McCall v. Goode
| Decision Date | 10 December 1949 |
| Docket Number | No. 37777,37777 |
| Citation | 168 Kan. 361,212 P.2d 209 |
| Parties | McCALL et al. v. GOODE et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. An assessment against property based on contemplated benefits from improvements is not in the constitutional sense a tax.
2. Repeals by implication of law are never favored.
3. The provisions of article 6, chapter 24, (G.S.1935, 24-601, to 24-653) authorizing the organization of a drainage district and the making of assessments on each tract of land therein on the basis of contemplated benefits were not repealed or rendered inoperative by the provisions of the cash-basis law, budget law or the tax-limitation law of 1933 and amendments thereof.
4. The drainage act expressly requires the employment of an engineer, authorizes the employment of an attorney and provides they shall be compensated for services rendered and expenses incurred in the discharge of their duties.
5. An original record in a mandamus action to compel the collection of assessments regularly made on land in a drainage district examined, and held, the drainage district is a going concern and the levy must be made in accordance with the drainage act and not on the basis of the value of land in the district.
R. O. Robbins, of Sedan, argued the cause and was on the briefs for the plaintiffs.
Roy Kirby, County Attorney, Coffeyville, argued the cause, and Glenn T. Crossan, Deputy County Attorney, Independence, was with him on the briefs for the defendant, A. M. Eckelberry.
John F. O'Brien, of Independence, and T. D. Hampson, of Fredonia, argued the cause, and O. L. O'Brien, of Independence, was with them on the briefs for the intervenors.
This is an original mandamus action instituted by members of the board of supervisors of Little Caney River Drainage District against the county treasurers of Montgomery and Chautauqua counties.
The motion for the writ prays for an order directing the county treasurer of Montgomery county to pay over to the county treasurer of Chautauqua county certain sums of money collected by the former as protested and as unprotested assessments on land in the district; to direct the county treasurer of Chautauqua county upon receipt of such funds to credit them, and also the moneys held by him as protested assessments, to the account of the plaintiff drainage district in order to make them subject to warrants to be drawn thereon by the plaintiff board and to restrain the defendants from refunding any of such funds to the taxpayers or other persons pending a decision in this court.
The two defendant county treasurers really are not contentious parties but, as public officials, are merely refusing to act until their official duties in the premises are determined. Various landowners in the district have intervened in opposition to the tax or assessment contending it is wholly illegal and void. As indicated some of them paid the assessments under protest while others paid them, or parts thereof, without protest. For present purposes we need not determine the sufficiency of the protests.
In addition to nine complaining landowners the engineer who was employed by the drainage district board to make a survey, and did so, has intervened and seeks to recover compensation for services rendered.
The action is being tried on an agreed statement of facts. It is unnecessary to set forth all of them in detail. In view of the conclusion we have reached on the principal legal questions involved many of the detailed facts become immaterial. The substance of the material facts agreed upon is appended hereto and made a part hereof.
The principal contention of the intervening landowners is the assessment made (they choose to call it a tax) on the land in the drainage district is illegal and void in that it violates the budget law, G.S.1935, 79-2925 to 79-2937, and the cash-basis law, G.S.1935, 10-1101 to 10-1122, and amendments thereof.
On the other hand the drainage board and the intervenor, its engineer, contend those acts enacted in 1933 are not applicable, that they did not expressly repeal the earlier drainage district act here involved and in nowise repealed provisions of that act by implication.
The last contention was in principle upheld by this court in a well reasoned opinion involving the building of a courthouse in Republic county under provisions of another law, G.S.1935, 19-1503, 19-1505, pursuant to a petition of resident taxpayers. It was held the provision of the law authorizing the levy of a special tax to procure funds for that purpose was not expressly repealed or by implication rendered inoperative by provisions of the cash-basis law, the budget law or the tax-limitation law of 1933, G.S.1935, 10-1101 et seq., 79-2925 et seq., 79-1945 et seq. State ex rel. Ward v. Board of Com'rs of Republic County, 148 Kan. 376, 82 P.2d 84. Moreover, it was expressly held in that case the authority to build the courthouse by means of the special tax came clearly within the exceptions of the budget law, the cash-basis law and the tax-limitation law. 148 Kan. page 382, 384, 82 P.2d 84. The anaylsis of the subject was thorough. What was there said need not be repeated here but is incorporated herein by reference.
Repeals by implication are, of course, never favored. Wolff v. Rife, 140 Kan. 584, 38 P.2d 102; State ex rel. Ward v. Board of Com'rs of Republic County, supra, 148 Kan. page 383, 82 P.2d 84. No sound reason is suggested or appears to us for holding the decision and reasoning in the Republic county case is not equally applicable and controlling here. Having so concluded we need not pursue the further question argued by the parties whether it would be possible for the drainage district to function under the budget, cash-basis or tax-limitation laws.
It is well understood an assessment against property by reason of benefits to be derived from an improvement is not in the constitutional sense a tax. Although it has been said assessments for local improvements form an important part of the system of taxation such assessments differ from general taxes. An assessment, as distinguished from other kinds of taxation, is that special and local imposition upon the property in the immediate vicinity of municipal improvements, which is necessary to pay for the improvement, and is laid with reference to the special benefit which the property is supposed to have derived therefrom. 5 McQuillin on Municipal Corporations, 2d Ed. rev., § 2165; State ex rel. Drainage District No. 28 of New Madrid County v. Thompson, 328 Mo. 728, 41 S.W.2d 941; Eubank v. City of Ft. Worth, Tex.Civ.App., 173 S.W. 1003; City of Kalispell v. School District No. 5, 45 Mont. 221, 122 P. 742, Ann.Cas.1913D, 1101; Santa Clara Valley Land Co. v. Meehan, 62 Cal.App. 531, 217 P. 787.
The assessments here are made in contemplation of benefits that will accrue to each tract of land in the district by reason of the improvements. G.S.1935, 24-609. All provisions of the drainage law contained in the General Statutes of 1935 will be designated by sections.
It is true consideration of the engineer's report by the drainage board resulted in disapproval of the particular project submitted by him. It is, however, also stipulated the drainage district has not been disorganized as it is possible to do under an amendment enacted in 1929. Section 24-647. The result is for our present purposes the district must be regarded as a going concern. Section 24-609 requires the board, it has no alternative in the matter, to have a topographical survey made of the district by some competent engineer and to have him assess the benefits accruing to each tract of land. The board employed an engineer and he performed.
The drainage board was also authorized to employ an attorney to represent and advise it. Sections 24-608, 24-614. Section 24-617 implies the need for an attorney. Section 24-633 authorizes the board to compensate its attorney, engineer, other officers and employees of the district for services rendered and expenses incurred. The board employed an attorney. He performed. It has been held an attorney's compensation may be recovered from the board in a mandamus action. G.S.1935, 60-1710; Fidelity Nat. Bank and Trust Co. of Kansas City, Mo., v. Morris, 130 Kan. 290, 291, 296, 286 P. 206.
The only remaining question in this case is whether the indebtedness created by the drainage board is to be paid on the basis of the...
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