Todd v. City of Atchison

The opinion of the court was delivered by Wells, J. : The only question in this case is, Does the special assessment authorized by law for guttering and paving streets in cities constitute a tax under the provisions of section 9 of article 15 of the constitution? ■The contention of the plaintiff in error is substantially that the homestead-exemption law is to be liberally construed ; that the supreme court has held that the taxation referred to in section 1 of article 11 does not include special assessments (Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788) ; that, therefore, the. same term in section 9 of article 15 does not include special assessments. This reasoning is not conclusive, even if we admit the correctness of the premises. It was said in Hines and others v. The City of Leavenworth and others, 3 Kan. 197: “Ordinarily such would be the case, but it is not [252] necessarily so. The intention of the lawmaker must control, and the intention is to be ascertained from all that is expressed rather than from the technical or general signification of a word. For example : The word ‘ officer ’ in some' of the clauses of the constitution of the United States includes members of the national legislature, while the same word in other clauses does not include them. The general nature of the article or section in which they occur — the connection in which they stand — the probable object to be accomplished, and many other considerations, may and should be looked to to ascertain the meaning of the particular words. ... If in construing the eleventh article the word ‘ assessment ’ be taken in its common acceptation, and in interpreting the twelfth article in its technical sense as above indicated, all difficulty in construing and harmonizing the two articles will vanish.” But the fact is that the supreme court, in sustaining the validity of special assessments, notwithstanding section 1 of article 11 of the constitution, did not base the decision upon any definition of the terms “ tax” or “taxation,” but upon the general principle that said article relates exclusively to finance and taxation, and only requires that all ordinary and usual assessments and taxation shall be imposed at a uniform and equal rate ; and all extraordinary and uncommon kinds of assessments and taxation are left to be regulated by law in the same manner as the same would be regulated if said constitutional provision did not exist. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 242.) That the assessments authorized to be levied upon the property benefited by paving streets are taxes cannot be disputed. They are so referred to in the statute. They are stated to be taxes in Comm’rs of Ottawa Co. v. Nelson, supra, and are embraced in any proper general definition of that word. That the [253] framers of the constitution did not intend to exempt the homestead, from the payment of this kind of taxes admits of scarcely a doubt. The judgment of the district court will be affirmed.