CITY OF AUGUSTA.
Oourt, J)i Kan8a8. 1887.) 1.
RAILR.O,4.D COMPANIES-MUNICIPAL Am-I'OWER TO ISSUE BONDS.
Section 4 of· the Kansas act for the Ol'ganization of cities of the third class. (Comp: LlI.WB Kan. 187,) which provides,that such cities shall remain a part of the .corporatelimits ofthe townships in .which they are situated. forvarious purposes, including that of subscribing stock in aId of constructing railroads, does not exclude such cities from the power to issue railroad aid bonds.
Utidersection 63 of theso.me act,which provides that the council of such citills shall tll,ke. all needful steps to protect intere!lt!l of the city in any railroad leading from or towards the same, .cities 'of the third class are authorized to become interested in railroad enterprises. .';,
Kal1. 1876. 0.107, as amended in 18!77, (Comp·. Laws, 792,) relating to aid in the construction of railroads, expressly authorizes anN city, upon cer· tain COnditions, to issue bonds for railroad purposes.
John 'O'J)dy, .... S. O. Thctbher" for defendant·.
" ' } " . f; ";'.:;' '''f
. This on rail\oad aid bonds,and the qnestion to ,the secopd count of the answer is as to the presented by ,t4e power of the defendant 'city to issue shchbonds; for, if the power existed, the. recit!+1ftir ,bonds cut off defe,ndant is a city of the thJrd d4ss. forthe6rganization of such cities was passed in 1871. ' 4 follows:' ,..,'
governed by shall be and raD,lain a Fhe, corporate qf the municipal.to\vnships in which the sltme are sltqatEld.for alItowtiship purposes of electIng justIces of the peace, constables,' 1'or the 'purpose of 'buildingbHdges' and subscribing stock in aid of constructing railroads. ,All elections for justices of the' peace and constables, and for issuing township bonds for building bridges, and 'railroads, shall be at Bl,lqlt »Jace as shall be prescribed !for holding township elections." Comp; La.",s,JS7, .
:Thisseotion'wasamended in 1876 by th.eadditionof two provisos, and, ftllame.nded,took effect February 29,:1876. Nothing need be said as to these provjsos,; for it is conceded that defendant did not come within their scope.:, ' , Now, the contention of defendant is that, under this section, the sole power of Issuing railroad' bonds was in the township, and therefore that itS'issue of such bonds was without warrant oflaw; . This is a misconimport of· the section. It. does not: attempt to limit or qualify any of the powers given by other portions! M:theact to the city. It simply provides that the mere organization of the municipality into a city of the third class shall not withdraw it from the territorial limits of . the township, but it shall remain a part thereof for certain township purposes.
BARD·'/I.'CrrY OF AUGUSTA.
A consideration of other legislation will make this clear. The boundaries of counties are prescrilied by statute; All cities within the boundaries of a county remain parts of it for all county purposes. County taxes are charged upon their property. COunty officers exercise all their functions within their territory. Still the powers of the, cities are not affected by this territoria,1 and corporate inclusion within the county. Townships, on the other hand, are created, andtbeir boundaries prescribed tlIld .changed, by the board of county commissioners. Compo Laws, p. § 16. Tp.ey are complete muni9ipal corporations, the same as counties, and with like power of corporate action. Oomp. Laws, c.110.. ''By section 48 of that chapter, (Comp. Laws, 985;) no city of the fhst or seGond class iii! included within the corporate limits of ,any township, but constitutes itself an independent township. So, whenever a city grows in population so as to become a city of either of these classes, it thereby separates itself from the township within which it was theretofore included, and such township officers as reside outside the city limits cease to have any territorial jurisdiction within such limits. Borton v. Buck, 8 Ran. 302; These provisions make. plain the import of the section quoted, and show that its scope.is siniply. the retention of a city ofthe·third class.withinthe territorial limits of the township, fo), certain township purposes. The powers of the city, as a city, are not affected thereby. Now, turning to the othe.r sections of the act for tlre organizatiOn 'Of cities oitha third class, we find that they are endowed with the ordittary powers of a city, and, in addition, section 63 proyides that ,. tM'council shall taltiJ all needful steps to protect the of the city, present or prospective, in any ranroad leading from or towards the same; but theyshidl not take or subscribe any stock in any l'ailroad unless at least two-thirds of the electors of such city voting at a legal election vote in favor thereof." This authorizes the city to become interested in railroad enterprises, but prevents any investment theretn,except upon the assent of two-t)1irds Q1' the electors. It would be difficult, with this legislation alone, to deny the power of the defendant to issue these bonds. But beyond this, and to remove any doubt, is express authority found in chapter .107 of the LawB of 187'6, as amend.oo in 1877, (Comp. Laws, 792.)'Thi8, which is the lateBt expression of the legislative will, authorizesany county, a.ny toWnship, and any city,uporicertain conditions, to issue bonds for railroad ptirposes. This is the acf1'ecited in the bonds sued on, and is clear and unequivocal authority for their issue by defendant. . The denl.11rrer will besuswnoo.
(Oircuie: ,(Jourt. J). Kansas. 1887.}
LDlITATIOlf QII' ACTIONSTITLE.. ' ", ,
OF, S',l'ATUTE ,
ABSENCE FROM STATE -
The Kansas tax law, § 141, (Comp. Lavv-s, p. 967,) limiting the time for bring· ;recording of ing, an lloetion to defeat or ,,:void ,A tax sale to five years after the tax deed, except in C,ases where the tax has, been paid or the land reto be construed' in cotniectioh with Code Civil Proc. § 21, which deemed, if a person state vv-hen any cause of action ac· Jimitlld s1:l.a11 commence to run until he crues against him, the, comes into the state; andtbe running ,of the statute in favor of the holder of a tax titlelVill,besuspended during his' absence from the state. 1
,,' THere is but a single; question in this case, and that is whether section·1'41 of the tax law; (Comp.. Laws, 967) provides, within itself, a oompleteand absolute ]imitation, unaffected' by;any of the provisions ofllhe, .generallimitation·a:rticl!J of the Code of Civil Procedure, and especially section 21 of said article. Section 141 reads as follows: lluit\)1'proceeding again'sl;<,the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes,or to defeat or avoid a sale or conveye;x:cept in Where the taxes have been paid or the ance ofl1W4 l&nd redeemed as provided by law" ,shall be commenced within five years from the tlineof'recording the and not thereafter. " ,.,And 21' of the Code' of Prqcedure, so far 'as is material to this case, rel}ds' aEl follows: " when,a .;ause of action accrues against a person, hebe out of the state, for the commencement of an action sball,not begin to run the period '. until he comes,into the state." 1)oes this exception apply to section141. Article3 ofthe Code is devoted entirely, to the matter of limitations. Section 15 provides" that civilactions oply be commenced, within the periods prescribed in this /tfter the cause of acti<Hl shall have accrued; but where" in special differentlimitatiopjElprescribed by statute, the action sl1all be goveJ;Ued by such Then follow prefor actions. Besides, these, there' scribing are three or four sections making special exceptions to the general ation of the clauses; as, for instance, the' legal disability of the plaintiff, the absence or concealment of the defendant, or the failure of the first action. Now, it is contended by the defendant that this limitation section in the tax law is unaffected by these various exceptions in article 3. The
MQtion -for 'a New lrrial. 'N. Sterry, for plaintiff. Utley, &; ,Martin, for defendant.
lRespecting the suspension of the running of the al;.1tute of limitations by absence frolll the state. see Wood v. Bissell, (Ind.) 9 N. E. Rep. 425. and note. See, also, Engel v. Fischer, (N. Y.j 7 N. E. Rep. 300j Miller v. Lesser, (Iowa,) 32 N. W. Rep. 250.