Perry v. Hogan

46 P. 996, 5 Kan. App. 463, 1896 Kan. App. LEXIS 309

• Court: Court of Appeals of Kansas
• Decided: December 4, 1896
• Docket: No. 1
• Status: Published

Opinion

Gilkeson, P. J.

The tax, the collection of which

is sought to be restrained, was levied for the year 1888 ; and it is admitted by the plaintiffs that up to January 5, 1889, Wallace County was unorganized, and was attached to, and formed a municipal township of, Trego County.

Under paragraph 1610, General Statutes of 1889, Trego County was authorized to levy taxes on the property therein for all purposes except such as are, by the terms of the act, prohibited; and it is nowhere alleged that these taxes were of, or belonged to, the prohibited class. They were, therefore, presumably at least, legally assessed for the year 1888, on property in this unorganized territory as a municipal township of Trego County. This being true, they should be collected; and it was proper for the treasurer of Trego County to collect them by issuing his warrant.

If the 'property was in Wallace County at the time, of seizure by the Sheriff, and Wallace County had become organized prior to that seizure, the treasurer should have issued his warrant to the sheriff of that county. But the petition fails to allege where the property was when seized, and it certainly does not allege that it was not seized in Trego County. Upon the plaintiffs’ own theory of the case, they should show this fact, for it will be presumed that the Sheriff proceeded legally, and that the property was in his jurisdiction. Hence the petition failed to state facts sufficient to authorize the relief prayed for.

The judgment of the court below will be affirmed.