Sumner v. The City of Wellington

• Decision Date: 11 April 1903
• Docket Number: 13,033
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SUMNER et al. v. THE CITY OF WELLINGTON, KAN
• Court: Kansas Supreme Court

72 P. 216

66 Kan. 590

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SUMNER et al. v. THE CITY OF WELLINGTON, KAN

No. 13,033

Supreme Court of Kansas

April 11, 1903

Decided January, 1903.

Error from Sumner district court; W. T. MCBRIDE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

TAXATION -- Water-works Owned by City Exempt. A water-works plant owned and operated by a city is exempt from taxation and the fact that water is furnished by the city to citizens and other consumers at prescribed rentals does not affect the exemption.

Emera E. Wilson, county attorney, and Ready & Ready, for plaintiffs in error.

J. S. Dey, and C. E. Elliott, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

The officers of Sumner county undertook to levy and impose taxes on a water-works plant owned by the city of Wellington. Originally the city granted to C. W. Hill, and his assigns, upon certain conditions, the right to construct and maintain water-works for the purpose of providing the city and its inhabitants with water. Under the franchise so granted the plant was constructed, and it was operated as a private enterprise for several years, when it was purchased by the city. Since that time the plant has been operated by the city, and, in addition to supplying water to the public buildings and places of the city, and also for fire protection, it furnishes to the people, at fixed charges, water for domestic purposes, and to private and public corporations for their needs, at prescribed rentals. The plant is located partly within, and partly without, the corporate boundaries of the city, and consists of both real and personal property of the value of about $ 50,000. The questions in the case are raised upon the pleadings, and the turning-point is whether a water-works plant owned and operated by a city is, under the constitution and laws, exempt from taxation.

Under the statute, a city of the second class, in which Wellington belongs, has full power "to purchase, procure, provide . . water-works . . . for the purpose of supplying such cities and the inhabitants thereof with water . . . for domestic use and any and all other purposes." (Gen. Stat. 1901, § 1017.) There was undoubted legislative authority for the city to municipalize the plant. The supplying of water to the inhabitants, while not strictly a governmental function, so much affects the health and welfare of the people as to be closely akin to it. The plant was purchased with public funds; it is operated by the public officers and agents; and rentals derived from its operation go into the public treasury and are expended for the public benefit. The ownership and the purpose being public, there are good reasons why the property should be exempted from taxation. It is inconsistent with our theory of government to place a tax or burden upon one of the instrumentalities of government, and thus to impede its operation, and in some jurisdictions immunity from such taxation has been adjudged where there were no express constitutional or statutory exemptions. (12 A. & E. Encycl. of L., 2d ed., 368.) In our state the legislature has unequivocally declared that all property belonging exclusively to the United States, the state, and to any county, city, township, or school district, shall be exempted from taxation. (Gen. Stat. 1901, § 7504.) This statute only reenforces and confirms the general principle that the...