Super v. Tadlock

The opinion of the court was delivered by West, J.: The defendants seek by this rehearing to have reconsidered the rule announced in the former decision (Super v. Modell Township, 92 Kan. 979), that townships taxes may be levied to pay a judgment recovered for injuries received by reason of a defective highway, under the classification of “other purposes” found in section 9584 of the General Statutes of 1909, which provides that the trustee shall at the July session of the board of county commissioners, annually, with the advice and concurrence of the board, levy a tax on the property in the township “for township road and other purposes.” It is insisted that the former decision was wrong in- that the words “other purposes” were given an elasticity of meaning not justified by the constitution, statute and decisions. 403 The theory of the former ruling was that the legislature has made townships liable for injuries caused by defective highways; that such liability is not an ordinary township expense; that no special provision is made for the levying of a tax to pay such a claim; that by section 9423 of the General Statutes of 1909 the township trustees are empowered to determine and fix the rate of levy and taxation in their respective townships for township purposes and to levy a tax for township purposes not to exceed three-fourths of a mill on the dollar, the next section providing for the levying of a tax not exceeding three-lourths of a mill for the creation of a fund to improve roads and highways and to be kept separate from other township funds; that the township had power to levy for other purposes before these provisions were enacted (Laws 1909, ch. 256, § 1) and they do not limit such authority. When the townships were first made liable for injuries of this kind (Laws 1887, ch. 335) their authority to levy taxes covered “township, road and other purposes,” and as no separate provision has been made authorizing a levy for the express, purpose of paying such claims it 'seems fair to presume that the legislature deemed the general authority to levy for “other purposes” sufficient to provide a fund to pay such damages or judgments recovered therefor. It has frequently been said that when a special liability is cast on a municipality by a statute an implication arises of authority to tax for its payment unless such authority be. expressly withheld. (Rose v. McKie, 145 Fed. 584, syl. ¶ 2, 591.) The question has been reexamined and the majority of the court adhere to the former decision.