in a certain locality, constituting only a part of a municipal organization, to assist in paying such bonds. We think that section 2 of the act of 1883, c. 147, is unconstitutional and void so far as it applies to this case. The judgment of the court below will be reversed, and cause remanded, with the order that judgment be rendered in favor of plaintiff below, and against defendants below, as prayed for in the plaintiff's petition.

HORTON, C. J., concurring.

JOHNSTON, J., (dissenting.) I am of opinion that by the voting of the bonds prior to the division of the township a moral obligation arose and rested upon the people of the territory subsequently detached to pay their proportionate share of the obligation they had voted to assume, sufficient to sustain the retrospective feature of the statute. I am therefore unable to concur in the conclusion reached by the majority of the court that the statute in question is invalid.

(34 Kan. 379)

CITY OF ATCHISON and others v. STATE ex rel. TUFTS, as acting County Attorney of Atchison County, Kansas.

DILGERT and others v. SAME.

ATCHISON NAT. BANK, OF ATCHISON, KANSAS, v. SAME.

Filed November 7, 1885.

MUNICIPAL CORPORATION-ILLEGAL TAX-RIGHT OF STATE TO INTERFERE. Where a city, without authority of law, caused a tax to be levied and extended upon the tax-roll for the purpose of creating a fund with which to pay certain bonds theretofore issued and delivered in payment of bridges that had been built therein, and after the tax-roll had come to the hands of the county treasurer for the collection of the taxes a number of the tax-payers of the city voluntarily paid the illegal tax thus levied: held, that the public has no such interest in the money thus paid as will authorize the state to interfere and to maintain an action in the name of the state, enjoining the treasurer from paying out the money so received by him, and from disbursing it in accordance with the will of those who paid the same.

Error from Atchison county.

Action for injunction brought in the district court of Atchison county on December 31, 1884, in the name of the state of Kansas, on the relation of James F. Tufts, acting county attorney of Atchison county, Kansas, against the city of Atchison, Charles J. Drury, as city treasurer of the city of Atchison, Dilgert & Wagner, John Peterson, James A. Loper, county treasurer of Atchison county, Kansas, and the Atchison National Bank. The petition filed by the plaintiff, omitting the caption, title, and exhibits, is as follows:

First. That said defendant the city of Atchison is a duly incorporated and organized city of the first class, in the county of Atchison, and state of Kansas, and that said defendant Charles J. Drury is the duly appointed, qualified, and acting city treasurer of the said city of Atchison, and that Adam Dilgert and Michael Wagner are partners, doing business under the style and

firm name of Dilgert & Wagner; that James A. Loper is the duly elected, qualified, and acting county treasurer of Atchison county, state of Kansas; and that said Atchison National Bank, of Atchison, Kansas, is a national banking corporation duly organized according to law.

Second. That several property owners of said city of Atchison, having large property interest therein, upon which they annually pay large sums in taxes, are complaining against the certain levies for taxes for the year A. D. 1884, and certain parts and portions thereof, made by the said city of Atchison, and questioning the legality of certain levies of said city of Atchison, as hereinafter fully set out, and object to paying their prorates of the same, and many other tax-payers of said city are uncertain what parts or portion of their taxes are legal or illegal, and declining to pay such as they consider to be illegal.

Third. That among the taxes levied on, to-wit, the eighteenth day of August, A. D. 1884, by the city of Atchison, which plaintiff alleges has for more than one year last past been a duly-incorporated city of the first class, in said county of Atchison, and which were certified to the county clerk of said county to be placed upon the tax-rolls of said county for said year A. D. 1884, there is a tax which is known as a tax for "special bridge fund," eight (8) mills on each $1 of the taxable property of said city of Atchison, which was levied by ordinance No. 545 of said city of Atchison, passed on the twentyfourth day of April, A. D. 1884, and approved by the mayor of said city, April 25, 1884, and which is an ordinance appropriating the sum of twenty-five thousand dollars ($25,000) for the building of certain bridges in the city of Atchison, and providing for the issuing of bonds to pay for the same, a copy of which said ordinance so passed is hereto attached and made a part hereof, marked "Exhibit A."

Fourth. The said election, as provided in said ordinance, was held at the said city of Atchison on, to-wit, the fourteenth day of May, 1884, in pursuance of a proclamation of the mayor of said city of Atchison, of date the first day of May, A. D. 1884, and published in the Atchison Daily Patriot, a daily newspaper printed and published in the city and county of Atchison, and of general circulation therein, from the first day of May to the tenth day of May, A. D. 1884, both of said days inclusive, and not otherwise, at which said election, although the qualified voters of said city of Atchison exceeded in number three thousand, (3,000,) there were cast only six hundred and fifty-nine (659) votes, of which number 487 votes were cast ratifying ordinance No. 545, authorizing the sum of $25,000 for the building of bridges; and 172 votes were cast against ratifying ordinance No. 545, authorizing the sum of $25,000 for building of bridges; and said votes were duly canvassed on, to-wit, the day of A. D. 1884, by the proper authorities, and such proposition voted for at said election was duly declared carried; and plaintiff here attaches said proclamation of said mayor of said city of Atchison, and makes the same a part of his petition herein, marked "Exhibit B."

Fifth. That said bonds specified in said ordinance, and voted for at said election, were duly issued by the said city of Atchison to said defendants Dilgert & Wagner and John Peterson, and are now in the hands of said defendants last named, and of divers and sundry other persons, to said plaintiff unknown.

Sixth. That on, to-wit, the seventh day of June, 1884, the contracts for said bridges were let by said city of Atchison, as follows, to-wit: Parkstreet bridge to Dilgert & Wagner, $4,765; Tenth-street bridge to Dilgert & Wagner, $3,575; Sixth-street culvert to Dilgert & Wagner, $11,500. The building of the following culverts to John Peterson: Culvert on Kearney street, $1,675; culvert on Riley street, $1,100; culvert on Laramie street, $600; culvert on Commercial street, $900; culvert on Seventh street, $700. Seventh. That on the eighteenth day of August, A. D. 1884, said city of

Atchison, by ordinance No. 564, made its levy for taxes for all purposes for the fiscal year A. D. 1884, amounting in the aggregate to 1.45 per cent. upon each $100 of the taxable property of said city of Atchison, and which was duly certified to the county clerk, in manner as herein before stated, and now appears on the tax-roll of said county for the year A. D. 1884, a copy of which ordinance is hereto attached and made a part hereof, marked "Exhibit C.” Eighth. That the levy of taxes by the city and county of Atchison for the year A. D. 1884, for all purposes, on property in said city of Atchison, is 4.78 per cent. on each one hundred dollars ($100) of the taxable property of said city of Atchison, as fully appears by a statement of said taxes, as printed on the back of the tax receipt for said Atchison county for said year A. D. 1884, a copy of which said statement is hereto attached and made a part hereof, and marked "Exhibit D."

Ninth. That the assessed value of all taxable property in said city of Atchison for the year A. D. 1884 was $3,147,160, and that the indebtedness of said city of Atchison at said time was $

Tenth. That said levy for special bridge fund, eight (8) mills on the dollar of taxable property of said city of Atchison for the year A. D. 1884, as a special tax, is illegal, unauthorized, excessive, oppressive, unconstitutional and wholly void, and that the levy thereof by said city of Atchison as a levy for special taxes was illegal, unauthorized, excessive, oppressive, unconstitutional, and wholly void, and that any collection of said tax by any officer would be illegal, unauthorized, and wholly void, and that the payment of said tax, or any part or portion thereof, to the owners and holders of said bonds, or to the contractors for said bridges, would be illegal, unauthorized, excessive, and wholly void, and would be diverting the tax levied for "general improvement" in a manner wholly illegal, unauthorized, unconstitutional, and void, and would tend to largely increase the taxes of said city, both for said year A. D. 1884 and for the year A. D. 1885, and do great and irreparable injury to the public.

Eleventh. Said plaintiff further alleges that said tax of eight (8) mills for "special bridge fund" is a tax for general improvement under the laws of the state, and exceeds by two (2) mills the limit allowed by law to cities of the first class for annual levy of taxes for general improvement, which is six (6) mills on the dollar of the taxable property of said city of Atchison: that the said city of Atchison, as hereinbefore alleged, after levying said tax of eight mills for special bridge fund, also levied a tax of six (6) mills on the dollar of the taxable property of said city of Atchison for said year A. D. 1884 for "general improvement," as herein before alleged, which is the limit allowed by law therefor; that the aggregate of all taxes by the said city of Atchison for said year A. D. 1884 for all purposes excepting for "school," "general revenue," "interest on school bonds," and "sinking fund," "school bonds," and "water-work contract," was 2.30 per cent. on the $100 of the taxable property of said city of Atchison, and exceeds by three (3) mills on the dollar the limit prescribed by law for said levy, which is two (2) per cent. on the one hundred dollars ($100) of the taxable property of the said city of Atchison; that if said tax of eight (8) mills on the dollar for "special bridge fund” is illegal, even to the extent and amount of six mills thereof, that is a tax for general improvement, and any sum or amount of taxes collected by reason thereof would be a part of the general improvement fund of said city of Atchison for said year A. D. 1884, and that by reason thereof said subsequent levy by said city of Atchison of six (6) mills for "general improvement" for said year A. D. 1884 is wholly illegal, unauthorized, excessive, unconstitutional, and void, and that if said levies of said city of Atchison for said year A. D. 1884 of eight (8) mills for "special bridge fund," and six (6) mills for "general improvement," are each thereof legal and valid, then the said aggregate levy by said city of Atchison for A. D. 1884 for all purposes, excepting for v.8P,no.6-24

all school purposes and for water-work contract, is illegal, excessive, unauthorized, and wholly void to the extent of three (3) mills on the dollar of the taxable property of said city of Atchison for said year A. D. 1884, for the reason that the limit of such levy as prescribed by law is two (2) per cent. on each one hundred dollars of said taxable property of said city for said year. Twelfth. That a number of the large property owners and tax-payers of said city of Atchison are refusing to pay certain parts and portions of said tax levy of 3.50 per cent. on each one hundred dollars of the taxable property of said city of Atchison for said year A. D. 1884, and that some of said large property owners and tax-payers of said city of Atchison have refused to pay said tax of eight (8) mills on the dollar, levied as aforesaid by said city of Atchison for “special bridge fund," and have tendered to the county treasurer of said county of Atchison, who is the legal collector of said tax, and of all other taxes of said Atchison county, all their legal taxes for said year A. D. 1884, excepting, however, said tax levied by said city of Atchison for "special bridge fund," and which they refused to pay, which tender, duly made, was refused by said county treasurer; and that thereafter said parties so tendering payment of said taxes have filed their suits in this court to determine the legality of the said tax for "special bridge fund," and that said suits are now pending in this court, and reference is hereby made to the same.

Thirteenth. That in addition to said suits so brought, as aforesaid, to determine the legality of said tax for "special bridge fund," these large property owners and tax-payers refuse to pay said tax for "general improvement, six (6) mills on the dollar, levied as aforesaid by said city of Atchison for said year A. D. 1884; and still others refuse to pay the said excess of three (3) mills in the said aggregate levy by said city of Atchison for said year A. D. 1884, as herein before fully set out; and that said persons so refusing to pay each of said levies for "general improvement," six (6) mills, and said excess of three mills in said aggregate levy for all purposes by said city of Atchison, for said year A. D. 1884, threaten and are about to commence suits to determine the legality of said respective levies, and that by reason thereof there is danger of the courts and public officers of said county of Atchison being unduly burdened by suits of divers kinds, and that the public would be compelled to defend numberless suits, and that by reason of said controversies as hereinbefore alleged few, if any, persons would bid at the tax sale of lands and lots hereafter to be sold for the delinquent taxes of said year A. D. 1884; and that said county and the public would suffer great pecuniary loss by reason of the premises, and for the further reason that a large amount of taxes is now in litigation and unpaid, and that, by reason of the litigation aforesaid, a still larger number of persons and tax-payers of said city of Atchison will refuse to pay the second half of their taxes for said year A. D. 1884, and thereby greatly incumbrance the affairs of said county and the public, and by reason thereof produce great and irreparable injury.

Fourteenth. Plaintiff adopts count thirteen as a part hereof, and further alleges that the only illegality in said levies for said taxes of A. D. 1884 is in said levy of six (6) mills for "general improvement," as in Exhibit C hereto attached, and an excess of two (2) mills on the dollar in said levy of eight (8) mills on the dollar for "special bridge fund," but that said levy of eight (8) mills is, if anything, a levy for "general improvement," and is the first and only legal levy for "general improvement," and that all the taxes collected under said levy of eight (8) mills belong to the general improvement fund of said city of Atchison for said year A. D. 1884.

Fifteenth. Plaintiff adopts count fourteen as a part hereof, and further alleges that the holders of said special bridge bonds should not be paid out of said special bridge fund, or the general improvement fund of said city of Atchison, for the reason that said special bridge bonds are wholly illegal, unconstitutional, excessive, unauthorized, and void, and void in the hands

of any person or persons now holding the same, for the reason that (a) said ordinance No. 545, Exhibit A, did not properly order said work done, and that the ordering of said work and the building of said bridges is wholly unconstitutional, illegal, unauthorized, and void; (b) that the election of the qualified voters under said ordinance was not held at any time or date authorized, and is wholly illegal and void, and that the said election and pretended ratification of said ordinance No. 545 is wholly unconstitutional, illegal, and void; (c) that no proper notice of the time and place of holding said election was given as required by law; (d) that the letting of said contracts, as herein before alleged in count sixth, was in excess of the limit prescribed by law, and in excess of the sworn estimate thereof as furnished by the city engineer of said city of Atchison, as required by law, and that the contracts so let are illegal, excessive, and wholly void, and that all of said special bridge bonds, issued in excess of the amount of the cost of each of said bridges, and the estimate of the said city engineer therefor, are wholly unconstitutional, excessive, illegal, unauthorized, and void; (e) that said bonds are illegal, excessive, and wholly void, for the reason that the bids received therefor were made by said contractors, as well as the estimate of said city engineer therefor, in view of the receiving bonds, instead of cash, as should have been done, and that thereby the cost of said bridges was increasing fully thirty (30) per cent. over what said bids would have been if payment therefor had been made in "cash," as the usual difference in such work done for cash and bonds is fully thirty (30) per cent. in favor of cash work.

Sixteenth. That many persons have now paid their entire taxes of A. D. 1884 to said county treasurer of said Atchison county, Kansas, and that if any of the several levies herein before set out are hereafter decided to be illegal, and such illegal taxes are not theretofore paid on all the property in said city of Atchison for said year A. D. 1884, that a grievous wrong and irreparable injury would be done such persons who have or may hereafter pay such taxes, as all of said illegal levies not paid would be again levied by said city of Atchison for the taxes of A. D. 1885, and would become part of the indebtedness of said city, for which taxes would be levied in A. D. 1885, and that said parties so paying all of their taxes for the year A. D. 1884 would be compelled to pay more than their just proportion of taxes for said year A. D. 1885.

Seventeenth. That if said tax for special bridge fund was levied and is collected as a special tax, that the said defendants the city of Atchison and Charles J. Drury, as city treasurer of the city of Atchison, state of Kansas, are not entitled to receive the same, or to hold and use the same as a special tax, or to therewith pay the present holder of said special bridge bonds, and that said Charles J. Drury, city treasurer, is the president of said defendant the Atchison National Bank, which bank now owns and holds a large amount of said special bridge bonds.

Eighteenth. Said plaintiff further alleges that said defendants threaten and are about to pay so much of the special bridge bonds as become due January 1, 1885, unless commanded to refrain therefrom by this court, and that said defendants Dilgert & Wagner and John Peterson and the Atchison National Bank are threatening and attempting to dispose of such illegal special bridge bonds as are now held in whole or in part by them, and are endeavoring to unload the same on persons unacquainted with the illegalities and legal controversies connected therewith, and thereby produce great and irreparable injury.

Wherefore, plaintiff asks judgment herein that said defendants the city of Atchison, Charles J. Drury, as city treasurer of said city of Atchison, and James A. Loper, as county treasurer of Atchison county, Kansas, be commanded to refrain from demanding payment of, or receiving any taxes collected, or that may hereafter be collected, on account of said levy of taxes for