State ex rel. Ward v. Board of Com'rs of Republic County

• Decision Date: 22 August 1938
• Docket Number: 34148.
• Citation: 82 P.2d 84,148 Kan. 376
• Parties: STATE ex rel. WARD, County Attorney, v. BOARD OF COM'RS OF REPUBLIC COUNTY.
• Court: Kansas Supreme Court

82 P.2d 84

148 Kan. 376

STATE ex rel. WARD, County Attorney, v. BOARD OF COM'RS OF REPUBLIC COUNTY.

No. 34148.

Supreme Court of Kansas

August 22, 1938

Syllabus by the Court.

Petitions signed by more than one-fourth of the bona fide resident taxpayers of county, requesting county to proceed, without election and vote of electors of county, to erect courthouse when duly presented, considered, and acted on, as authorized by statute, conferred on the board of county commissioners all power and authority to proceed to construct the courthouse, use funds on hand available for that purpose, and such federal aid as it might receive, and for the balance of the cost to levy a special tax at a rate of not more than two mills on the dollar for a period of not more than five years and to issue its anticipation warrants to be paid with the proceeds of the tax. Gen.St.1935, 19-1503.

The cash-basis law, the budget law, and the tax limitation law were intended to avoid waste and extravagance and yet permit municipalities and other taxing subdivisions of the state to function so as to supply the governmental wants and needs of the people. Gen.St.1935, 10-1101 et seq., 79-2925 et seq 79-1945 et seq.

The provisions of statutes authorizing the county commissioners of a county within the designated class, having determined that a permanent building for the use of the county is necessary and its cost, on petitions of one-fourth of the bona fide resident taxpayers, to proceed to construct such building, issue its anticipation warrants, and levy a special tax to procure funds to pay such warrants, were not repealed or rendered inoperative by the provisions of the cash-basis law, the budget law, or the tax limitation law. Gen.St.1935 10-1101 et seq., 19-1503, 19-1505, 79-2925 et seq., 79-1945 et seq.

The exception to the tax limitation law is not confined to bonds authorized by the vote of the electors, but applies to any levy which is authorized by statute for the purpose of creating sinking and interest funds necessary to liquidate at maturity the principal and interest of any indebtedness authorized by law. Gen.St.1935, 79-1963.

Where county commissioners acting under statutes authorizing county commissioners of a county within designated class, having determined that a permanent building for use of county is necessary and its cost, on petitions of one-fourth of the bona fide resident taxpayers, to proceed to construct such building, issue its anticipation warrants, and levy a special tax to procure funds to pay such warrants, it was immaterial whether an "emergency" existed as that term is used or defined in the cash-basis law or the budget law. Gen.St.1935, 10-1101 et seq., 19-1503, 19-1505, 79-2925 et seq.

The provisions of G.S.1935, 19-1503, 19-1505, authorizing the county commissioners of a county within the designated class, having determined that a permanent building for the use of the county is necessary and its cost, upon petitions of one fourth of the bona fide resident taxpayers, to proceed to construct such building, issue its anticipation warrants, and to levy a special tax to procure funds to pay such warrants, were not repealed nor rendered inoperative by the provisions of the cash-basis law, the budget law or the tax limitation law of 1933, Gen.St.1935, 10-1101 et seq.; 79-2925 et seq.; 79-1945 et seq.

Appeal from District Court, Republic County; Tom Kennett, Judge.

Action for a declaratory judgment seeking construction of a statute by the State of Kansas, on the relation of Guy E. Ward, County Attorney of Republic County, Kansas, against the Board of County Commissioners of the County of Republic, State of Kansas. From a judgment granting the injunction, the defendant appeals.

Judgment reversed with directions to deny injunction and enter decree in accordance with opinion.

W. D. Vance and Fred Emery, both of Belleville, for appellant.

Guy E. Ward, Co. Atty., of Belleville, for appellee.

HARVEY Justice.

This was an action for a declaratory judgment seeking a construction of G.S.1935, 19-1503, as effected by the cash-basis law, G.S.1935, 10-1101 et seq., the budget law G.S. 1935, 79-2925 et seq., and the tax limitation law, G.S.1935, 79-1945 et seq., as applied to the facts alleged in the petition and conceded to be correct. As these statutes are interpreted by plaintiff, it was entitled to a decree enjoining defendant from proceeding as it proposes to do in financing the building of a courthouse and jail to replace a courthouse destroyed by fire; as interpreted by defendant such a decree was not authorized. The trial court agreed with plaintiff's construction of the statutes. Defendant has appealed.

The pertinent facts are not controverted and may be summarized as follows: Republic County is and for many years has been one of the organized counties of the state. It has a population of between 14,000 and 15,000 and property of the assessed value of about $27,000,000. For many years it has had a courthouse and jail situated on a site owned by the county at Belleville, the county seat. On April 1, 1938, the courthouse was destroyed by fire. The jail is old, unsanitary and unsuitable for present needs. Since the destruction of the courthouse by fire the county officers have occupied temporarily various office rooms rented by the county. These are inconvenient for the general public and unsuitable for the safe keeping of county records. The county collected more than $25,000, in insurance, on the burned building, which it has segregated and placed in a special fund to be used in constructing a new courthouse and jail. A real necessity exists for the constructing of the new courthouse as soon as that can be done legally. The county has no outstanding indebtedness represented by bonds or time warrants and has ample funds on hand to pay current expenses. Prior to the making of certain orders of the Board of County Commissioners, soon to be mentioned, valid petitions signed by more than one-fourth of the bona fide resident taxpayers of the county, (about 35% of them) were presented to the Board of Commissioners requesting it to proceed, without an election and vote of the electors of the county, to erect a courthouse for the county and for the cost thereof to the county to be raised and provided by a special tax levied as provided by law and not by the issuance of bonds. These petitions were approved by defendant's board of commissioners. Defendant, heretofore by due action of record has determined that a necessity exists for the construction of a new courthouse on the site owned by it at the county seat, with vaults and rooms for the various county officers and a suitable jail and in like manner has determined by its action, properly of record, that the actual cost of such a structure will approximate the sum of $243,470. The defendant applied to and received, from the PWA a grant of funds in the sum of $109,561.50 as aid to be used in paying the cost of such building, leaving a balance to be paid by defendant of $133,908.50. Defendant is proceeding to and intends to use its surplus funds derived from insurance on the building destroyed, now segregated and set apart in a special building fund, toward the payment of the cost of such new building and to raise and provide the balance of such costs, approximately $100,000, more or less, by the issuance and sale of interest bearing anticipation warrants to be issued and sold as the work on the building progresses and as funds from that source are required for the cost thereof, such warrants to bear interest at the rate of three percent per annum, or less, and all to be payable and retired within five years. Defendant further intends to and is in the process of making a special tax levy upon all the taxable property within the county for the purpose of providing a sinking fund to pay and retire such warrants, the levy therefor not to exceed one mill on the dollar annually for the years 1938 through 1942, which levy would be sufficient to pay all such warrants with interest. Provision has not been made and cannot be made in the 1938 budget of the county to pay such warrants unless the defendant is permitted to levy a special tax therefor, in excess of the aggregate tax levy permitted by law for general county purposes.

Plaintiff contends that our cash-basis law, specifically G.S.1935, 10-1112, 10-1113, 10-1114, 10-1115, 10-1119; our budget law, specifically G.S.1935, 79-2935, and our tax-limitation law, G.S.1935, 79-1947, make impossible the action proposed and intended by defendant, respecting the issuance and sale of interest-bearing anticipation warrants, and the levy of the special tax to procure bonds to pay such warrants with interest.

Defendant contends it is specifically authorized by G.S.1935, 19-1503, 19-1504, 19-1505, to proceed as it proposes and intends to do, and further contends it is within the specific exceptions of the cash-basis law, G.S.1935, 10-1116; of G.S.1935, 79-1963, pertaining to tax limitations, and the proviso of G.S.1935, 79-2935, being a part of the budget law.

In deciding for plaintiff and against defendant, the trial court declared their rights to be as follows:

"That no such emergency exists under the admitted facts in this case, as creates an exception to the provisions of what is commonly known as the cash basis law and the budget law of the State of Kansas, or any other pertinent provision of law relating to the subject matter of this action.

"That the defendant Board is not authorized, under the facts admitted herein, proceeding under Section 19-1503 of the General Statutes of Kansas for 1935, to levy a special tax or to issue, sell or dispose of time or anticipation warrants of said County of Republic for the purpose of

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