenue and expenses of the township; second, for road purposes in said township; third, for township bridge purposes in said township; and that the latter is illegal. Can the levy for township bridge purposes be upheld under the clause, "for other purposes?" The principle is fundamental, that there must be legislative authority for every tax that is levied, whether state or municipal; hence, we must examine the power conferred under the phrase "for other purposes," which is indeed quite broad. In defining the clause "necessary charges," Chief Justice Parker took occasion to say, in the case of Stetson v. Kempton, 13 Mass. 272:

"The proper construction of the terms must be, that in addition to the money to be raised for the poor, schools, etc., towns might raise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to employ, the support and defense of such actions as they might be parties to, and the expenses they would incur in performing such duties as the laws imposed, as the erection of powder-houses, providing ammunition, making and repairing highways and town roads, and other things of like nature; which are necessary charges, because the effect of a legal discharge of their corporate duty. The erection of public buildings for the accommodation of the inhabitants, such as town-houses to assemble in, and market-houses for the sale of provisions,...