Smith v. Comm'rs of Leavenworth

The opinion of the court was delivered by Valentine, J.: This action was commenced in the court below for the purpose of restraining by injunction the county commissioners and the treasurer of Leavenworth county from collecting from the plaintiff two certain taxes, to wit: a “sinking-fund tax,” and a “bridge tax.” The injunction was refused, and'¡the plaintiffs now bring the case to this court. These two taxes are independent of and have no conhection with each other, except that some of the irregularities complained of affect both of them and also all the other taxes levied for that year (1870) in the same manner and to the same extent. The plaintiffs (or a portion of them) have paid all their other taxes, and have paid these two taxes so far as they are levied on their personal property, but none of the plaintiffs have paid these taxes or any portion of them so far as they are levied on their real estate. I. It has already been several times decided in this court that the remedy of injunction will not lie to restrain the collection of taxes for mere irregularities, and we again affirm' the doctrine. Mo. Riv., Ft. Scott & Gulf Rld. Co. v. Morris, 7 Kas., 210; K. P. Rly Co. v. Russell, 8 Kas., 558; Parker v. Challiss, ante, 155. And this settles nearly all the questions raised in this case. II. It is claimed in the petition in the court below, 'that the plaintiffs’ property should have been assessed by the county assessor, and not by township assessors, as seems to have been done; but as there was no county assessor and only township assessors for the year 1870, we sujqwse the assessment was properly made. It is claimed that “the township assessors did not agree upon an equal basis of valuation for 1870, as required by law,” (Laws of 1870, ch. 120.) The real claim as we understand it, is, that the assessors did not meet at all for that purpose, as required by law. This was a mere irregularity. [301] Each assessor was bound to assess the property of his township at its true value, whether the assessors had any meeting or not, or whether the assessors agreed upon any basis of valuation or not. It is claimed “that there was no assessment roll of said county for the year 1870.” This is exceedingly technical, as we understand the facts. It is not claimed, as we understand, that the township assessors did not properly assess the property of their respective townships, or make the proper returns of their assessments. Neither is it claimed that there was not an assessment roll for each township. Now if there was an assessment roll for each township, then it was not necessary that there should have been another one for the county. III. It is claimed that the levy of 11 mills for the sinking-fund tax was excessive. The evidence does not show this to be true; but if it does, the excess must have been slight; it could not have been very great, and was therefore only a mere irregularity. Before a court would interfere to set aside a tax for this reason this excess would have to be enormously great. But the plaintiffs have not placed themselves in a condition to raise this question. They have not paid nor offered to pay any part of this sinking-fund tax on their real estate. It is claimed that the sinking-fund tax was not levied for the sinking fund, but for the purpose of paying the interest on certain bonds. This is not shown to be true by the evidence. The evidence is conflicting, but the weight or preponderance of the same seems to show that the tax was levied for the sinking fund, and not to pay said interest. The .preamble attached to a certain resolution adopted by the county commissioners on the 12th day of April 1871, which reads as follows: “ Whereas, for certain prudential reasons, the Leavenworth county board did, at the levy made September 5 th 1870,/or the payment of interest on the Platte City & Fort Des Moines Railroad bonds, levy the same in the name of the sinking fund, therefore, Be it Resolved,” etc., although supposed to prove so much by the plaintiffs is nevertheless very weak evidence for their purpose, and the other evidence clearly overbalances it. [302] It is claimed “that some, one or more, of said county commissioners are interested personally and pecuniarily in said Platte City & Fort Des Moines Rid. bonds.” This if true amounted to nothing, unless it tends to explain the reason for adopting the foregoing preamble, and the resolution following it; and in such case it tends to impeach the plaintiffs’ own evidence; it tends to impeach the truthfulness of the preamble itself. It is claimed “that the tax of eleven mills upon the plaintiffs’ real estate levied for the purpose of paying off the bonds and interest on the same issued by the said board of county commissioners to the Kansas & Missouri Bridge Company, is illegal and void.” Upon this point the plaintiffs have not proved facts enough to raise any question of law. The evidence, meager as it is, is all against them. The plaintiffs have proved nothing, and the defendants not very much. It is true that the plaintiffs have in their petition made bold allegations that the tax was void, etc., but such allegations do not amount to evidence. The plaintiffs seem to have labored under the erroneous notion that they were the defendants, or that they had the negative of the issue, and that upon the defendants rested the burden of proof, while in fact the burden of proving everything rested upon the plaintiffs themselves. The evidence seems to show that everything had been done so as to authorize the commissioners to borrow $250,000, and that the commissioners did borrow that amount, and issued the bonds of the county as evidences of the indebtedness thereby created. That the county had a right to issue some kind of evidence of indebtedness, we suppose will not be questioned. But whether these bonds were such as should have been issued we are unable to say, as no copy of any one of them is given, and the -form of no one of them is described. The order of the court below refusing the temporary injunction must be affirmed. Kingman, C. J., concurring. Brewer, J., did not sit in the ease.