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special bridge fund, the same being a tax of eight (8) mills on the dollar of the taxable property of the said city of Atchison for said year A. D. 1884, and to refrain from paying out any money by them received on tax levy of the city of Atchison for said year A. D. 1884 on what is known as “special bridge fund tax," eight (8) mills on the dollar, and to refrain from paying any of the special bridge bonds, for the payment of which said tax was levied, until the further order of this court, and that said defendants Dilgert & Wagner and John Peterson and the Atchison National Bank be coinmanded to refrain from selling, or attempting to sell, or transferring, or attempting to transfer, or hypothecating or otherwise parting with the ownership, possession, or control of the special bridge bonds received by them until the further order of this court, and that upon the final hearing hereof that said ordinance levying said tax of eight (8) mills for special bridge fund, and that said levy and said special bridge bonds, and each thereof, be adjudged and declared wholly illegal, excessive, unauthorized, unconstitutional, and void, and will the court grant such other and further and proper relief as may seem just and equitable, with costs of suit.
At the hearing upon the verified petition, the court granted a temporary injunction commanding the city of Atchison, the city treasurer, and the county treasurer to refrain from paying out any money received by them, or to be received, on the tax levy made by the city of Atchison for the year 1884, and known as the “special bridge fund, and to refrain from paying any of the special bridge bonds, for the payment of which said tax had been levied. The defendants subsequently moved to set aside and vacate the temporary injunction, for the reason that the plaintiff was not entitled, under the pleadings, to an injunction, or to the relief prayed for, and because the plaintiff had no interest in the subject matter of the controversy. This motion was orerruled, and excepted to. Defendants then separately demurred to the plaintiff's petition upon the grounds
First, that the petition did not state facts sufficient to constitute any cause of action against the defendants; serond, that the plaintiff has no legal capacity to sue; third, that there is a defect of parties plaintiff; fourth, that there is a defect of parties defendant; fifth, that several pretended causes of action are improperly joined.
These demurrers were considered and overruled, when, upon application of the defendants, Dilgert & Wagner, John Peterson, and the Atchison National Bank were allowed further time to answer, but the city of Atchison, Charles J. Drury, city treasurer, and James A. Loper, county treasurer, declined to plead further, and electing to stand upon the demurrers which they had filed, the court thereupon rendered judgment against the last-named defendants for costs, and decreed“That they, and each of them, be and they are perpetually enjoined from demanding payment of, or receiving any taxes heretofore collected, or that may hereafter be collected, on account of the said levy of tax for special bridge fund, the same being a tax of eight mills on the dollar for the year A. D. 1884, and are enjoined from paying out any money by them hereafter received on tax levy of the city of Atchison for said year, or what is known as the “spe. cial bridge fund’ tax.”
The defendants, and each of them, excepted to the rulings mentioned, and now bring the case here for review by petition in error and transcript of the record.
Everest & Il’aggener and Smith & Solomon, for plaintiffs in error. Coates & Bird, for defendant in error.
JOHNSTON, J. On April 24, 1884, the city council of the city of Atchison enacted an ordinance appropriating $25,000 with which to build certain bridges in the city, and as there was no money in the treasury for that purpose, it was therein provided that the proposition of issuing the bonds of the city in the amount of $25,000, to be used in payment of the bridges, and the levy of a special tax to pay such bonds, should be submitted to the qualified voters of the city for their ratification or rejection. In accordance with the provisions of the ordinance, the election was held on the fourteenth day of May, 1884, and upon the canvass of the vote by the proper authorities it was found and declared that the proposition had been carried. The city then entered into contracts with the defendants Dilgert & Wagner and John Peterson for the construction of the bridges, and issued and delivered the bonds that had been voted in payment therefor. Afterwards the city levied, and caused to be extended upon the tax. roll, a special tax of eight mills on the dollar of the taxable property of the city for the purpose of paying the bridge bonds. The county treasurer obtained the possession of the tax-roll and proceeded to collect this tax, and had collected a considerable amount thereof, when, on December 31, 1884, this action was brought in the name of the state of Kansas by the acting county attorney of Atchison county. It was alleged by the plaintiff, as will be seen in the petition heretofore set out, that the bonds issued for the building of the bridges were for many reasons unauthorized by law, and that the tax levied for the payment of the bonds was illegal and void, and the plaintiff prayed the court to enjoin the disbursement of the money collecied, or to be collected, upon such levy. To this extent a temporary injunction was granted, and upon the exceptions to the refusal of the court to vacate the temporary injunction, and to the ruling of the court upon the demurrers to plaintiff's petition filed by defendants, they come here by their several petitions in error, and raise the question that the state of Kansas has no special interest in the subject-matter of the controversy,
and therefore cannot maintain this action. In the determination of this question we must assume the truth of all proper allegations in plaintiff's petition, and for the purposes of this case we will assume, but not decide, that the tax in question, a portion of which has been collected, is excessive, illegal, and void. It is to be noticed that the contuntion in the case is in regard to the disposition of the money arising from the alleged illegal levy. The plaintiff does not seek to stay the hand of any of the officers in the further collection of the tax, but only asked what the district urt granted, namely: that the defendants be “enjoined from demauding payment of, or receiving taxes heretofore collected, or that may be hereafter collected, on account of said levy of taxes for special bridge fund, the same being a tax of eight mills on the dollar, for the year 1884, and enjoined from paying out any of the money by them hereafter received on tax levy of the city of Atchison of what is known as the special bridge fund tax.?” Conceding, then, that the tax is illegal,
' what interest has the state of Kansas in the controversy? If private rights and private interests only are involved, then the state cannot maintain the action. It can only be brought by the party who is beneficially or specially interested in the subject matter. This is not a case to prevent a corporation or its officers from violating the law, or from abusing the powers conferred upon them by the law. The bonds alleged to be unauthorized and illegal have long since been execated and delivered. The bridges, for the payment of which the bonds were issued, have been built and paid for by the city. The levy of taxes said to be illegal has been made and extended upon the taxroll, and, so far as the city is concerned, it has consummated what are alleged to be illegal and unauthorized acts. It seems to us that the community at large had no special interest in the relief prayed for, and was not concerned as to the disposition of the fund which certain individuals had voluntarily paid in to be applied in payment of these bonds. There is a striking
There is a striking analogy between this case and that of State v. McLaughlin, 15 Kan. 228. There certain bonds alleged to be illegal had been issued by a school-district, and a levy had been made to pay them off, and the proceedings had advanced so far that the county treasurer had possession of the tax-roll and was proceeding to collect, with the other taxes, the tax for the payment of the bonds, when the state interfered, upon the relation of the attorney general, and asked that the county treasurer be enjoined from taking any further proceedings in the collection of that tax. In speaking of the right of the state to sue, the court remarked that,
“It is obvious that this interference on the part of the state is unnecessary for the protection of any rights. It is not a case where, but for the intervention of the state, an irremediable wrong would be perpetrated. Conceding the bonds to be void, each and every tax-payer has ample protection by an action of injunction. Nor is a multiplicity of suits necessary. The tax, as a tax, being illegal, all the tax-payers may unite in a single action. Hudson v. Commissioners Atchison Co., 12 Kan. 140. It is apparent, too, that no action of the corporation, the school-district, is sought to be prevented. * * * It is obvious that the state, as a state, has no direct interest in this controversy, any more than a controversy between individuals. The payment of these bonds may be illegal, but their payment works no greater wrong to the state than the payment by a single individual of an illegal debt. The single individual may, if he chooses, by appealing to the ordinary proceedings of the law, protect himself against such illegal payment. So may the many taxpayers.”
Here the complaint is not made by the city nor by the tax-payers. Probably for the purpose of showing an interest in the public, the plaintiff alleges that some of the tax-payers are in doubt about the
legality of the tax, and are questioning and refusing to pay the same. If this be true, and they desire to prevent its collection, their remedy is ample and complete, as shown by the decision in State v. MCLaughlin, supra. A tax-payer, or many tax-payers united, may maintain such an action. In such a case the action would be between parties actually and specially interested. A multiplicity of suits could thereby be avoided, and the exact questions sought to be raised in this case could be fully determined. The point made that the county may be embarrassed by reason of the objection to the tax, and the failure of the tax-payers to pay the same, and the probable lack of bidders at the tax-sale thereafter to be held, is without force in this proceeding. It appears that the special bridge fund tax is separate and distinct from all other levies, and the tax-payer can therefore distinguish, if he chooses, the legal from the illegal tax. But, more than that, the plaintiff does not desire, or at least is not asking, to restrain further proceedings in the collection of the tax. In fact, by the petition of the plaintiff, it is assumed and evidently intended that the county treasurer shall continue to collect the tax, and shall sell the property, if necessary to accomplish that end. He asks that the county treasurer shall hold and not pay out the money hereafter collected under such levy. As heretofore stated, the real controversy in the case is in regard to the disposition of the money which parties have voluntarily paid or may pay to the county treasurer for a specific purpose. It is true that the plaintiff, in connection with the prayer to restrain the disbursement of the money, asks that the bonds be declared void; but it is admitted that they have been already issued and delivered, and it is conceded that there is authority in the city to issue bridge bonds, and while the bonds may not have been issued in conformity with such authority, yet it does not appear from the allegations of the petition that they are void in the hands of those holding them. This question, like the others, can be determined in an action between parties interested. However, this was not the real object of the proceeding, but, as stated in the argument of the plaintiff in this court, it is an action to prevent the illegal payment of money, and was not brought to prevent the collection of the taxes. The plaintiff argues the case upon the theory that the money in controversy is a public fund, and therefore its application is a matter of public concern; but if the levy was made without authority of law, as the plaintiff alleges, the money which the taxpayers choose to pay thereunder does not constitute public revenue. Under that theory there was no legal obligation resting upon the taxpayers to pay the money, and that which they did pay does not constitute a public fund in which the community at large has any
interest. Its disposition is a matter of private interest between the holder of the bonds and the tax-payers of the city. So that in no view which can be taken of the case can we say that there is such a public interest as will authorize the state to interfere or to maintain the action. State v. McLaughlin, supra; Ewing v. Board Ed. Jefferson City, 72 Mo. 436; Attorney General v. Sulem, 103 Mass. 138; People v. Clark, 53 Barb. 171; Attorney General v. Burrell, 31 Mich. 25; People v. Booth, 32 N. Y. 397.
Indeed, it would seem from the showing made by the plaintiff that even the tax-payers could not maintain an action to recover from the county treasurer the money which they have paid. It appears to have been a free and voluntary act upon their part, and it has been settled by the repeated decisions of this court that money thus voluntarily paid cannot be recovered back by the individual paying the same. Phillips v. Jefferson Co., 5 Kan. 412; Wabaunsee Co. v. Walker, 8 Kan. 431; Kansas Pac. Ry. Co. v. Commissioners Wyandotte Co., 16 Kan. 587; Sapp v. Commissioners Brown Co., 20 Kan. 243; Thimes V. Stumpff, 33 Kan. --- ; S. C. 5 Pac: Rep. 431.
If the action brought by the plaintiff could be maintained, the peculiar dilemma is presented of inferentially authorizing the defendant James A. Loper to receive all moneys which persons choose to. pay on account of the bridge bonds, and after its receipt to lock the same up in his hands so that it cannot be applied in payment of the bonds, as intended by those who contributed it, and cannot be applied or paid out by him on any account nor for any purpose. The citizens of Atchison may, if they see fit, absolutely donate their money to the city or to any individual, and no reason is seen why they cannot, if they desire to do so, contribute their money to be applied upon the bonds issued in payment of the bridges that have been constructed in the city. It would seem in such a case that the defendant Loper would be regarded as a trustee for the individuals paying the same, and it would therefore be his duty to apply the money so received in accordance with the will of those for whom he was acting. However that may be, we are satisfied that the public has no such interest in the controversy as will authorize the plaintiff to maintain this action; and therefore the judgment of the district court will be reversed, and the cause remanded for further proceedings.
(All the justices concurring.)