Walker v. Douglass

• Decision Date: 01 January 1896
• Docket Number: 70
• Citation: 2 Kan.App. 706,43 P. 1143
• Parties: A. D. WALKER et al. v. JOHN C. DOUGLASS et al
• Court: Kansas Court of Appeals

43 P. 1143

A. D. WALKER et al. v. JOHN C. DOUGLASS et al

2 Kan.App. 706

No. 70

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed February 14, 1896.

MEMORANDUM.--Error from Jackson district court; ROBERT CROZIER, judge. Action of ejectment by A. D. Walker and James H. Lowell against John C. and Hattie R. Douglass. Judgment for defendants. Plaintiffs bring the case to this court. Reversed. The opinion herein was filed February 14, 1896.

The statement of the case, as made by GILKESON, P. J., is as follows:

The plaintiffs in error (plaintiffs below) brought this action claiming title to the real estate in controversy under and by virtue of two tax deeds. The first is based upon the sale of said land for delinquent taxes of the year 1885, which is in statutory form, and recorded on September 10, 1889; and the second upon the sale of the same land for delinquent taxes for the year 1886, which is in statutory form, and includes the taxes of 1887 and 1888, and recorded on March 4, 1891.

Plaintiffs in their petition, in addition to their claim of ownership aver that defendants have been wrongfully receiving all the rents, issues and profits of the land since September 9 1889, which the plaintiffs, as the absolute owners, were entitled to, and that they were of the value of $ 300. Defendants answered by general denial. Trial had before the court upon the issues thus joined. Special findings of fact and conclusions of law returned by the court. Judgment rendered thereon, declaring the deeds void, and assessing costs against the plaintiffs.

Judgment reversed and cause remanded.

Hayden & Hayden, and James H. Lowell, for plaintiffs in error.

John C. Douglass, for defendants in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

This cause comes here upon error in the findings of fact, conclusions of law, and judgment. The court found that each of the tax deeds was invalid: (1) That the tax deed issued upon the sale for the taxes of 1885 is invalid because there was included in such taxes a township road tax levied in 1884, under the eighth subdivision of section 22, chapter 110, Compiled Laws of 1879, and carried over to and added to the taxes of 1885, such road tax being illegal because the said subdivision of section 22 was unconstitutional. (2) That the tax deed issued upon the sale for the taxes of 1885 is invalid because a township road tax levied in 1885 was not collected as other taxes levied for that year, but was carried over to 1886, and constituted a part of the taxes for which the land was sold in the latter year. No other reasons are assigned.

As to the first tax deed, we think the decision of the court is correct. It is conceded by defendants in error that section 22, chapter 110, Compiled Laws of 1879, was declared unconstitutional by the supreme court of this state in M. & M. Rly. Co. v. Champlin, 37 Kan. 682; but they contend that the assumption of the court in its findings of fact that these taxes were levied upon that law was erroneous, and is not warranted by the findings of fact. The testimony is not preserved in the record, and the findings of the court upon this proposition are conclusive upon us. We shall treat it, then, as a fact that these taxes were so levied.

An unconstitutional act is not a law. It confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. As to the second tax deed the court held it was invalid for the reason that a township road tax levied in 1885 was not collected as other taxes levied for that year, but was carried over to 1886, and constituted a part of the taxes for which the land was sold in the latter year. At the time this tax was levied there was in force the laws of 1885 and 1874. Conceding this to be true, we...