The Atchison v. The City of Topeka

• Decision Date: 12 June 1915
• Docket Number: 19,529
• Citation: 149 P. 697,95 Kan. 747
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee, v. THE CITY OF TOPEKA, and MATT WEIGHTMAN, Jr., as County Treasurer, etc., Appellants

149 P. 697

95 Kan. 747

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee, v. THE CITY OF TOPEKA, and MATT WEIGHTMAN, Jr., as County Treasurer, etc., Appellants

No. 19,529

Supreme Court of Kansas

June 12, 1915

Decided. January, 1915.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment Affirmed.

SYLLABUS

CITIES -- Taxation -- Creating a $ 25,000 Reserve Fund -- Construction of Statute. The provision of the act of 1907 providing for commission form of government of cities (Laws 1907, ch. 114, § 112, Gen. Stat. 1909, § 1328) concerning a levy of taxes to create a reserve fund, is construed to mean merely an authorization to set apart out of the general revenue fund a sum not exceeding twenty-five thousand dollars to be kept on hand to meet contingent expenses properly and legally payable and occurring by reason of some unforeseen disaster or extraordinary emergency.

W. C. Ralston, city attorney, for the appellants.

William R. Smith, Owen J. Wood, Alfred A. Scott, and Harlow Hurley, all of Topeka, for the appellee.

West J. Mr. Chief Justice Johnston, Mr. Justice Burch dissent.

OPINION

WEST, J.

This case involves the validity of a certain tax levied by the city of Topeka. The trial court held it void and the city appeals.

In the act providing for the commission form of government it was made the duty of the board of commissioners in July of each year, or as soon thereafter as practicable, to "make a careful estimate of the probable revenues for the next fiscal year (beginning January 1) and apportion the same, to the several departments of the city government, including a reserve fund of not to exceed twenty-five thousand dollars, to be used only in case of extraordinary emergencies, such as act of God or other sudden disaster, which could not have been foreseen before their occurrence. Any unexpended portion of such reserve fund created for any year shall constitute part of such reserve fund for the next ensuing year." (Laws 1907, ch. 114, § 112, Gen. Stat. 1909, § 1328.) The heads of departments are to submit, thirty days in advance, estimates of the amounts needed for the conduct of their departments for the next ensuing fiscal year. "The sums as fixed in said budget shall be appropriated after the beginning of the next ensuing fiscal year for the purposes named. Said board of commissioners shall levy taxes annually and make provision for sufficient revenue to meet all contemplated expenses included in such budget." The board, in addition to the full levy for general revenue, levied a tax of forty-eight one-hundredths of a mill for the year 1911, which was sufficient to raise a reserve fund of twenty-five thousand dollars. When this levy was made the city was by chapter 81 of the Laws of 1911 limited as to levies as follows:

"For general revenue fund, two mills; for general improvement fund, two mills; for water fund, to discharge existing legal obligations for water supplied to the city, one mill; for judgment fund, one-quarter of one mill; for park fund, one mill; for library fund, one-fourth of one mill; for lighting fund, to discharge existing legal obligations for lights supplied to the city, six-tenths of one mill. All other levies authorized by statutes for cities of this class not specifically named in this section are hereby limited to one-fourth of the rates of levy so authorized."

The city contends that this reserve fund is authorized in addition to the general revenue and improvement funds, while the plaintiff insists that it is merely a part of the general revenue fund, and that as the limit therefor was reached, the attempted reserve levy was void.

The terms general revenue and current expenses have been construed in a number of decisions, the general result being to consider them applicable to the usual ordinary, running and incidental expenses of a given municipality. (The State, ex rel., v. Comm'rs of Marion Co., 21 Kan. 419, 434; Comm'rs of Osborne Co. v. Blake, 25 Kan. 356; A. T. & S. F. Rld. Co. v. Wilhelm, Treas., 33 Kan. 206, 6 P. 273; K. C. Ft. S. & G. Rld. Co. v. Scammon, 45 Kan. 481, 25 P. 858; Stevens v. Miller, 3 Kan.App. 192, 43 P. 439; The State, ex rel., v. Cowley County, 86 Kan. 201, 119 P. 327, and cases cited. See, also, Railway Co. v. Kansas City, 92 Kan. 300, 140 P. 1040, and Super v. Modell Township, 92 Kan. 979, 146 P. 993.) Here the fund in question is expressly provided for use "only in case of extraordinary emergencies, such as act of God or other sudden disaster, which could not have been foreseen before their occurrence" (§ 1328), which may be deemed a way of describing a sort of contingent fund ( Odd Fellows v. Troutman, 80 Kan. 441, 454, 103 P. 94; Converse v. Elward, 80 Kan. 558, 563, 103 P. 140; 2 Words and Phrases, p. 1498 et seq.; 9...