Riley v. Township of Garfield

• Decision Date: 08 December 1894
• Parties: LEWIS A. RILEY v. THE TOWNSHIP OF GARFIELD, IN FINNEY COUNTY, et al
• Court: Kansas Supreme Court

38 P. 560

54 Kan. 463

LEWIS A. RILEY v. THE TOWNSHIP OF GARFIELD, IN FINNEY COUNTY, et al

Supreme Court of Kansas

December 8, 1894

Original Proceeding in Mandamus.

ON the 20th of August, 1894, Lewis A. Riley filed his application in this court, duly supported by affidavit, for a writ of mandamus to compel a levy on the taxable property of the township of Garfield, of Finney county, sufficient in amount to pay the matured and maturing interest coupons of certain refunding bonds of Garfield county owned by him, and also a levy to create a sinking fund for the payment of the principal of the bonds. Thereupon, an alternative writ of mandamus was issued, which alleged, among other things:

"That subsequently to the registration of the refunding bonds of Garfield county, Riley became, and ever since has been, and still is, the bona fide owner and holder of five of said bonds, namely, bonds No. 33, No. 34, No. 35, No. 36, and No 37, each of which was and is for the principal sum of $ 200 except bond No. 37, which was and is for the principal sum of $ 310, and that to each of the bonds owned and held by plaintiff as aforesaid there were attached 60 semiannual interest coupon, payable, respectively, on the 1st of January and the 1st of July in each year from and after the date of said bonds; that each of the coupons attached to bonds numbered 33, 34, 35 and 36 was for the sum of $ 6, and that each of the coupons attached to bond No. 37 was for the sum of $ 9.30; that no interest has been paid on any of said bonds or coupons owned and held by plaintiff since the 1st of January, 1892, and that there was due and owing to plaintiff on the 1st day of July, 1894, on interest coupons which have matured since January, 1892, the aggregate sum of $ 166.50 that he has presented said past-due coupons at the fiscal agency of the state of Kansas at the city of New York, where the same were made payable, and demanded payment thereof, and that payment was refused; that by chapter 98 of the Laws of Kansas passed in the year 1893, which chapter took effect on the 18th of March, 1893, the territory theretofore comprising the county of Garfield (and the whole thereof) was made one municipal township of Finney county, by the name of 'Garfield township,' whereby the territory previously known as a body corporate and politic by the name of 'Garfield county' became a body politic and corporate by the name and style of 'Garfield township,' by which latter name it ever since has been and still is known and recognized, and that by the terms and provisions of said chapter 98 of the Laws of 1893 the territory constituting said Garfield township was not in anywise to become liable for any of the indebtedness theretofore existing against Finney county, nor was Finney county in anywise to become liable for the indebtedness theretofore created by and existing against the organization known as Garfield county; that none of the refunding bonds so owned and held by said Lewis A. Riley have been paid in whole or in part, and that no interest has been paid on either of said bonds or on the coupons thereto attached since the 1st day of January, 1892; and that by reason of the premises the indebtedness created by Garfield county as aforesaid, and evidenced by said refunding bonds, has become and is an indebtedness against said township of Garfield.

"And whereas, it has been made to appear that said township of Garfield, notwithstanding the premises, designing and intending to repudiate the indebtedness created as aforesaid, and existing against said county of Garfield at the time of the taking effect of chapter 98 of the Laws of 1893, hereinbefore referred to, neglected and refused to levy or cause to be levied a tax upon the taxable property situated and being in said township, in the year 1893, for the purpose of paying the matured and maturing interest coupons on said refunding bonds so owned by said Lewis A. Riley; that said Riley, having been advised that the township officers of said Garfield township were claiming that the bonds issued by Garfield county were not legal obligations against Garfield township, and that it was their purpose to repudiate the payment thereof, in July 1894, caused a notice and request to be duly served on W. S. Johnson, the trustee of said township of Garfield, and a like notice to be duly served on E. L. Hall, chairman of the board of county commissioners of Finney county, and also on H. L Wolfe and Charles McFadden, the other members of said board of commissioners, requesting said trustee to levy a tax as authorized by law on the taxable property of said Garfield township for the purpose of paying the matured and maturing interest coupons of said refunding bonds, and requesting said commissioners, as the board of county commissioners of said Finney county, to meet with said trustee at the July session, 1894, of said board, and advise and concur with said trustee in making the levy of taxes, as aforesaid, and that if said township trustee should fail to concur with said board of county commissioners, then that said county board should levy said taxes, as by law they are authorized to do."

The writ concluded as follows:

"Now, therefore, we, being willing that speedy justice shall be done in the premises, do command and enjoin you, the said W. S. Johnson, as trustee of said township of Garfield, and you, the said E. L. Hall, H. L. Wolfe, and Charles McFadden, as county commissioners, and as being and constituting the board of county commissioners of said Finney county, that upon the receipt of this writ, and on Saturday the 1st day of September, 1894, at 10 o'clock A. M. of that day, you assemble at the office of the county clerk of said Finney county, and that you, the said Hall, Wolfe, and McFadden, convene as the board of county commissioners of said county, and that you, the said Johnson, as trustee as aforesaid, then levy on the taxable property of your said township of Garfield a tax sufficient in amount to pay the matured and maturing interest coupons on the refunding bonds so as aforesaid owned and held by said Lewis A. Riley, and also the necessary tax authorized and required by said chapter 50 of the Laws of 1879 to create a sinking fund for the payment of the principal of said refunding bonds, and that you, the said defendant board of commissioners, then and there advise and concur with said township trustee in making such levies; or, if he shall fail or refuse to attend at the time and place aforesaid, or if he shall fail or refuse to make said levies as herein commanded, or if you, as a county board, and said Johnson, as said township trustee, shall fail to concur in making such levies, then you, the said Hall, Wolfe, and McFadden, as county commissioners as aforesaid, are hereby commanded to forthwith, and at the time and place aforesaid, make the said levies of taxes for the purposes aforesaid, as by the provisions of section 22 of the act relating to townships and township officers you are authorized and required to do; or, in default of doing as you are hereinbefore commanded, you, the said W. S. Johnson, as said township trustee, and you, the said E. L. Hall, H. L. Wolfe, and Charles McFadden, as county commissioners as aforesaid, will show cause, if any you have, before the supreme court of this state, at the supreme court room, in the state capitol, at Topeka, on Friday, the 7th day of September, 1894, why you have not done as herein commanded and required; and have you then and there this writ, with your return thereon."

The alternative writ of mandamus was served on the defendants on the 22d and 23d of August, 1894. On the 7th of September, the defendants filed their motion to quash the alternative writ, which motion, after the title thereof, is as follows:

"The defendants in the above-entitled action hereby severally ask the court to quash the alternative writ of mandamus heretofore issued herein, for the reason that such writ fails to state facts sufficient to entitle the plaintiff to the relief asked."

Afterward the parties entered into a written stipulation respecting the area of Garfield county, which stipulation, after the title thereof, is as follows:

"This court having found and determined, on 7th March, 1893, in action No. 8107 in this court, wherein The State, ex rel., was plaintiff, and Thomas Rowe and others, as officers of Garfield county, were defendants, that Garfield county, as created by § 6 of chapter 81 of the Laws of 1887, and as constituted at the time of the making of such decision, contained less than 432 square miles, namely, only 430 1/2 square miles, it is now stipulated by and between the parties to this proceeding, for the purpose of the motion filed herein by defendants on 7th September 1894, to quash the alternative writ of mandamus, and for all questions and purposes herein, down to and including final judgment, that said county of Garfield, during all the time of its existence as an organized county, contained only 430 1/2 square miles; and this admission shall be held and taken to have the same force and effect as if the same had been set forth or stated in said alternative writ of mandamus. W. C. WEBB, Attorney for Plaintiff.

J. W. PARKER AND H. F. MASON,

Attorneys for Defendant."

The motion to quash is urged upon the following grounds:

"1. The writ shows on its face that the validity of the obligations to enforce which a peremptory writ is sought is denied. Plaintiff should therefore be required to reduce his claim to a judgment by an ordinary action at law before applying for a writ to compel payment.

"2. The writ, coupled with the stipulation on file, shows that the purported corporation issuing the bonds sued upon had no legal existence. There is, therefore, a...