[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Error
from Morris District Court.
ACTION
brought on December 19, 1882, by Andrew W. Hinchman against
The Board of Commissioners of the County of Morris; A. Moser
Jr., clerk, and W. H. White, treasurer of said county
Council Grove township, in Morris county, and J. J. Jones,
trustee thereof, to enjoin and restrain the defendants and
their successors in office from levying and collecting or
attempting to levy and collect any tax upon the real estate
of the plaintiff in Valley township, in said county, to pay
the interest and provide a sinking fund upon certain bonds
issued by Council Grove township, March 1, 1873; also, for a
judgment and decree declaring that said bonds were void as to
the plaintiff, and not a lien on his property. A temporary
order of injunction was obtained on December 19, 1881,
restraining and enjoining the defendants from making said
levy or collecting said tax; on January 25, 1882, an amended
petition was filed by the plaintiff, setting forth additional
and supplemental averments; on April 26, 1882, Council Grove
township, and J. J. Jones, as trustee, filed a cross-petition
and answer to the amended petition; on May 4, 1882, the
plaintiff filed a reply to the cross-bill and answer; on
April 20, 1883, the board of commissioners of Morris county
filed a disclaimer to the petition.
Trial
at the April Term, 1883. The court, from the admissions of
the parties, the allegations of the pleadings, and the
evidence, found the following facts, viz.:
"1.
Said Morris county was duly organized prior to the year 1860.
"2.
On March 17, 1860, the board of county commissioners of said
county duly organized and formed said Council Grove township,
embracing the following lands and none other, viz.:
'Council Grove township shall be composed of townships
Nos. 16 and 17 S., of ranges 7 and 8 E., and parts of
townships Nos. 16 and 17 S., of range No. 9 E.; and bounded
as follows: On the south and east by the county line; on the
north by a line dividing townships Nos. 15 and 16 S.; and on
the west by the range line dividing ranges Nos. 6 and 7, east
of the sixth principal meridian.'
"3.
At the time mentioned in finding No. 2, March 17, 1860, a
two-mile strip containing sections 1, 2, 11, 12, 13, 14, 23,
24, 25, 26, 35, and 36, in townships 16 and 17 S., of range 9
E., were a part of Breckinridge (now Lyon) county, and that
thereafter, by chapter 22, Laws of 1864, the two-mile strip
above described was taken from said Breckinridge county and
added to said Morris county.
"4.
Said board of county commissioners made no formal change in
the east boundary line of said Council Grove township by any
resolution or order defining boundaries, from March 17, 1860,
until April 15, 1874, when they formed and organized Valley
township, a proper description of which is set out as
'Exhibit A' to plaintiff's petition. But as an
assumed modification of this finding the defendant showed the
following proceedings, of record in the office of said county
clerk, as the action of' the board of county
commissioners at a meeting duly held January 13, 1874.
"The
following petition of Wm. H. Martin, Wm. H. Hubbard, Patrick
O'Donnell, and thirty-four others, was taken up:
'To
the Hon. Board of County Commissioners of Morris County,
Kan.: We, the undersigned citizens and legal voters of Morris
county, residents within the following-described territory,
most respectfully petition and pray your honorable board to
establish a voting precinct, to be bounded as follows:
Commencing at the west boundary line on section 24, township
16, range 8, between lots 2 and 3; thence on a direct line
south to the township line between townships 16 and 17;
thence west on said township line to the east line of Elm
Creek township; thence south on said line to the south
boundary line of Morris county; thence east on the said
boundary line to the east boundary line of Morris county;
thence north on said boundary line to section 24, township
16, range 9, between lots 1 and 4; thence due west on said
line to point of beginning; said precinct to embrace all of
the Kaw diminished reserve land except that part lying west
of sections 24, 25, and 36, in township 16, range 8. For all
of which, we, your petitioners, will ever pray.'
"On
motion, the petition was granted, and the voting precinct
ordered established as prayed for, said precinct to be known
by the name of Kaw Land precinct, Council Grove township, and
the place for holding the first election to be at the Agency.
"5.
This plaintiff was at the time of the commencement of this
suit, and now is, the owner of the real estate described in
his petition herein, and so much as is in said sections 11
and 35, lies in said two-mile strip and all in said Valley
township, and said section 34 was in Council Grove township
as organized in 1860.
"6.
On January 8, 1873, and not before, there was presented to
the township board of said Council Grove township, in words
and figures, the following:
'COUNCIL
GROVE, MORRIS COUNTY, KANSAS,
January
8, 1873.
'To
the Hon. Trustee of Council Grove Township: We, the
undersigned, citizens and tax-payers of said township, do
most respectfully petition your honorable body to submit a
proposition to vote the sum of fifteen thousand dollars in
bonds towards the construction of a court house for Morris
county, to be erected on the court-house site in the city of
Council Grove, Morris county, Kansas.'
Which
said petition was signed by thirty-eight persons and no more,
three only of whom in what is now Valley township, but
neither of them on the said two-mile strip; but said
plaintiff did not sign said petition.
"7.
The said election to vote for said bonds was held on January
28, 1873, and the only notice thereof was given by the
publication in a weekly newspaper on January 11th, 18th, and
25th, 1873.
"8.
Said bonds were issued March 1, 1873, fifteen in number, each
in the sum of $ 1,000, and numbered from one to fifteen
inclusive, a perfect printed copy of which, with coupons
attached, is set out and attached to the answer of Council
Grove township, filed herein April 26, 1882.
"9.
The officers issuing such bonds did not make registration
thereof in a book kept for that purpose specially, but did
register them in the book kept by the township trustee for
the general purposes of his office. The township bad no
special book for registering bonds.
"10.
Said bonds were never delivered to the treasurer of state to
be held in escrow, but were sold immediately after, March 15
1873, in the city of New York, for ninety cents on the
dollar, and the proceeds thereof were used exclusively in the
building of said court house.
"11.
Said bonds were duly registered by the auditor of state,
March 15, 1873.
"12.
Said court house was built on lots owned by said Morris
county prior to January 6, 1873, and ever since so Owned by
said Morris county.
"13.
Said plaintiff did not vote on the proposition to issue said
bonds, on January 28, 1873.
"14.
At said election for said bonds there were cast 144 votes for
and three votes against such bonds, and in said vote eleven
(11) persons voted on said proposition who resided in what is
now Valley township, but none of them resided on the said
two-mile strip except Geo. W. See.
"15.
Said plaintiff moved into Morris county in 1873, and the only
time he ever voted at Council Grove was at the general
election in November, 1873, and he then resided on the said
two-mile strip, and voted at Council Grove township polls.
"16.
Said plaintiff has regularly paid his taxes every year
subsequent to 1873, including the tax levied to meet the
interest on these bonds, including the tax on his real estate
above described, until he brought this suit to enjoin the
collection of such particular tax levied for 1881.
"17.
The two-mile strip, so far as it bad any connection with the
subject-matter of this suit, was a strip two miles east and
west by twelve miles north and south, and previous to the
year 1873 the United States had only permitted settlers upon
the north three miles thereof, which said three miles did not
embrace any of the plaintiff's land; and between the
years 1864 and 1874 there were comparatively few people on
any of said two-mile strip.
"18.
Prior to the creation of Kaw Land precinct, mentioned in
finding No. 4, the city of Council Grove was the only place
where anyone living in what is now Council Grove and Valley
townships could vote.
"19.
From 1864 to 1874, it was popularly understood by all the
folks in Morris county that said two-mile strip was a part of
Council Grove township, and such fact was neither considered
nor questioned, and so soon as any of the property thereon
became taxable, the taxing officers of Council Grove township
assessed it for taxation, and collected such taxes; and one
man, not this plaintiff, living on said two-mile strip, was
once elected justice of the peace of said Council Grove
township, but never qualified. From the time the two-mile
strip was added to Morris county, in 1864, for a period of
ten years and up to the time Valley township was organized
in 1874, the inhabitants of the two-mile strip considered
themselves in every respect as citizens of Council Grove
township, and generally voted at the elections in said,
township and acted as Judges of said election, and
participated in the township government and in nominating the
officers of said township, and took part in all township
political meetings, and paid township taxes, and claimed to
be citizens of said township of Council Grove; and neither
said strip nor the inhabitants...
