Harper v. City of Conway Springs

The opinion of the court was delivered by Milton, J. :

“By paragraph 6948 of the General Statutes of 1889, it is made the duty of the state board of equalization to apportion the amount of the taxes for state purposes among the several counties, in proportion to the valuation of the taxable property therein, and paragraph 6930 makes it the duty of the county clerk in each county to determine the rate per cent, necessary to raise the taxes required for state purposes, as determined by the state board of equalization, and place the same upon the tax-rolls of the county. ’’ (The State, ex rel., v. Bailey, 56 Kan. 81 , 42 Pac. 373 .)

*612 Section 225 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, §7370), reads:

“If after the settlement by the county treasurer of any county in November of each year as provided in section 99, chapter 34, of the Session Laws of 1876, there shall remain due from such county any portion of the state tax levied for the preceding year, the auditor of state on the second Monday of July in each year succeeding the said November settlement shall report to the county clerk of such county the amounts of such unpaid tax, and the county clerk shall determine the rate per cent, necessary to raise the said amount, and shall place the same' on the tax-roll in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury as are other state taxes.”

The true rate for the year 1888 to raise Sumner county’s apportionment of the state tax was four and one-tenth mills, while the evidence introduced by the defendants shows the rate as fixed by the county clerk to have been four and one-half mills, an increase of ten per cent, in the state levy. Giving the presump.tion that the county clerk duly performed his official duty in respect to the tax-roll its due weight, the inquiry arises whether under any circumstances he could legally have entered on the tax-roll the rate for state taxes at four and one-half mills. It is manifest that if, under the provision of section 225, supra, the auditor of state reported to the county clerk of Sumner county that a balance of state tax was due from such county for the year 1887, it became the duty of the county clerk to add to the regular levy for state purposes the rate per cent, necessary to raise such balance due the state. In the absence of evidence in behalf of the defendants upon this point the presumption arising in the premises was not overthrown, and the *613 tax deed should have been held valid. For the same reason the demurrer to the evidence introduced by the defendants should have been sustained. In Bergman v. Bullitt, 43 Kan. 709 , 23 Pac. 938 , one paragraph of the syllabus reads:

“Presumably, public officers perform their duties as the law requires ; and where it is shown that a levy for taxes was made by the board of county commissioners, which under some circumstances would be legal and under other would be excessive and illegal, it will be presumed, in the absence of evidence showing the existence of conditions that would make it .excessive, that the board acted within the law in making the levy, and that it is legal.”

Referring to the plaintiff’s objection to the introduction of the memorandum made by the county clerk showing the taxes levied in 1888, we think it not the best evidence available. The law requires the county clerk to place the rate per cent, determined by him as necessary to raise the taxes required for state purposes upon the tax-roll of the county, and there is no requirement that any other record of the matter shall be kept. Hence, the tax-roll is the best evidence to show such rate per cent.

The evidence offered by the plaintiff in rebuttal concerning the tax actually levied against each of the lots in controversy for the year 1888 was entirely immaterial and the court properly refused to admit it. The judgment of the district court will be reversed and the cause remanded for a new trial.