Center Township v. Hunt

16 Kan. 430

Opinion

The opinion of the court' was delivered by

Valentine, J.:

This was an action brought by Center township against Alexander Hunt and others for the purpose of having certain bonds delivered up, declared void and canceled, and also for the purpose of obtaining a perpetual injunction forever restraining the collection of a certain tax. The plaintiff also prayed for a temporary injunction for various purposes, among which was that the defendant Alexander Hunt, treasurer of Wilson county, should be restrained pendente lite from collecting a certain tax levied on the taxable property of said township for the purpose of raising a fund with which to pay the interest on said bonds. Said temporary injunction was granted, but afterward it was so modified as not to further restrain said treasurer from collecting said tax. It is this order modifying said temporary injunction of which the plaintiff now complains.

Was said order erroneous? This is the only question in the case. The petition of the plaintiff was verified by affidavit ; and the petition thus verified seems to have been the sole foundation upon which the plaintiff rested his temporary injunction. Was it sufficient ? Where a petition is used merely as a petition, it may sometimes be held sufficient, although its statements of the facts are so general and comprehensive as to be styled conclusions of fact, or conclusions of law. But where it is also used as an affidavit, and as evidence, as in this case, it must state the facts with all that fullness of detail required in affidavits or depositions. (Atchison v. Bartholow, 4 Kas. 124; Gen. Stat. 675, code, § 239.) Every lawyer knows the difference between the statements of the facts in a petition, and the statements of the facts in an affidavit or a deposition. In an affidavit or deposition they are stated in such minute detail as to be proof or evidence of the more general facts as they are*usually stated in a petition; and we generally call such detailed statements of the facts, evidence. In a petition, if the facts should be stated obscurely, the court upon motion of the adverse party may require that the petition be made more definite and certain by amendment. But no such practice is allowed with reference to affidavits. Hence, an affidavit must stand or fall upon the facts as it alleges them. 'If the affidavit is to be used as evidence, as in this case, and it should state the facts in such general and comprehensive terms as to be styled conclusions of fact, or conclusions of law, the affidavit would not be sufficient. Now for the purposes of this case we may admit that the petition .was sufficient as. a petition to sustain said temporary injunction ; but was it sufficient as an affidavit ? Most clearly not. It does not show that the plaintiff would be injured in the slightest particular by the collection of said tax. It does not show that any of said tax was charged against the plaintiff, or that the plaintiff was in the slightest danger of ever being compelled to. pay the least portion of the same. It is true, the petition alleges that the tax was levied “ upon the taxable property of said Center township;” but from all the allegations of the petition, it is clear beyond all doubt, that the pleader meant that the tax was levied upon all the property taxable in said township. The court below. so construed the petition; and unless it were clear that the court below erred we would not reverse its ruling. The petition does not allege that any tax was ever levied upon “the taxable property of th & plaintiff” or that the plaintiff ever owned any property. The petition simply alleges, as we have before stated, that the tax was levied “upon the taxable property of the said Center township.” Now this allegation would not be sufficient as evidence to prove that the township owned certain property upon which said tax was levied, even if it stood alone, and was not shown to mean otherwise by the other allegations. But other allegations show that this was intended to mean otherwise.

It is claimed by plaintiff that the tax is void because said bonds are void, and that said bonds are void because, issued in excess of ten per cent, of “the taxable property of said Center township.” (Laws of 1872, p. 110, §1.)' The petition alleges that the assessed value of “the taxable property of said Center township ” never exceeded $220,000, and therefore it is claimed that because more than $22,000 of bonds were issued, the whole of such bonds are invalid. Now suppose they are invalid, still the plaintiff has no right to enjoin the tax levied upon the taxable property of the various individuals of the township to pay the interest on them. If any tax should be assessed against the plaintiff, the plaintiff might then perhaps maintain an action to enjoin that tax. But it cannot maintain an action to enjoin a tax assessed against the other taxpayers of the township. One taxpayer cannot enjoin a tax levied against another taxpayer. Each taxpayer must sue for himself, either in an action brought by himself alone, or in an action brought by himself and others with like interests. (Bridge Company v. Wyandotte Co., 10 Kas. 326, 331, et seq.; Hudson v. Atchison, 12 Kas. 140, 146, et seq.) The mere fact that the plaintiff is a public corporation, is not enough to entitle it to sue for the taxpayers in such a case. There is no law making it the guardian of private rights. Besides, if it were as unfortunate in the protection of private rights as it has been in the protection of public rights, it would not be a very safe guardian. It is admitted that it has violated law, reason, and morality by issuing illegal bonds to the amount of $50,000, without any adequate consideration therefor, probably without sufficient capacity to pay them, and certainly with no intention of ever paying them. It has made promise which it never intends to fulfill, and probably could not well fulfill. We think it would be better for it to let the private individuals of the township take care of their own interests. (As to the validity of similar bonds in the hands of a bona fide holder, see Marcy v. Township of Oswego, Labette Co., Kansas, recently decided by the supreme court of the United States.) But the law of this state is such that the public cannot sue merely for the protection of private rights. (The State, ex rel., v. McLaughlin, 15 Kas. 228.) Nor can private individuals sue merely for the protection of the rights of the public. (Craft v. Jackson Co., 5 Kas. 518; Bobbett v. Dresher, 10 Kas. 9; Turner v. Jefferson Co., 10 Kas. 16; Bridge Company v. Wyandotte Co., 10 Kas. 326; Miller v. Palermo, 12 Kas. 14.) Public rights and private rights, public actions and private actions, are kept separate; and no action can be brought except by the party having a special interest in the result. ■ (Crowell v. Ward, ante, p. 60.) That is, the public must sue to protect public interests, and private individuals must sue to protect their own interests. And each must sue in his or its own name. (Crowell v. Ward, supra.) The public must sue in the name of the state, county, city, township, etc., as the case may be; and each individual must sue in his or her own name. An action cannot be brought merely for the benefit of an individual in the name of the public. (The State v. Jefferson Co., 11 Kas. 66; The State v. McLaughlin, and Crowell v. Ward, supra.) If said tax is illegal, then there can be no question as to the right of the individual taxpayers to sue separately, or jointly, as they may choose, for the purpose of enjoining the tax levied against them respectively. (Gilmore v. Norton, 10 Kas. 491; Gilmore v. Fox, 10 Kas. 509.)

It is understood that precisely the same questions are involved in the case of Cedar Township v. Alexander Hunt, and the City of Fredonia v. Alexander Hunt, as are involved in this case; and therefore this opinion is intended for each of the three cases, and the same judgment will be rendered in each of said cases.

The order of the judge of the court below modifying said temporary injunction will be affirmed.

All the Justices concurring.