Phelps v. Lodge

• Decision Date: 07 January 1899
• Docket Number: 10948
• Parties: C. J. PHELPS, Administrator, v. HENRY LODGE, Mayor, et al
• Court: Kansas Supreme Court

55 P. 840

60 Kan. 122

C. J. PHELPS, Administrator, v. HENRY LODGE, Mayor, et al

No. 10948

Supreme Court of Kansas

January 7, 1899

Decided January, 1899.

Original proceedings in mandamus.

Arthur Fuller, and C. A. Cox, for plaintiff.

J. L Denison, for defendants.

OPINION

ALLEN J.:

This is a proceeding against the mayor and councilmen of the city of Erie to compel them to levy taxes to pay a judgment rendered by the district court of Crawford county in favor of David Wilson, the plaintiff's intestate, against the city of Erie, which was affirmed by this court. (City of Erie v Phelps, 56 Kan. 135, 42 P. 336.) It appears from the agreed statement of facts that an execution on the judgment has been issued and returned wholly unsatisfied; that a demand has been made on the city officers to levy a tax for the payment of the judgment; that the total taxes levied on the property in the city of Erie for the year 1898 amounted to 6 3/10 per cent., of which one per cent. was city tax for general revenue. This is the only city tax. The total assessed valuation of the property of the city for the year 1898 is $ 89,340. It appears that all of the one per cent. levy for city purposes is required to meet the current expenses of the city, and that no part of it can be applied to the payment of plaintiff's judgment. The question to be determined is whether it is the duty of the city officers to make an additional levy for the purpose of paying this judgment. The contention on the part of the city is that there is no statute making it the duty of the mayor and councilmen to make the levy, and that they can only be compelled by mandamus to perform a clear and legal duty. Erie is a city of the third class. The following are the statutory provisions relating to the power and duty of city officers in levying taxes so far as they affect this case. By section 53, chapter 38, General Statutes of 1897, the mayor and council are authorized:

"1st. To levy and collect taxes for general-revenue purposes, not to exceed ten mills on the dollar in any one year, on all the real, mixed and personal property within the limits of said cities taxable according to the laws of this state."

"§ 75. At no time shall the levy of all the city taxes of the current year exceed four per cent. of the taxable property of the city as shown by the assessment books of the preceding year."

"§ 78. The council may appropriate money and provide for the payment of the debts and expenses of the city, and when necessary may provide for issuing bonds for the purpose of funding any and all indebtedness now existing or hereafter created of the city, now due or to become due. . . ." (Gen. Stat. 1889, P P 959, 965, 960.)

The power to issue bonds is restricted, however, by the succeeding provisions of the last section, and requires instruction by vote of the electors of the city as a condition precedent to their issuance. By other statutory provisions it is made the duty of the city officers to levy taxes annually to pay interest and principal on all bonds of the city.

Construing all these provisions together they amount to this, that for general-revenue purposes the tax levy is limited to one per cent. For all city purposes it is limited to four per cent. The four-per-cent. limitation has no reference to state county or any other than city...