The opinion of the court was delivered by
Pollock, J.:
[280]*2801. Constitutionality of doimguenttax act. [279]*279The first contention made by counsel for plaintiff in error is that the statute authorizing a levy of thirty-five hundredths of a mill per dollar on the assessed valuation of the property of the consolidated company within the county of Pratt, to pay [280]*280delinquent state taxes, is unequal taxa- ,. , ,, „ ,, , , tion, and, therefore, unconstitutional and void. This precise question was before this court in Railway Co. v. Clark, 60 Kan. 831, 58 Pac. 561, and there decided adversely to the contention now made by counsel for plaintiff in error. Upon a reexamination of this question, the court feels itself bound by, and adheres to, the former decision of this question there made.
The second and important contention of error in this case arises upon the construction of sections 39 and 40, chapter 60, Laws of 1871 (Gen. Stat. 1901, §§ 979, 980).
Section 39 provides:
“The city council are authorized and required to levy annually taxes on all the taxable property within the city, in addition to other taxes, and in sufficient amount for the purpose of paying the interest and coupons as they become due on all bonds of the city now issued or hereafter to be issued by the city, which taxes shall be payable only in cash.”
Section 40 provides :
“At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city, as shown by the assessment books of the preceding year.”
It is earnestly contended by counsel for plaintiff in in error that these sections are repugnant in their terms ; that section 40 is a limitation upon the power of a city of the third class to levy taxes ; that in no year can a levy for all purposes be made in excess of forty mills on the dollar, and that, in consequence, the levy of 155 mills was therefore excessive, and void for want of power.
Counsel for the defendant trust company as ear■nestly contends that these sections may be so con[281]*281strued as to give effect to both; that section 40 is a general provision, and section 39 an exception to this general provision. It must be, and is, conceded-that, if such construction may be given as will support and uphold both sections, such construction should be adopted. Counsel for defendants in error further contends that, as the power of the city to levy forty mills is conceded, and as the same has been neither paid, nor tendered, by the railway company, a permanent injunction was properly refused.
2. mandamus ordering excessive levy not subject attaokateral In support of their respective contentions, counsel cite numerous authorities. However, in the view of the case taken by this court, the construction to be given the statutory pro- . , visions above quoted is no longer an open question in this case. Whatever weight might be given to the argument of counsel for plaintiff in error, timely made, is here foreclosed. It is a rule of universal application that, in an action between the same parties, or those in privity with them, on the same claim or demand, a judgment on the merits is conclusive, not only as to every matter actually litigated, but of every matter which might have been offered to sustain or defeat the claim or demand. (Townsdin v. Shrader, 39 Kan. 286, 18 Pac. 186; Sanford v. Oberlin College, 50 id. 342, 31 Pac. 1089; Hyatt v. Challiss, 59 id. 422, 53 Pac. 467; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Dimock v. Revere Copper Company, 117 U. S. 559, 6 Sup. Ct. 855, 29 L. Ed. 994.)
It must be borne in mind that it was sufficiently pleaded, and admitted upon the trial of this case, as shown by the record, that the trust company, by proper proceedings in mandamus, obtained, by the consideration of the district court of Pratt county, a [282]*282peremptory writ of mandamus, commanding the mayor and city council of the city of Saratoga, and their successors in office, to make a levy of 150 mills on all the taxable property in said city, with which to make payment of its judgments. The parties to that action were the trust company, defendant in error herein, on the one hand, and the public officers of said city, charged by law with the duty of making a levy in their representative capacities, on the other.
The precise question now here attempted to be raised, that is, the power of the officers of said city, under the law, to make a levy of 150 mills, was necessarily in issue in that proceeding, and the district court could have directed no levy to be made which the city and its officers had not the power to certify and cause to be made under the statute law of the state. The extent of this power under the statutes must have been the very question first presented to that court for its determination, and its decision thereon is binding and conclusive so long as that decision remains unreversed, unmodified, and unimpeached for fraud, and it binds not only the parties to the record in that proceeding, but all persons whom they in their official capacity represented.
„ . &audedT?Tadirmont against city. The plaintiff in error in this case was a taxpayer in said city. As such taxpayer of the city, it was represented by the officers of the city, was in privity with them ; hence, the litigation, decigion ^ judgment ^ thftt proceeding is binding and conclusive on plaintiff in error and every other taxpayer within the city, on all questions that were, or might have been, litigated in such action, until such judgment is impeached for fraud or collusion. (Holt County v. National Life Ins. Co., 80 Fed. 686, 25 C. C. A. 469; Freem. Judg. §178; 2 [283]*283Black, Judg. § 584; Clark v. Wolf, 29 Iowa, 197; Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. 965; Grand Island & N. W. R. Co. v. Baker, 45 Pac. [Wyo.] 494.)
It follows, as a necessary conclusion, that the identical question here presented for our determination is, by reason of the judgment and decree of the district court of Pratt county in the mandamus proceeding, conclusively determined ; that the successors in office of those parties defendant in that proceeding, in their representative capacities, are merely ministerial officers for the purpose of carrying into effect the judgment and command of the court in that case, and their action, taken in obedience to that decision, cannot be controlled or enjoined in this subsequent suit.
The remaining insistence of counsel for plaintiff in error is, that no tax was regularly levied in the city of Saratoga in the year 1894. This contention is based upon the assumption that the attempted election for choice of mayor and members of city council was defective and void, and conferred no power on the parties assuming to act to make a levy or to make it in manner and form as made. It is shown by the record that no proclamation calling the election was given.
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The opinion of the court was delivered by
Pollock, J.:
[280]*2801. Constitutionality of doimguenttax act. [279]*279The first contention made by counsel for plaintiff in error is that the statute authorizing a levy of thirty-five hundredths of a mill per dollar on the assessed valuation of the property of the consolidated company within the county of Pratt, to pay [280]*280delinquent state taxes, is unequal taxa- ,. , ,, „ ,, , , tion, and, therefore, unconstitutional and void. This precise question was before this court in Railway Co. v. Clark, 60 Kan. 831, 58 Pac. 561, and there decided adversely to the contention now made by counsel for plaintiff in error. Upon a reexamination of this question, the court feels itself bound by, and adheres to, the former decision of this question there made.
The second and important contention of error in this case arises upon the construction of sections 39 and 40, chapter 60, Laws of 1871 (Gen. Stat. 1901, §§ 979, 980).
Section 39 provides:
“The city council are authorized and required to levy annually taxes on all the taxable property within the city, in addition to other taxes, and in sufficient amount for the purpose of paying the interest and coupons as they become due on all bonds of the city now issued or hereafter to be issued by the city, which taxes shall be payable only in cash.”
Section 40 provides :
“At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city, as shown by the assessment books of the preceding year.”
It is earnestly contended by counsel for plaintiff in in error that these sections are repugnant in their terms ; that section 40 is a limitation upon the power of a city of the third class to levy taxes ; that in no year can a levy for all purposes be made in excess of forty mills on the dollar, and that, in consequence, the levy of 155 mills was therefore excessive, and void for want of power.
Counsel for the defendant trust company as ear■nestly contends that these sections may be so con[281]*281strued as to give effect to both; that section 40 is a general provision, and section 39 an exception to this general provision. It must be, and is, conceded-that, if such construction may be given as will support and uphold both sections, such construction should be adopted. Counsel for defendants in error further contends that, as the power of the city to levy forty mills is conceded, and as the same has been neither paid, nor tendered, by the railway company, a permanent injunction was properly refused.
2. mandamus ordering excessive levy not subject attaokateral In support of their respective contentions, counsel cite numerous authorities. However, in the view of the case taken by this court, the construction to be given the statutory pro- . , visions above quoted is no longer an open question in this case. Whatever weight might be given to the argument of counsel for plaintiff in error, timely made, is here foreclosed. It is a rule of universal application that, in an action between the same parties, or those in privity with them, on the same claim or demand, a judgment on the merits is conclusive, not only as to every matter actually litigated, but of every matter which might have been offered to sustain or defeat the claim or demand. (Townsdin v. Shrader, 39 Kan. 286, 18 Pac. 186; Sanford v. Oberlin College, 50 id. 342, 31 Pac. 1089; Hyatt v. Challiss, 59 id. 422, 53 Pac. 467; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Dimock v. Revere Copper Company, 117 U. S. 559, 6 Sup. Ct. 855, 29 L. Ed. 994.)
It must be borne in mind that it was sufficiently pleaded, and admitted upon the trial of this case, as shown by the record, that the trust company, by proper proceedings in mandamus, obtained, by the consideration of the district court of Pratt county, a [282]*282peremptory writ of mandamus, commanding the mayor and city council of the city of Saratoga, and their successors in office, to make a levy of 150 mills on all the taxable property in said city, with which to make payment of its judgments. The parties to that action were the trust company, defendant in error herein, on the one hand, and the public officers of said city, charged by law with the duty of making a levy in their representative capacities, on the other.
The precise question now here attempted to be raised, that is, the power of the officers of said city, under the law, to make a levy of 150 mills, was necessarily in issue in that proceeding, and the district court could have directed no levy to be made which the city and its officers had not the power to certify and cause to be made under the statute law of the state. The extent of this power under the statutes must have been the very question first presented to that court for its determination, and its decision thereon is binding and conclusive so long as that decision remains unreversed, unmodified, and unimpeached for fraud, and it binds not only the parties to the record in that proceeding, but all persons whom they in their official capacity represented.
„ . &audedT?Tadirmont against city. The plaintiff in error in this case was a taxpayer in said city. As such taxpayer of the city, it was represented by the officers of the city, was in privity with them ; hence, the litigation, decigion ^ judgment ^ thftt proceeding is binding and conclusive on plaintiff in error and every other taxpayer within the city, on all questions that were, or might have been, litigated in such action, until such judgment is impeached for fraud or collusion. (Holt County v. National Life Ins. Co., 80 Fed. 686, 25 C. C. A. 469; Freem. Judg. §178; 2 [283]*283Black, Judg. § 584; Clark v. Wolf, 29 Iowa, 197; Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. 965; Grand Island & N. W. R. Co. v. Baker, 45 Pac. [Wyo.] 494.)
It follows, as a necessary conclusion, that the identical question here presented for our determination is, by reason of the judgment and decree of the district court of Pratt county in the mandamus proceeding, conclusively determined ; that the successors in office of those parties defendant in that proceeding, in their representative capacities, are merely ministerial officers for the purpose of carrying into effect the judgment and command of the court in that case, and their action, taken in obedience to that decision, cannot be controlled or enjoined in this subsequent suit.
The remaining insistence of counsel for plaintiff in error is, that no tax was regularly levied in the city of Saratoga in the year 1894. This contention is based upon the assumption that the attempted election for choice of mayor and members of city council was defective and void, and conferred no power on the parties assuming to act to make a levy or to make it in manner and form as made. It is shown by the record that no proclamation calling the election was given. In the very nature of things none could be given, but all the qualified voters in the city at the time of the election are shown to have been present and to have participated in the same. The parties voted for assembled on the night of the election and canvassed their own vote and declared the result, subscribed their respective oaths of office, and passed the ordinance making the levy complained of, in obedience to the command of the district court contained in the peremptory writ of mandamus. This ordinance was not recorded and kept in the book of ordinances of [284]*284the city, but upon a separate paper, the ordinance book not being in the possession of the newly-elected officers of the city. But, conceding these irregularities, does it render void the act of the officers acting in ministerial capacities under the command of the court so to act? Certainly not. Their rights to the offices have never been directly assailed. Their selection to office appears to have been fairly determined at an election held upon the day by law provided for the holding of such elections, and was participated in by all the qualified electors remaining in the' city, and appears to have been conducted as nearly in conformity with the provisions of the law in that respect as the exigencies of the case would admit. Their right to act is thus placed beyond dispute in this collateral proceeding, and could only be inquired into in a direct proceeding instituted for such purpose. (McCrary, Elect. § 316; Hadley v. Mayor, 33 N. Y. 603, 88 Am. Dec. 412; Hunter v. Chandler, 45 Mo. 452; The People v. Vail, 20 Wend. 12; People v. Jones, 20 Cal. 50; Taylor v. Taylor et al., 10 Minn. 107)
The tax so levied by ordinance, having been duly certified to the properly constituted authorities and regularly extended upon the tax-rolls of the county, constitutes a proper charge on the property. The fact that the ordinance levying this tax was not recorded in the regular ordinance book of the city cannot avail plaintiff in error in this suit. Proper proof of the passage of such ordinance was made, and that is sufficient. (City of Troy v. A. & N. Railroad Co., 11 Kan. 519; City of Solomon v. Hughes, 24 id. 211; K. C. Ft. S. & G. Rld. Co. v. Tontz, Treas., 29 id. 460.)
The power to make the levy of 135 mills on the assessed valuation of the property of the consolidated company in the former city of Saratoga, by the [285]*285township trustee of Saratoga township and county board, under the provisions of section 979, General Statutes of 1901, at the next annual levy of taxes after the city had been dissolved as a body corporate, and the territory therein had been remitted to and become part of Saratoga township, from which the same had been created, is not seriously contested, and must be sustained.
It follows as a necessary consequence from what has preceded that the judgment refusing a perpetual injunction must be sustained.
It is so ordered.
Doster, G. J., Smith, J., concurring.