The Fidelity National Bank and Trust Company of Kansas City v. Morris
| Decision Date | 12 January 1929 |
| Docket Number | 28,382 |
| Citation | 127 Kan. 283,273 P. 425 |
| Parties | THE FIDELITY NATIONAL BANK AND TRUST COMPANY OF KANSAS CITY, Plaintiff, v. JOSEPH J. MORRIS et al., as the Board of Supervisors of Drainage District No. 1 in Lyon County, Defendants |
| Court | Kansas Supreme Court |
Decided January, 1929.
Original proceeding in mandamus.
Motion denied.
SYLLABUS BY THE COURT.
1. DRAINS--Authority of District to Borrow Money for Incorporation--Levy of Tax After Abandonment of District. Section 24-621 of the Revised Statutes authorizes drainage districts to borrow $ 5,000 to pay for the organization and incorporation of drainage districts and to pay other legitimate charges and expenses incurred, and impliedly authorizes the levy of a tax to repay the money borrowed although the drainage project is abandoned on the filing of the report of the engineer employed to make the survey.
2. SAME--Nature of Tax Levy. Such a tax as is mentioned in the first paragraph of this syllabus may be a percentage tax levied on all the land in the drainage district according to its value.
3. SAME--Necessity of Reducing Claim to Judgment. Under the circumstances mentioned in the first and second paragraphs of this syllabus, when the organization of the district, the employment of an engineer, his report, the borrowing of the money, and the failure to pay and to levy a tax to provide funds with which to pay the amount borrowed are admitted, it is not necessary that the claim be reduced to judgment before a peremptory writ of mandamus will issue.
Justin D. Bowersock, Robert B. Fizzell and John F. Rhodes, all of Kansas City, Mo., for the plaintiff.
Orin L. Isaacs, of Emporia, Bennett R. Wheeler, S. M. Brewster and J. L. Hunt, all of Topeka, for the defendants.
This is an original proceeding in mandamus prosecuted by the plaintiff, the holder of $ 5,000 in seven municipal temporary notes issued by the defendant under the last provision of section 24-621 of the Revised Statutes, to compel the defendants to levy a tax to pay the cost and expenses of the incorporation of defendant district and to pay for work done.
The defendants have filed a combined demurrer, motion to quash, and answer, all of which are submitted as a motion to quash the alternative writ, on the ground that it does not state facts sufficient to constitute a cause of action against the defendants. The answer sets out matters that cannot be considered on a motion to quash the writ.
Briefly summarized, the alternative writ alleges the organization of the defendant district, the employment of an engineer to make a survey of the district, his report, the rejection of this report by the defendant board, and the determination of the board not to proceed with the drainage project. It also alleges that for the purpose of securing the money with which to make the survey and do the other necessary preliminary work, the defendants borrowed $ 5,000 from the plaintiff and issued their notes therefor; that the defendants have abandoned the project; that when the action was begun all the notes except one were due; that none of the notes has been paid, and that no tax has been levied to provide funds with which to pay any of them. The writ asks that a peremptory writ be issued commanding the defendants to provide for the drainage and improvement of the district, or if that is not done, to levy a tax on the land and property within the district to raise funds with which to pay the notes.
1. The plaintiff argues that the defendants were authorized to borrow the money and execute the notes, and that necessarily they are under obligation to levy a tax to raise money with which to pay the notes. The defendants argue that the statute, section 24-618 of the Revised Statutes, provides that taxes shall be apportioned to, and levied on each tract of land in said district, in proportion to the benefits assessed and not in excess thereof. No benefits have been assessed. The defendants contend that no benefits have accrued to any of the land or property within the district; and that, therefore, taxes cannot be assessed under the statute.
Section 24-618 of the Revised Statutes, in part, reads:
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White v. Kaibab Road Imp. Dist., 1
...arises. An indebtedness arising from an abandonment is properly levied on the land of the district. Fidelity National Bank & Trust Co. v. Morris, 127 Kan. 283, 273 P. 425 (1929). Another statement of rights of the property owner is that, if abandonment occurs there is a failure of considera......
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Arvidson v. Board of County Com'rs, s. 39947
...the preliminary studies showed that the benefits from the improvement would not exceed the costs. In Fidelity National Bank & Trust Co. v. Morris, 127 Kan. 283, 273 P. 425 (1929) the court upheld a special assessment to defray the costs of engineering studies upon the basis of which the pro......
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The Fidelity National Bank and Trust Company of Kansas City v. Morris
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