Riley v. Township of Garfield, 54 Kan. 463 (Kan.)

The opinion of the court was delivered by

Horton, C. J.:

It is conceded that when the duty to levy and collect a special tax to pay a special class of debts, or the interest thereon — as, for example, county or township refunding bonds — is so clear and imperative as to admit of no doubt, the court may grant mandamus to compel the levy of a special tax to pay the bonds, or the interest coupons thereof, before they are reduced to judgment. (2 Dill. Mud. Corp. 853; High, Ex. Leg. Rem., §§338, 339.)

I. It is insisted, however, that the validity of the bonds recited in the alternative writ is questioned. The writ alleges that the bonds were duly issued by the proper officers of Garfield county at a time when that county was transacting all the usual and ordinary business of an organized county in this state. A copy of one of the bonds and a copy of one of the coupons mentioned in the writ are annexed to the original application. The bonds are alleged to have been issued in accordance with the provisions of chapter 50, Laws of 1879, approved March 8, 1879, and are regular on their face.

The writ is challenged by a motion to quash. All of its allegations are thereby admitted. No facts are alleged by return or answer affecting the validity of the bonds. It is true that the writ alleges that the township of Garfield, designing and intending to repudiate the indebtedness created by Garfield county, and existing against that county at the time of the taking effect of chapter 98 of the Laws of 1893,

has neglected and refused to levy or cause to be levied a tax upon the taxable property of the township for the purpose of paying the matured and maturing interest coupons of the refunding bonds, claiming that the bonds were not legal obligations against the township. But all of this is stated for the purpose of showing the necessity of the issuance of a writ of mandamus to compel the levy prayed for. As the alternative writ does not allege or suggest that any bond or coupon is invalid or insufficient, it cannot be said the writ shows on its face that the validity of the obligations to enforce which the mandamus is sought is denied.' It is true that questions of law affecting the validity of the bonds are raised by the motion to quash; but these questions can be disposed of in this proceeding as well, and perhaps better, than in an action to obtain a judgment at law upon the bonds. We think there is nothing in this ruling contrary to the prior decisions of this court. Of course, mandamus will not issue to pay interest upon bonds when various questions, both of law and of material facts, affecting their validity, are raised. (14 Am. & Eng. Encyc. of Law, 190; Simmons v. Davis, 25 Atl. Rep. [R. I.] 691; Bailey v. Lawrence Co., 51 N. W. Rep. [S. D.] 331.)

II. It is next insisted that, as Garfield county was organized with an area of only 4304 square miles, and contained an area less thau 432 square miles, its organization was void, and therefore that it never had any legal existence as a county, and that it had no power to issue any refunding or other bonds. Garfield county was created by an act of the legislature in 1887, (Laws of 1887, ch. 81, § 6.) The bonds and coupons recited in the application and alternative writ were issued the 29th of July, 1889. On the 7th of March, 1893, this court dissolved Garfield county, because it contained less than 432 square miles. (The State, ex rel., v. Comm’rs of Garfield Co., ante, p. 372.) But the statute organizing Garfield county was not void upon its face. The dissolution by this court was upon evidence introduced to establish its true area. For more than five years prior to the 7th of March, 1893, all the

departments of the state government recognized Garfield county as legally organized. The legislature defined its boundaries, fixed its name, and declared the territory lying within its boundaries to be “ the county of Garfield.” The governor, acting under general laws providing for the organization of new counties, recognized the act creating the county as valid, and proceeded to the organization of the county. He issued an official proclamation declaring “Garfield county” duly organized as a county of the state. He appointed commissioners and a clerk for Garfield county.

In 1889, the legislature and governor recognized Garfield county three times — once by placing it in the sixteenth judicial district and making it a part thereof; and again by fixing the. lerms of the district court to be held in Garfield county; and again by an act declaring all section lines therein to be public highways. (Liwsof 1889, pp. 166, 341.) In 1891,the legislature again recognized Garfield county by placing it in and making it a part of the thirty- eighth senatorial district, and also further recognized it by fixing the terms of the district court to be held therein. (Laws of 1891, pp. 12, 183, 184.) At the sessions of the legislature held in the years 1889, 1891, and 1893, the house of representatives recognized Garfield county by admitting to the floor and privileges of the house a “delegate,” an 1 at each session both houses united in further recognizing Garfield county, by appropriating money to pay the delegate the same per diem and mileage allowed to members of the legislature. (Laws of 1889, pp. 30, 31; Laws of 1891, pp. 49, 50; Laws of 1893, p. 53.) By numerous other acts passed by the legislature and approved by the governor, Garfield county was recognized as legally organized and existing. From the date of the organization of Garfield county to the decision rendered by this court in March, 1893, the chairman of the board of county commissioners and the county clerk of Garfield county had and exercised the same power and authority in issuing refunding bonds of Garfield county under the general laws of this state, as had like officers in other c runties in issuing like bonds to refund outstanding indebt

edness of their counties. Under all these circumstances, we must hold that the county of Garfield was a defacto organization, from the time of its creation, in 1887, to its dissolution, on the 7th of March, 1893. As was said in School District v. The State, 29 Kas. 57:

In this instance, the element of unconstitutionality was entirely outside of the act itself, hidden and obscure, and could only be discovered by ascertaining the actual area of the county. Although the original organization of Garfield county was without authority from the constitution, yet, as the statute creating the county was not void upon its face, and as the county had a defacto organization, and as the records of such organization appear regular and valid, and as the state officials proclaimed the organization, and as its validity was subsequently recognized by them and the legislature, we must hold that all of the bonds issued by Garfield county under , the provisions of the statute and in regular form, while its organization as a county was in existence, are valid obligations in the hands of bona fide purchasers. (School District v. The State, supra; 2 Beach, Pub. Corp., §890; Ashley v. Supervisors, 8 U. S. C. C. A. 435 — 468.)

III. It is further insisted, that Garfield township is not the successor of Garfield county. We think otherwise. Chapter 98, Laws of 1893, provides:

shall in nowise become liable for any of the indebtedness heretofore created by Finney county, Kansas.

At the time of the dissolution of Garfield county, this court, in pronouncing judgment, preserved the rights and claims of the creditors of that county. Subsequently the legislature organized Garfield township out of the same territory as Garfield county. (The State, ex rel., v. Lewelling, 51 Kas. 562.) “Each organized township in this state shall be a body politic and corporate,” etc. (Township Officers’ Act, § 1.) A new public corporation was created in the place of the old organization of Garfield county. The new corporation was Garfie'd township. That township is, as a public municipal corporation, the successor of Garfield county.

IV. Finally, it is insisted that the bonds recited in the alternative writ were not authorized by the statute under which they purport to have been issued. That statute is chapter 50, Laws of 1879. It authorizes “every county to refund its matured and maturing indebtedness of every kind and description whatsoever.” It is argued that only' indebtedness existing at the time of the passage of the act can be refunded. The act not only permits matured indebtedness to be refunded, but also permits maturing indebtedness. It is prospective, not retrospective. It has been construed continuously by all state and county officials to authorize the refunding of any kind of indebtedness, whether prior or subsequent to the passage of the act. We think this construction is warranted by the language of the act. (Brown v. City of Atchison, 39 Kas. 37; Comm’rs of Hodgeman Co. v. Comm’rs of Garfield Co., 42 id. 409, 413.) The case of Carpenter v. Hindman, 32 Kas. 601, decides that “a county may compromise or refund all of its indebtedness existing at the time of the passage of chapter 50, Laws of 1879, then due or in any time thereafter to become due.” But the opinion

handed down in that case does not limit the application of the act to indebtedness existing at the time of its passage.

The motion to quash will be overruled. Defendants, however, will be given 40 days in which to file a further return or answer to the alternative writ.

All the Justices concurring.