Rathbone v. Hopper

• Decision Date: 11 July 1896
• Docket Number: 10489
• Citation: 45 P. 610,57 Kan. 240
• Parties: GEORGE D. RATHBONE v. JAMES C. HOPPER, as County Clerk of Ness County, Kansas, et al
• Court: Kansas Supreme Court

45 P. 610

57 Kan. 240

GEORGE D. RATHBONE v. JAMES C. HOPPER, as County Clerk of Ness County, Kansas, et al

No. 10489

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Original Proceeding in Mandamus.

PEREMPTORY WRIT ALLOWED.

Peremptory writ allowed.

Gleed Ware & Gleed, for plaintiff.

Buchan Freeman & Porter, for defendants; Silas Porter, of counsel.

OPINION

JOHNSTON, J.

This is an original proceeding in mandamus to compel the levy of a tax upon the property in Forrester Township, Ness County, for the payment of interest which has accrued upon refunding bonds issued by the township. It appears that in April, 1889, the township voted $ 20,000 in bonds, payable in 20 years and bearing interest at seven per cent. per annum, to aid the Ness County Sugar-Mill Company; and in October of the same year they were refunded in bonds running 30 years and bearing interest at six per cent. per annum, in accordance with the provisions of chapter 50, Laws of 1879. The petition alleges that the refunding bonds were negotiable, payable to bearer, and had been duly registered by the Auditor of the State of Kansas, who certified that they had been regularly and legally issued in conformity with the laws of the State. Default has been made in the payment of the interest, and the local authorities decline to levy a tax, claiming that the original bonds were invalid because they were issued in aid of a private enterprise, and also that the act under which they were issued does not authorize the issue of refunding bonds by townships, nor the issue of negotiable bonds, such as were issued by the township, in any case.

The questions submitted for decision are raised on a motion to quash the alternative writ, and the first is that the title of the act under which the bonds were issued is not broad enough to cover the provisions authorizing the refunding of township indebtedness. The title is as follows: "An act to enable counties, municipal corporations, the board of education of any city, and school districts to refund their indebtedness." Express authority is given in the body of the act for refunding township indebtedness. Townships are mentioned in connection with counties, cities and school districts in almost every section, and the provisions of the act apply substantially alike to each municipality, except that townships and school districts cannot refund their debts without the assent of the voters expressed at an election held for that purpose. It was the manifest purpose of the Legislature to confer authority upon townships to refund their indebtedness, and the question for decision is whether the general term "municipal corporations," employed in the title, is sufficiently broad to cover those provisions.

In this State each organized township is a body politic and corporate, with power to make all contracts that may be necessary and convenient for the exercise of its corporate powers, and in its proper name may sue and be sued. A township is generally spoken of as a municipality or municipal corporation, but, strictly speaking, every political subdivision of the state organized for the administration of civil government is a quasi corporation. In this respect they are placed on the same plane as counties and school districts, and in this Court, in determining the liability of this class of corporations for failure to perform some corporate duty, or for the neglect or misfeasance of its officers and agents, it has been held that counties, townships and school districts are not municipal corporations proper, and that their liabilities in this respect are not the same as incorporated cities, towns and villages. Beach v. Leahy, Treasurer, 11 Kan. 23; Eikenberry v. The Township of Bazaar, 22 id. 561; Comm'rs of Marion Co. v. Riggs, 24 id. 255; Freeland v. Stillman, 49 id. 197. In all these cases and for the purpose of determining their liabilities and powers, the distinction between municipal corporations proper and other public corporations has been made. In the broader sense and in common usage the term "municipal corporations" includes counties and townships. All public corporations, including counties, cities and townships, are frequently referred to as municipalities and municipal corporations to distinguish them from private corporations, and it is not uncommon to find them so designated in the State and Federal courts and in the published reports of their decisions. In a very recent case Chief Justice HORTON referred to a township as a "public municipal corporation," and the same language is employed both in the syllabus and in the opinion. Riley v. Garfield Township, 54 Kan. 463, 38 P. 560. In 15 Am. & Eng. Encyc. Law 953, the following definition is given:

"A municipal corporation, in its broader sense, is a body politic, such as a state, and each of the governmental subdivisions of the state, such as counties, parishes, townships, hundreds, New England 'towns,' and school districts, as well as cities and incorporated towns, villages and boroughs. Every one of these is properly susceptible of the general appellation."

Here, then, we have in the title a term which, if taken in the broader sense and popular signification, would include townships, and render the act valid; while, if taken in the more restricted and technical sense, it would render it invalid. What sense shall be imputed to the Legislature, and which interpretation should be given to the term? No one can doubt that the Legislature intended to make a title broad enough to cover the provisions of the act with reference to townships, and this is the more apparent from the amendments made to the act long after the passage of the original act and after large amounts of township indebtedness had been refunded under its provisions. Ch. 163, Laws 1891; ch. 113, Laws 1893. The obvious intention of the Legislature is entitled to great weight in determining the sufficiency of the title. In Woodruff v. Baldwin, 23 Kan. 494, it was held in a similar case to be more just and fair to say that the Legislature used the title in its broadest sense -- a sense broad enough to include the subject-matter of the act, rather than to apply the restricted meaning which would to some extent defeat the legislative purpose. The same view was taken in In re Pinkney, Petitioner, 47 Kan. 89, 27 P. 179. There, a term was employed in the title to an act which, if given the broader meaning, would uphold the act, while by giving it the narrower and perhaps more common meaning would render it invalid, and it was held that the Legislature, having employed the word in its broadest sense and one which fairly covered the provision assailed, the Court was not warranted in adopting the narrower meaning and thus holding the act invalid. It was said that the fact that general terms are employed in the title does not render it objectionable so long as the title to the act is such that neither the members of the Legislature nor the people to be affected can be misled. The defendants place some reliance upon the language used in Freeland v. Stillman, supra, but an attentive reading of the decision shows that it is not controlling. In that case, the Court was not considering the title to an act, but was endeavoring to ascertain the intention of the Legislature, and from the connection in which "municipal corporations" was used it could be readily seen that school districts were not within the purpose of the Legislature in framing the act. Here, the provisions of the body of the act in question show beyond cavil that the Legislature intended to authorize townships to refund their indebtedness; and we have to decide whether that intention shall be thwarted by a technical interpretation of the title to the act.

In making the distinction between the different kinds of public corporations it is common to refer to cities as municipal corporations proper. This is a discriminating expression frequently used by the courts of this State, and if that term had been employed in the title there would be some reason for the strict interpretation for which the defendants contend. A technical interpretation, however, has never been applied in this State to the titles of legislative acts. On the other hand, it has been consistently held that the constitutional limitation should not be enforced in any narrow or technical spirit, but should be liberally interpreted with a view of upholding the acts of the Legislature. It has been regarded to be the duty of the Court to view the acts of the Legislature with great respect, and so far as possible endeavor to reconcile and sustain them. Illustrations of liberal interpretations placed upon the titles of acts may be found in almost every volume of our decisions, but we need only refer to a few of them. Woodruff v. Baldwin, supra; Philpin v. McCarty, Supt., &c., 24 Kan. 393; Comm'rs of Marion Co. v. Comm'rs of Harvey Co., 26 id. 181; Comm'rs of Cherokee Co. v. The State, ex rel., 36 id. 337; Mo. Pac. Rly. Co. v. Harrelson, 44 id. 253; The State v. Bush, 45 id. 140; In re Pinkney, Petitioner, 47 id. 89; The State, ex rel., v. Lewelling, 51 id. 562; In re Sanders, Petitioner, 53 id. 191; Lynch v. Chase, 55 id. 367; Rogers v. Morrill, 55 id. 737.

The act has been in force for more than 17 years, and upon the theory that the title was good and the act valid a vast number of the townships of the State have issued bonds which have been negotiated in the money markets of the country and accepted as valid securities. The official reports show that the State holds a considerable amount of such bonds, purchased as an investment of the permanent school fund and other funds. The validity of the act is assailed here for the first time, but we think the scope and effect of the...