Shearer v. Murphy

• Decision Date: 05 October 1901
• Docket Number: 12,349
• Citation: 66 P. 240,63 Kan. 537
• Parties: ANDREW SHEARER, as Treasurer, etc., v. PATRICK MURPHY et al
• Court: Kansas Supreme Court

66 P. 240

63 Kan. 537

ANDREW SHEARER, as Treasurer, etc., v. PATRICK MURPHY et al

No. 12,349

Supreme Court of Kansas

October 5, 1901

Decided July, 1901.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION -- Injunction -- Necessary Parties. A board of county commissioners being a necessary party to a suit to enjoin the collection of taxes due to the county, or to the political subdivision of which it is the legal representative in matters of tax collection, a judgment in such suit rendered against the county treasurer, to which he alone was defendant, cannot be reviewed in this court, but must be reversed for the lack of the necessary party, although no objection was made to it on that ground in the court below.

George H. Wilson, and W. R. Cowley, for plaintiffs in error.

Blue & Glasse, for defendant in error.

DOSTER C. J. JOHNSTON, GREENE, POLLOCK, JJ., concurring.

OPINION

DOSTER, C. J.:

This was an action of injunction to restrain the collection of taxes on real estate. It was brought by defendants in error against plaintiff in error, as county treasurer, and also against the city of Empire. The board of county commissioners was not made a party. Subsequently defendants in error, plaintiffs in the court below, dismissed the action as to the city, leaving it to stand against the county treasurer alone. A demurrer to the petition on the single ground of the insufficiency of the facts alleged to constitute a cause of action was filed and overruled. The defendant, the county treasurer, elected to stand on his demurrer, whereupon a judgment of permanent injunction was rendered against him. From the order overruling the demurrer and from the order of final judgment in injunction error has been prosecuted to this court. However, no objection to the judgment was made in the court below, nor objection made in any form to the defect of parties. Notwithstanding this omission, the judgment must be reversed for the lack of that necessary party defendant upon whom, to be effectual, it must operate.

The case of Jeffries-Ba Som v. Nation, ante, p. 247, 65 P. 226, was an action against the county treasurer and sheriff to enjoin the collection of personal-property taxes. It was held that the proceeding could not be maintained, because of the lack of the board of commissioners as a party defendant. In the opinion it was said, with a citation to many authorities:

"While the treasurer and sheriff are proper parties to the suit, yet they are mere nominal parties. The board of county commissioners of the county is the real party in interest. It has long been the settled law of this state that a permanent injunction will not be granted until all whose legal rights are to be directly affected are made parties to the action."

However, in that case and perhaps in all others, the defect of parties was specifically pointed out in the court below by demurrer or otherwise. In this case it was not so done. The objection is made for the first time in this court. Nevertheless, we are of the opinion that the lack in the court below of a party defendant so necessary to the rendition of a judgment enjoining the collection of taxes as is the board of county commissioners is a defect which would deprive a judgment of affirmance, should it be rendered, of any operative effect, and will therefore justify us in refusing to render such a judgment in this case, even though the demurrer to the petition on the ground alleged was rightly overruled. A judgment can operate only on the parties properly before the court, and if an indispensable party is not before the court so as to be bound by the judgment, it would be as futile for a reviewing tribunal to affirm it as it was for the trial court to render it.

To the board of county commissioners in general is committed all of the interests of the county and many of the interests of its political subdivisions. The duty to levy all county taxes and many of the taxes of such subdivisions is imposed upon that tribunal. A county is the political instrumentality through which taxes are collected and disbursed, while, as stated in Carpenter, Treas., v. Hindman, 32 Kan. 601, 5 P. 165, the treasurer "is simply the agent of the county to receive the taxes levied and pay the money received to the persons or parties entitled to it."

In Gilmore v. Fox, 10 Kan. 509, an injunction to restrain the county treasurer and county clerk from collecting a special assessment on town lots to pay for street improvements was asked. The city which made the assessment was not joined as defendant. The...