The Board of County Commissioners of The County of Sedgwick v. Wichita

Decision Date06 April 1901
Docket Number11,857
PartiesTHE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK v. THE CITY OF WICHITA et al
CourtKansas Supreme Court

Decided January, 1901.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment affirmed and modified.

Amidon & Conly, for plaintiff in error.

A. E Helm, for defendants in error.

CUNNINGHAM J. JOHNSTON, J., dissenting.

OPINION

CUNNINGHAM, J.:

A large amount of taxes levied upon property within the city of Wichita, a city of the first class, for city purposes, became delinquent. This, together with the penalties and interest thereon, was collected by the county treasurer of Sedgwick county. An action was brought against the board of county commissioners of Sedgwick county by the city to compel the payment to it of its proportion of such penalties and interest. The board of education of the city of Wichita intervened in the action and claimed that it had a right to receive the penalties and interest which had accrued on the taxes levied for school purposes. The court below found for the plaintiff and for the board of education. The board of county commissioners brings the case to this court.

The question involved is this: As between the county and a city of the first class within the county, and as between the county and the board of education of such city, which is entitled to the penalties and interest accruing upon delinquent taxes levied on property within such city for city and school purposes? This question, of course, must be solved by reference to the statutes.

Section 143 of chapter 158, General Statutes of 1897 (Gen. Stat. 1889, P 6940; Gen. Stat. 1899, § 7281), being the section which provides for the addition of penalties to taxes not paid at the time the same become due, closes with these words: "Provided, all penalties shall be credited to the county fund and all rebates charged to the same fund." The county commissioners claim the penalties and interest in question under and by virtue of this provision. This section is a part of the general law on the subject of assessment and taxation, and was enacted in 1876, and must be held to determine the question in favor of the county as to penalties at least, unless it has been changed by subsequent legislation. It will be observed, however, that this provision applies only to penalties, and says nothing about interest.

By section 1 of chapter 260, Laws of 1895 (Gen. Stat. 1897, ch. 32, §§ 75, 79; Gen. Stat. 1899, § 842), the legislature amended paragraph 666 of the General Statutes of 1889, which paragraph is a part of the act relative to cities of the first class. This amendment, so far as it relates to the question at bar, is as follows:

"The county treasurer shall, on January 15, April 15, July 15 and October 15 of each year (or oftener, if required by the city council), pay over to the city treasurer all moneys and evidence of indebtedness collected for and payable to any city of the first class, its proportion of penalties and interest, and make a full, itemized statement thereof to the mayor and council."

It is under the provision of the italicized portion of this section that the city claims it is entitled to recover. We agree with this claim. This entire matter is one clearly for the legislature to determine, and the latest expression of the legislative will must control. While repeals by implication are not favored, and while the latest act contains no express repeal of the provision quoted from the general taxation law, it is clear that these two sections of our statute cannot stand together. There is no opportunity for any construction which will give effect to both. Either the county is entitled to these penalties, under section 143, or the city is entitled to them, under the last-quoted section, and we think it is clear that the legislature intended the latter. (Elliott v. Lochnane and others, 1 Kan. 126; Bonifant v. Doniphan and Walker, 3 id. 33; Bartlett, Treas., v. A. T. & S. F. Rld. Co., 32 id. 134, 4 P. 178.) This construction is also consonant with the natural rights in the case. These penalties were laid upon the taxpayer to induce prompt payment of taxes when due, and as compensation to the municipality for its delay in receiving the same when due, and there is no reason apparent to us, in the absence of positive statute requiring it, why the penalties which accrue upon taxes levied for city purposes should not go to the city.

As noted, the above provision on which the county relies purports to give only the penalty, and does not pretend to carry interest accruing upon tax-sale certificates. As a general proposition, interest goes to augment the fund and becomes a part of it, and is entitled to be received by the owner. We think the court below was clearly right in adjudging that both penalties and interest on the delinquent taxes assessed for city purposes be paid over to the city treasurer.

The question, however, as to the rights of the board of education is a different one. There is no provision to be found in the...

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7 cases
  • Jones v. Williams, 6051.
    • United States
    • Texas Supreme Court
    • December 23, 1931
    ...rule. Board of Commissioners v. Close Bros., 82 Okl. 174, 198 P. 845; State v. Mayo, 15 N. D. 327, 108 N. W. 36; Sedgwick County v. City of Wichita, 62 Kan. 704, 64 P. 621; City of Crookston v. Board of County Com'rs, 79 Minn. 283, N. W. 586, 79 Am. St. Rep. 453; City of New Whatcom v. Roed......
  • State ex rel. McKittrick v. Bair
    • United States
    • Missouri Supreme Court
    • June 23, 1933
    ... ... Bair, Collector of Revenue of Jasper County No. 33115 Supreme Court of Missouri June 23, ... Clark, 252 Mo ... 20; Commissioners v. Hamersley, 204 P. 445. (a) ... Delinquent ... 1821, p. 3573; ... Sedgwick Co. v. City of Wichita, 62 Kan. 704, 64 P ... Sugar Shed Co., 35 La. Ann. 550; ... Board v. Smith, 95 Ill. 335; State v ... Graham, ... ...
  • State ex rel. Mitchell v. Mayo
    • United States
    • North Dakota Supreme Court
    • June 1, 1906
    ... ... M. S. MAYO AS TREASURER OF CASS COUNTY, NORTH DAKOTA Supreme Court of North DakotaJune ... Board of Sedgwick v. Wichita, 62 Kan. 704, 64 P ... commissioners may direct; except the penalty and interest ... ...
  • Abbe v. Nash
    • United States
    • Illinois Supreme Court
    • October 15, 1936
    ...Ind. 473, 22 N.E. 10;State v. Huffaker, 11 Nev. 300;School District v. Pondera County, 89 Mont. 342, 297 P. 498;Com'rs of Sedgwick County v. Wichita, 62 Kan. 704, 64 P. 621. On the constitutional question urged by appellants it must be noted that we have heretofore held that the sum which i......
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