Washington Tp. of Nemaha County v. Hart
| Decision Date | 28 February 1950 |
| Docket Number | No. 37807,37807 |
| Citation | 215 P.2d 180,168 Kan. 650 |
| Parties | WASHINGTON TP. OF NEMAHA COUNTY v. HART et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. The budget law (G.S.1947 Supp., 79-2935) has no application to a tax levy authorized by a vote of the electors pursuant to G.S.1947 Supp. 80-1413.
2. A township's petition in an action to mandamus the county treasurer to pay to the township certain tax moneys paid to the county treasurer under protest examined and found to state a cause of action, and held: It was error to (1) sustain a demurrer to the petition, and to (2) sustain a motion to quash the alternative writ of mandamus.
3. The State Commission of Revenue and Taxation has jurisdiction to exercise its administrative judgment or discretion in the interpretation of tax statutes, but there is recourse in the courts to determine whether the Commission's interpretation is a proper one.
Harry A. Lanning, of Seneca, argued the cause, and William M. Drumm, also of Seneca, was with him on the briefs, for appellant.
Mark L. Bennett, of Topeka, argued the cause for appellee Chicago, R. I. & P. R. Co.
Mason Mahin, of Smith Center, was on the briefs, for appellee State Commission of Revenue and Taxation.
John D. Cunningham, of Seneca, and Clayton M. Davis, of Topeka, were with Mr. Bennett on the briefs for appellee Chicago, R. I. & P. R. Co.
This is an appeal by Washington Township of Nemaha County from an order sustaining a demurrer to the petition and from an order sustaining a motion to quash the alternative writ of mandamus in a mandamus proceeding instituted by the township to require the county treasurer to distribute and pay to the township certain taxes which the Chicago, Rock Island and Pacific Railroad Company had paid under protest. In addition to the county treasurer of Nemaha County, the Chicago, Rock Island and Pacific Railroad Company and the three members of the State Commission of Revenue and Taxation were made defendants.
The petition alleges that pursuant to and as authorized by G.S.1947 Supp. 80-1413, the township submitted to the qualified electors of the township residing outside the corporate limits of any city at a general primary election the question of levying a special tax of three mills for two years to raise funds for the purpose of improving the township roads; that the election was held August 2, 1948, and, a majority voting in favor thereof, the township levied a tax of 2.725 mills on all the taxable tangible property in the township outside the corporate limits of any city; that the levy was made and extended upon the tax rolls of Nemaha County by the county treasurer. A tax of $441.61 was levied against property of the defendant Chicago, Rock Island and Pacific Railroad Company; that the railroad company paid this amount less two percent discount ($440.16) under protest; that said protested tax was placed in the 'Protested Tax Account' by the county treasurer and has not been disbursed. The defendant railroad company protested the payment of said tax upon the sole and only ground that the tax was excessive, illegal and unlawful in its entirety as being contrary to the budget law of the state of Kansas and particularly G.S.1947 Supp. 79-2930, and a copy of the protest is made a part of the petition as Exhibit A. The railroad company made application to the State Commission of Revenue and Taxation and pursuant thereto said Commission made an order on March 14, 1949, finding that the 2.725 mill levy was illegal and ordered that the county treasurer refund to the railroad company the protested tax in the amount of $440.16; and a copy of the Commission's order is attached to the petition as Exhibit B. The petition further alleged:
'The 2.725 mill levy, voted and extended as above set forth, was not included nor shown in the 1948 budget prepared, adopted and filed prior to the date of said election, by the Township Board of plaintiff township; the laws of the State of Kansas, including the budget law, do not require that levies and expenditures authorized by a vote of the municipality be shown in the budget; and levy authorized by a vote of the municipality may be lawfully and legally made and extended without being first included and shown in the budget of such municipality.
Exhibit A attached to the petition is the protest filed by the railroad company which included a copy of the Washington Township proposed budget made pursuant to G.S.1947 Supp. 79-2929, and published June 17, 1948, as follows:
'Special Road Fund
Preceding Current Proposed
Year Year Year
1947 1948 1949
Total expenditures .............................. 4279.59 4250.00 172.77
Receipts
Unencumbered Township Bal., Jan. 1 ......................... .98 154.77
Received from county treasurer (general property
tax) .......................................... 4280.57 3611.01 0
Receipts from residue sales tax ............................ 774.78 0
Receipts from back tax collections ......................... 18.00 18.00
--------- -------- --------
Total Receipts, incl. Jan. 1 Bal................. 4280.57 4404.77 172.77
Less: Expenditures .......................... 4279.59 4250.00 172.77
--------- -------- --------
Balance Forward ............................. .98 154.77'
This protest further alleged in part:
'It will be noted from the above that the total to be expended in the year 1949 from the Special Road Fund was $172.77 and this expenditure was to be financed only by a balance on January 1, 1949, and back tax collections during the year 1949 and an ad valorem tax requirement was unnecessary.
'The Special Road Fund levy of 2.725 mills extended by the county clerk in Washington Township is excessive, illegal and unlawful in its entirety and is contrary to Section 79-2930, G.S.1947 Supp.'
Exhibit B attached to the petition is the order of the State Commission of Revenue and Taxation dated March 14, 1949, finding that the adopted budget would exceed the amount of funds in the Special Road Fund as originally published in the proposed budget and that the governing body did certify a tax levy which would produce revenue in excess of that which is required to finance the appropriation of the fund budget; and that the Special Road Fund levy made in Washington Township, Nemaha County, Kansas, was and is illegal to the extent of 2.725 mills, which applied to protestant's valuation of $163,159 in said taxing district, produced an illegal and excessive assessment against the protestant in the sum of $440.16; and ordering that the county treasurer refund to the railroad company the $440.16 tax paid under protest.
The township's verified Motion for Alternative Writ of Mandamus contained many of the allegations of the petition and further alleged: 'The 2.725 mill levy, voted and extended as above set forth, was not included nor shown in the 1948 budget prepared, adopted and filed by the Township Board of plaintiff township; the laws of the State of Kansas, including the budget law, do not require that levies and expenditures authorized by a vote of the municipality be shown in the budget; any levy authorized by a vote of the municipality may be lawfully and legally made and extended without being first included and shown in the budget of such municipality.'
The district court allowed an alternative writ of mandamus commanding the county treasurer either to distribute and pay to the plaintiff township the taxes paid by the defendant railroad company under protest, or to show cause why he had not done so. The defendants demurred to the petition and moved to quash the alternative writ. From an order sustaining both the demurrer and motion to qaush, and rendering judgment in favor of defendants for costs, the plaintiff township appeals.
Appellant contends that G.S.1947 Supp. 80-1413, enacted 1945 and amended 1947, authorized calling an election, and then after a favorable vote, authorized the...
To continue reading
Request your trial
-
Farmers Bank & Trust v. Homestead Cmty. Dev.
...end that every constituent of the governing body may examine the items of anticipated expenditures." Washington Township of Nemaha County v. Hart , 168 Kan. 650, 654, 215 P.2d 180 (1950). Transactions in violation of the two laws are void. Our courts have enforced these laws by holding that......
-
Palmer v. First Nat. Bank of Kingman
...no valid claim for its repayment. State, ex rel., v. Board of County Comm'rs, 172 Kan. 601, 242 P.2d 527 (1952); Washington Township v. Hart, 168 Kan. 650, 215 P.2d 180 (1950). This is what is known as the "volunteer rule," which provides that a party who, without mistake, fraud, or duress,......
-
Kopp v. State
...District v. Local Government Employee Management Relations Board, 90 Nev. 442, 530 P.2d 114 (1974); Washington Township of Nemaha County v. Hart, 168 Kan. 650, 215 P.2d 180 (1950); Bodinson Manufacturing Co. v. California Employment Comm'n, 17 Cal.2d 321, 109 P.2d 935 (1941). The Department......
-
Board of Adjustment v. Underwood, 13552
...v. Stapf, 129 Tex. 81, 101 S.W.2d 229; Harrington v. Board of Adjustment, Tex.Civ.App., 124 S.W.2d 401, 404; Washington Tp. of Nemaha County v. Hart, 168 Kan. 650, 215 P.2d 180, 185; accord, 101 C.J.S. Zoning Secs. 208, 209, We, therefore, review the Board's construction of the definition. ......
-
BEYOND CHEVRON: AN ANALYSIS OF IDAHO'S INTERMEDIATE DEFERENCE DOCTRINE AND ITS HYPOTHETICAL APPLICATION IN FEDERAL COURTS.
...1956); Clark County Sch. Dist. v. Local Gov. Emp. Mgmt. Relations Bd., 530 P.2d 114, 117 (Nev. 1974); Wash. Twp. of Nemaha Cty. v. Hart, 215 P.2d 180 (Kan. 1950); Bodison Mfg. Co. v. Cal. Emp't Comm'n, 109 P.2d 935, 939 (Cal. (108.) Id. (109.) J.R. Simplot Co. v. Idaho State Tax Comm'n, 820......