The Atchison v. The City of Kansas City
| Decision Date | 09 May 1914 |
| Docket Number | 18,636 |
| Citation | 92 Kan. 300,140 P. 1040 |
| Parties | THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant, v. THE CITY OF KANSAS CITY, KANSAS, et al., Appellees |
| Court | Kansas Supreme Court |
Decided January, 1914.
Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.
Judgment reversed and case directed.
SYLLABUS BY THE COURT.
1. TAXATION--City of Second Class--Statutory Limit of Levy to Pay Judgments. Under the statutes existing in 1908 cities of the second class were authorized to levy a tax for the payment of judgments not rendered for current expenses, although the limit for general revenue purposes had been levied, provided the 40-mill limit for all general city purposes exclusive of school taxes was not exceeded.
2. SAME--Presumption of Regularity of Acts of Taxing Officers. In addition to a levy up to the limit for general revenue purposes for the year 1908 a city of the second class made a levy of one mill to pay judgments. In an action to enjoin the collection of the tax as excessive and illegal it was not shown that the bases of the judgments in question were matters of current expense, and in the absence of such showing the presumption of regularity in the acts of the taxing officers must prevail and such levy will be deemed valid.
3. SAME--Limit Exceeded by Consent of State Tax Commission, or Vote of Electors. The ordinary statutory limit for general revenue purposes might have been lawfully exceeded by permission obtained from the state tax commission, or an increase could have been authorized by a vote of the electors. (Laws 1908, ch. 78, § 1.) The excess was alleged to be unauthorized, excessive and void, but no proof was offered that such consent or authority had been received. Had such consent or authority been received the records of the state tax commission or the city clerk would so show, and the failure to prove a negative--that they did not so show--in the absence of any allegation or assertion by the defendant that either was had, is held too technical a basis for a judgment against the plaintiff, unless a claim of such consent or authority shall be really made by the defense, in which case a new trial is ordered.
William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.
Richard J. Higgins, city attorney, for the appellees.
In 1907 the city of Argentine was authorized to levy a tax of ten mills for general revenue purposes and five mills for purposes of general street improvements, which on the assessed valuation would amount to $ 10,998. Under the provisions of chapter 78 of the Laws of 1908 (see Gen. Stat. 1909, § 9394 et seq.) the city was not authorized for that year to levy more than two per cent in excess of the amount authorized for the previous year, which would be $ 11,207.
However, for 1908 the city in fact levied for these purposes the sum of $ 12,776, $ 1569 in excess of the authorized levy for 1907 plus two per cent. The portion of this excess falling upon the plaintiff was $ 355.09. It was alleged that in addition to this a levy of one mill for the purpose of paying judgments was made in excess of lawful authority, which produced a charge against the plaintiff of $ 584.99. Having paid these charges under protest, the plaintiff brought this action against the city and county to recover back the total sum of $ 939.08, in which action it is sought to recover in fact only one-half of that sum, the whole amount having been paid December 20, bringing the case within the rule laid down in Railway Co. v. City of Humboldt, 87 Kan. 1, 123 P. 727. The court below sustained a demurrer to the plaintiff's evidence and from this ruling the appeal is taken. The act of 1908, already referred to, permitted the authorized amount of the previous year plus two per cent to be exceeded, provided the state tax commission upon application and notice should prescribe a greater sum, or the electors should by direct vote authorize an increase. The petition did not allege anything with respect to such action by the state tax commission or by the electors. The defense insists that under the rule of presumption and regularity so often laid down in this state the plaintiff failed to prove a cause of action. Section 2 of the act of 1908 provides that such act shall in no way limit the amount of any levy necessary to be made for the purpose of paying any judgment, or any levy made by ordinance for special purposes. We are unable to find any statute expressly authorizing a levy by a city of the second class to pay judgments, but section 1380 of the General Statutes of 1909 provides that the city council may appropriate money and provide for the payment of the debts and expenses of the city. Section 1383 limits the total levy for general purposes, exclusive of school taxes, to four per cent of the taxable property of the preceding year. In Phelps v. Lodge, 60 Kan. 122, 55 P. 840, it appeared that the authority and limitations touching the city of the third class there involved were in effect identical with those which apply here. The full ten-mill levy had been made for general revenue, all of which was needed for that purpose, and it was sought to compel an additional levy to pay a judgment. The court, after quoting the provisions of the statute identical in effect with those governing this case, said:
(p. 124.)
It was held that it was not only permissible but a binding duty to provide for the payment of the judgment. (See, also Stevens v. Miller, 3...
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