The Fidelity National Bank and Trust Company of Kansas City v. Morris
| Decision Date | 05 April 1930 |
| Docket Number | 29,140,28,382 |
| Court | Kansas Supreme Court |
| Parties | THE FIDELITY NATIONAL BANK AND TRUST COMPANY OF KANSAS CITY, MISSOURI, Plaintiff, v. JOSEPH J. MORRIS et al., constituting the Board of Supervisors of Drainage District No. 1 of Lyon County, and W. J. HANNA, Clerk and ex officio Assessor, etc., Defendants. JUSTIN D. BOWERSOCK et al., doing business under the Firm Name of BOWERSOCK, FIZZELL & RHODES, Plaintiffs, v. JOSEPH J. MORRIS et al., constituting the Board of Supervisors of Drainage District No. 1 of Lyon County, Defendants |
Decided January, 1930.
Original proceedings in mandamus.
Writ allowed.
SYLLABUS BY THE COURT.
1. DRAINS--Liability of District for Borrowed Money After Abandonment--Levy. Where a drainage district has been organized under article 6 of chapter 24 of the Revised Statutes of 1923, and its board of supervisors has borrowed money, as authorized under section 621 of that article, and later after the project has been abandoned the board has made a levy to pay the same and certified it to the county clerk with a request to extend the same on the land contained in the drainage district, a map and description of which is on file in his office, it becomes the duty of the county clerk under R. S. 79-408 and other statutes pertaining thereto to make out a real-estate assessment of the district, whether requested at the time of the regular quadrennial real-estate assessment or at any intervening period, and extend the levy as requested on the land of the district so assessed.
2. SAME--Authority to Employ Attorneys and Incur Expenses. Article 6 of chapter 24 of the Revised Statutes of 1923 authorizes the board of supervisors of a drainage district organized under the provisions of that article to employ one or more attorneys and incur the expense of their compensation in fees and expenses incident to the organization and preliminary work of such district, and the limitation imposed by section 621 of the article on the power to borrow an amount not to exceed $ 5,000 is not a limitation upon the board in the way of incurring expense in excess of that amount.
3. SAME--Proceedings Preliminary to Enforcing Levy. When the following facts are admitted: the organization of a drainage district, the employment of attorneys by the board of supervisors, the approval of their claims for fees and expenses by the board, the failure to pay the claims and the failure to levy a tax to raise funds to pay the same, it is not necessary for the claims to be reduced to judgment before a peremptory writ of mandamus will issue to require such levy of tax to be made and extended.
Justin D. Bowersock, Robert B. Fizzell and John Franklin Rhodes, all of Kansas City, Mo., for the plaintiffs.
Orin L. Isaacs, O. R. Stites, both of Emporia, Bennett R. Wheeler, S. M. Brewster and John L. Hunt, all of Topeka, for the defendants.
Two original proceedings in mandamus have been consolidated to be heard and tried together.
The first case was brought by the Fidelity National Bank and Trust Company against the board of supervisors of drainage district No. 1 in Lyon county, and recently the county clerk of Lyon county was made a party defendant. This case involves the question of the right of the plaintiff to a levy of a tax on the land in the drainage district to pay the plaintiff for money borrowed to meet the necessary cost and expense of the organization and incorporation of the district, and to require the defendant board and the county clerk to levy a tax on the land in the drainage district to repay the money borrowed for that purpose by the defendant board of supervisors.
The other case was filed more recently and by three persons constituting a firm engaged in the practice of law, to procure an order of this court requiring the defendant board of supervisors of the drainage district to take the necessary preliminary steps and to levy on the land in the district a tax sufficient to provide for the payment of two claims for attorney fees and expenses for services already rendered by them for the defendant board and approved by the board.
In each case the defendant board filed a motion to quash the alternative writ and also an answer, and the county clerk filed a motion to quash the alternative writ in the first case and an answer. The answers, however, raise only questions of law and will be considered in connection with the motions to quash.
The first case was here before, and the opinion was filed January 12, 1929, and reported in 127 Kan. 283, 273 P. 425, the county clerk not then being a party defendant. It is here now after the rendition of the opinion to compel the board of supervisors to take the necessary preliminary steps for the levy of a tax, and the county clerk to levy such tax on the land of the drainage district to pay the money borrowed.
Counsel for all parties have in a measure reargued in both these cases many of the questions involved and decided in this earlier case. We have fully considered such reargument, but are not persuaded that the opinion heretofore rendered should be reversed, changed or modified; neither do we think it will serve any good purpose in this opinion to again discuss or restate our reasons for adhering to the conclusions therein reached.
Because we expect in the first case to take up the questions involved and consider them only from the point where the opinion in the first case left them, and in the second case to apply the facts therein to the law, including that announced in the decision in the first case, it will be helpful to set out and state herein the decision reached in the former hearing, as expressed in the three paragraphs of the syllabus.
After the decision in the first case was rendered in January, 1929, nothing effective seems to have been done by the defendant board until August 24, 1929, when a resolution was passed by the board making a tax levy of three mills upon the real property within the drainage district, which resolution was on that date duly certified and delivered to the county clerk of Lyon county. Because nothing was done by the county clerk with reference to making the levy, the plaintiffs on October 17, 1929, made an application to this court in the same case to make the county clerk a party defendant and for an alternative writ against the defendant board and the county clerk, ordering and directing them to make the levy. It is this alternative writ that is now before us on motions to quash the same.
The first two points discussed in the briefs, viz., has the board power to levy a tax, and what property shall be taxed, are answered by the former decision, the first in the affirmative and the second by the statement in the opinion that it "should be a percentage tax levied on all the land in the district according to its value in money." It might be said, incidentally, that the levy approved in the former opinion was not under R. S. 24-618, because that only prescribed the plan of levy for a district that is a going concern. This is a levy for the organization expense of an abandoned enterprise. Neither is it a levy under R. S. 79-402. This drainage district was organized under R. S. 24-601 to 24-604, inclusive, by the action of the landowners in the district, who later have abandoned the project. These landowners are the ones who have set the wheels in motion and incurred this expense, and because they chose to go no farther with the project it cannot be collected on the basis of benefits received. Some may have opposed the scheme from the beginning and protested, but R. S. 24-602 and 24-603 define their rights and privileges which could thereunder have been heard, adjusted and terminated. It affects the owners of more than 18,000 acres in Lyon county, who more than five years ago organized this district, doubtlessly with the hope and prospect of benefiting their property, but later, perhaps in the exercise of good judgment, thought best to abandon it entirely. That was perfectly right and proper, but the money spent, and perhaps well spent, in aiding them to reach this conclusion is an obligation of those who borrowed it and spent it, namely, the landowners who alone under the law could originate such a district.
Very similar propositions were presented and considered in Bank v. Sheldon, 96 Kan. 492, 152 P. 765; Lithographing Co. v. Crist, 98 Kan. 723, 160 P. 198, and Weber Engine Co. v. Alter, 120 Kan. 557, 245 P. 143, although the enterprises that were abandoned were different and had been promulgated under different statutes.
The third point presented in the briefs on the motions to quash...
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...compensation may be recovered from the board in a mandamus action. G.S.1935, 60-1710; Fidelity Nat. Bank and Trust Co. of Kansas City, Mo., v. Morris, 130 Kan. 290, 291, 296, 286 P. 206. The only remaining question in this case is whether the indebtedness created by the drainage board is to......
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