State Ex Rel. Robb v. Hordey

• Decision Date: 10 May 1889
• Citation: 41 Kan. 630,21 P. 601
• Parties: THE STATE OF KANSAS, on the relation of W. H. Robb, County Attorney, v. THE BOARD OF COMMISSIONERS OF KIOWA COUNTY
• Court: Kansas Supreme Court

21 P. 601

41 Kan. 630

THE STATE OF KANSAS, on the relation of W. H. Robb, County Attorney, v. THE BOARD OF COMMISSIONERS OF KIOWA COUNTY

Supreme Court of Kansas

May 10, 1889

Original Proceeding in Mandamus. THE opinion, filed on May 10, 1889, contains a sufficient statement of the facts.

W. H Robb, for plaintiff.

Rush & Dempcy, and Johnson, Martin & Keeler, for defendants.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is a proceeding in mandamus, originally brought in this court in the name of the state of Kansas, upon the relation of the county attorney of Edwards county, to compel the county commissioners and county clerk of Kiowa county to extend a tax levy upon certain territory in Kiowa county which formerly formed a part of Edwards county, to pay the interest on bonds of Edwards county which were issued before the territory named was detached from Edwards county and made a part of Kiowa county. The alternative writ recites that prior to the taking effect of the act of February 11, 1886, which re-created the county of Kiowa, a portion of which was taken from the county of Edwards, Edwards county had issued $ 12,000 re-funding bonds, bearing interest at 6 per cent., falling due July 1, 1908; $ 2,000 bridge bonds, bearing interest at 7 per cent., falling due July 5, 1901; $ 20,000 court house and jail bonds, bearing interest at 7 per cent., falling due in the year 1905; the interest on all of the bonds being payable annually. It is further stated that these bonds were legally authorized by a vote of the people of Edwards county, were legally issued, and had passed into the hands of purchasers before the passage of the act of 1886. Further, it is alleged that in the year 1887 the board of county commissioners of Edwards county made a levy to meet the interest on the bonds mentioned, as follows: To pay interest on re-funding bonds, three-fourths of a mill; on bridge bonds, one-tenth of a mill; on court-house and jail bonds, one and one-half mills. It is then stated that on or about August 2, 1887, the county clerk of Edwards county, under the direction of the county commissioners of that county, notified the clerk of Kiowa county of the action of the board of county commissioners in making said levy, as provided by law, and requested that the same levy be made by the county of Kiowa on the territory which was detached from the county of Edwards, but that the commissioners and clerk of Kiowa county refused and neglected to make the levy.

The defendants, in their answer and return to the alternative writ, deny that any portion of the territory of Kiowa county ever formed a part of Edwards county; or that the county commissioners of Edwards county had authorized and issued the re-funding bonds upon a vote of the electors of the county. They allege that the court-house, jail and bridge bonds were not legally issued, for the reason that the elections authorizing their issue were not legally held. They also allege that the board of county commissioners of Edwards county did not lawfully levy the taxes, and the clerk of that county did not lawfully notify the clerk of the county of Kiowa of the action taken with respect to the levy, and did not lawfully request that the levy be made by the county of Kiowa, as alleged in the alternative writ. The defendants finally aver that at the time of the passage of the act of February 11, 1886, the territory alleged to have been detached from the county of Edwards was public lands of the United States, not occupied or settled upon under the preemption, homestead, or other laws of the United States, and were therefore not subject to taxation.

The case was submitted upon an agreed statement of facts, in which it was admitted that the re-funding bonds mentioned were issued to fund the outstanding debt of Edwards county, and that neither the debt nor the re-funding bonds were ever authorized and issued upon a vote of the electors of Edwards county; and the plaintiffs waive any claim against the territory in Kiowa county upon these bonds; and it is agreed that the allegations in the alternative writ relating to them shall be stricken out. The stipulation further shows that on October 6, 1885, an election was held for the purpose of voting upon the question whether or not Edwards county should issue $ 20,000 in bonds for the purpose of erecting a court house and jail at the city of Kinsley, in Edwards county, and that a canvass of the vote was had on October 9, 1885, when it was found that a majority of 31 votes had been cast in favor of the proposition. After the canvass, and before the bonds were issued, some effort was made to enjoin the issuance of the bonds, but no injunction was allowed, and the bonds were thereupon issued.

The court house and jail, for the building of which the bonds were issued, were not erected until after the territory described in the writ was detached from Edwards county. It is admitted that a large proportion of the territory detached from the county of Edwards by the erection of Kiowa county belonged to the government of the United States, and formed a part of the public domain, and was not settled upon at the time of the re-creation of the county of Kiowa. It is further admitted that the county clerk of Edwards county certified to the county clerk of Kiowa county that the board of county commissioners of Edwards county had levied one-tenth of a mill for the payment of interest and sinking fund upon bridge bonds, series No. 2, $ 2,000, and one and one-half mills for the payment of interest upon court-house and jail bonds, $ 20,000; that the same was received by the county clerk of Kiowa county prior to the institution of this proceeding, and in time to have made said levy.

Kiowa county was first established and its boundaries defined in 1868. (Gen. Stat., ch. 24, § 37.) By an amendment of this act the boundaries of the county were redefined in 1874. (Laws of 1874, ch. 59, § 2.) In 1875, the territory constituting Kiowa county was divided between and included in Edwards and Comanche counties, and the provisions creating Kiowa county were repealed. (Laws of 1875, ch. 60.) While Edwards county was so enlarged, the bonds mentioned were issued, and subsequently, in 1886, Kiowa county was recreated, and its boundaries restored as they had existed before, including territory detached from Edwards and Comanche counties. (Laws of 1886, ch. 35.)

We will briefly notice the objections raised to the allowance of the peremptory writ. As the re-funding bonds were not authorized and issued by a vote of the people, they are not a charge against the detached territory, and no levy can be made thereon for their payment. This much is conceded by the plaintiffs; and it is agreed that the alternative writ may be amended and the trial proceed as if no mention had been made of these bonds and no claim had been made upon them; and hence they will be laid out of consideration.

It is conceded that the court-house and jail and bridge bonds were authorized and issued by a vote of the electors before the division of Edwards county; and further, that the bonds had passed into the hands of innocent and bona fide holders for value before any question as to the regularity of the election at which they were voted was raised; and they must therefore be regarded as a valid indebtedness existing against Edwards county. (The State v. Comm'rs of Kiowa Co., 39 Kan. 657.)

It is suggested as a defense to the action, that the detached territory sought to be charged never formed a part of Edwards county, and cannot be held liable for any of the debts of that county. This claim is based on the theory that the title of the act of 1875 destroying the existence of Kiowa county and attaching its territory to Edwards and Comanche counties does not specifically mention Kiowa...