McEntire v. Williamson

• Decision Date: 08 June 1901
• Docket Number: 12,489
• Citation: 63 Kan. 275,65 P. 244
• Parties: J. H. MCENTIRE, as Receiver, etc., v. H. R. WILLIAMSON, as Sheriff, et al
• Court: Kansas Supreme Court

65 P. 244

63 Kan. 275

J. H. MCENTIRE, as Receiver, etc., v. H. R. WILLIAMSON, as Sheriff, et al

No. 12,489

Supreme Court of Kansas

June 8, 1901

Decided January, 1901.

Error from Pratt district court; G. W. MCKAY, judge.

STATEMENT.

THIS was a suit in injunction brought by plaintiff in error, as receiver of the Wichita & Western Railway Company against H. R. Williamson, as sheriff, W. C. Gould, as treasurer, and H. C. Briggs, as county clerk, of Pratt county, Jerome Russell, as township trustee of Saratoga township in said county, William Cooper, J. W. Parker, and J B. Gibbens, as county commissioners of said county, the Investment Guarantee Trust Company, Limited (hereinafter called the trust company), S. G. Saunders, as mayor of the city of Pratt, and the Kansas Elevator and Live-stock Company, to enjoin the collection of a certain tax-warrant in the hands of said sheriff, in amount $ 975.71, upon the ground that the tax represented thereby is wholly illegal and void.

As appears from the record, prior to June, 1894, the Kingman Pratt & Western Railroad Company owned a line of railroad extending through the county of Pratt and the cities of Saratoga and Pratt, both cities of the third class in said county; that the Wichita & Western Railway Company owned and operated a line of railroad extending from the city of Wichita, in Sedgwick county, to the city of Kingman, in Kingman county; that upon said date a consolidation of said lines of railroad was effected in the name of the Wichita & Western Railway Company; that by such consolidation the Wichita & Western Railway Company succeeded to all the property, rights and liabilities of the Kingman, Pratt & Western Railroad Company; and that said consolidated line of railway was thenceforth operated as one continuous line of railway by the Wichita & Western Railway Company.

On the 1st day of July, 1886, the city of Saratoga, a city of the third class, issued its bonds in the sum of $ 12,000. The defendant trust company, in the year 1887, became, and ever since has been, the bona fide owner and holder of said bonds. In the year 1889, the trust company obtained a judgment on defaulted interest coupons clipped from said bonds against the city of Saratoga, in the sum of $ 195. In the year 1891, the trust company obtained a second judgment, on other interest coupons clipped from said bonds, against the city of Saratoga, in the sum of $ 1945. In October, 1893, the trust company applied to the district court of Pratt county in due form of law, and obtained from said court on said judgments a peremptory writ of mandamus against the mayor and city council of the city of Saratoga, and their successors in office, commanding a levy of 150 mills on the dollar on all the taxable property in said city, with which to make payment of said judgment.

During the year 1893, the mayor and councilmen of the city of Saratoga removed from said city, and there remained but thirteen inhabitants. Prior to that time, and at the time said city was incorporated as a city of the third class, and thereafter, it had a population of some 1200 souls.

In the year 1894, and upon the day by law prescribed for holding the annual city elections in cities of the third class, an election of mayor and councilmen was held in the city of Saratoga, and upon the same day the vote was canvassed and certain persons were declared duly elected to fill the offices of mayor and councilmen. Upon the same day, these persons so elected each qualified by taking the oath of office, appointed a clerk, and, in obedience to the command of the district court of Pratt county, passed an ordinance levying a tax of 150 mills on all the taxable property in said city, as commanded in the peremptory writ of mandamus, and also levied a tax of five mills with which to pay interest accruing on said bonds.

Thereafter, and on the 23d day of April, 1894, upon petition presented and election called for that purpose, there was held in the city of Saratoga an election dissolving the city as a body corporate and remitting it to its former condition as a part of the township of Saratoga, from which it was created. On the 7th day of August, 1894, the township trustee of Saratoga township, in conjunction with the board of county commissioners of Pratt county, made an additional levy of 100 mills on the taxable property in the former city of Saratoga to pay the judgments theretofore rendered in favor of the trust company and against the city of Saratoga, and a further levy of thirty-five mills on all the taxable property in the former city of Saratoga to pay interest accruing on said bonds. All of these taxes were duly extended upon the tax-rolls against the property in the former city of Saratoga, and were extended against the property of the consolidated Wichita & Western Railway Company, in the name of the Kingman, Pratt & Western Railroad Company, upon a schedule furnished by the Wichita & Western Railway Company to the board of railway assessors.

The tax so levied by ordinance of the city of Saratoga, in amount 155 mills, and the tax so levied by the township trustee of Saratoga township in conjunction with the board of county commissioners of Pratt county, in the sum of 135 mills, in the aggregate 290 mills, on the assessed valuation of the property of said consolidated railway company in the former city of Saratoga, in the sum of $ 3160, comprises $ 916.40 of the amount of taxes represented by said tax-warrant. The remainder of the sum is composed of thirty-five one-hundredths of a mill on an assessed valuation of the property of said consolidated company in Pratt county, the same being $ 139,300, or $ 48.75, and a levy of two mills on an assessed valuation of the property of said consolidated railway company in the city of Pratt, in the sum of $ 5280, or $ 10.56. This last amount, however, is admitted to be illegal and is no longer in dispute in this action.

A temporary injunction was granted by the district court, enjoining and restraining the levy of this tax-warrant and the collection of the taxes represented thereby. Upon a final hearing of said cause, such temporary injunction was dissolved, a perpetual injunction refused, and plaintiff brings the case to this court for review.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS--Excessive Tax Levy--Collateral Attack on Judgment. A valid judgment against a city on coupons clipped from municipal bonds of such city, regularly issued, and the issuance of a peremptory writ of mandamus in a proceeding regularly brought for such purpose against the officers of such city, and their successors in office, commanding them to levy a tax to pay such judgment, are conclusive on the question whether the levy ordered is in excess of the statutory power of the city to levy taxes, and cannot be again raised or retried, in a subsequent action for injunction brought by a taxpayer of the city.

2. CITIES AND CITY OFFICERS--Mandamus--Taxpayer is in Privity and Concluded by It. A taxpayer in a city is in privity with the municipal officers of such city in a proceeding brought against them in their representative capacity for the purpose of obtaining a writ of mandamus to compel the levy of a tax to pay a valid judgment against the city, and is concluded by the final decision and the issuance of a peremptory writ of mandamus upon all questions necessarily involved in the final decision and the granting of such peremptory writ, as effectively as are the parties to the record.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

B. D. Crawford, for defendants in error.

POLLOCK J. DOSTER, C. J., SMITH, J., concurring.

OPINION

POLLOCK, J.:

The first contention made by counsel for plaintiff in error is that the statute authorizing a levy of thirty-five hundredths of a mill per dollar on the assessed valuation of the property of the consolidated company within the county of Pratt, to pay delinquent state taxes, is unequal taxation, and, therefore, unconstitutional and void. This precise question was before this court in Railway Co. v. Clark, 60 Kan. 831, 58 P. 561, and there decided adversely to the contention now made by counsel for plaintiff in error. Upon a reexamination of this question, the court feels itself bound by, and adheres to, the former decision of this question there made.

The second and important contention of error in this case arises upon the construction of sections 39 and 40, chapter 60, Laws of 1871 (Gen. Stat. 1901, §§ 979, 980)....