
    Luther C. Challiss v. The City of Atchison et al.
    
    
      Tax — Injunction, When Granted. Before an injunction can be granted to restrain the levying or the collection of a taz, some step must be taken by the taxing officers toward the levying or collection of the same. (The case of Bridge Co. v. Comm’rs of Wyandotte Co., 10 Kas. 326, cited, and followed.)
    
      Error from Atchison District Court.
    
    The opinion states the facts. Judgment for the defendants was rendered on March 25,1886. The plaintiff Challiss brings the case here.
    
      L. F. Bird, for plaintiff in error.
    
      Wrn. B. Smith, city attorney, and Thos. J. White, for defendants in error.
   Opinion by

Simpson, C.:

“An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same.”

It is the levy, collection, or proceeding to enforce an illegal tax, charge, or assessment, that may be enjoined. The petition does not allege either a levy, collection, or proceeding to enforce, but does expressly aver such a state of facts that it necessarily follows that these are to happen in the future, if the regular order in such matters is to be followed. At the time of the filing of the petition, the city had made a contract with the defendant Taylor to construct sidewalks, and was about to issue bonds in payment thereof. These bonds are paid by an assessment on lots and pieces of ground abutting on the improvement, according to the front feet thereof. The petition was filed on the 30th day of November, 1885. The sidewalk contract was let to Taylor in September, 1885. The special assessments for improvements, such as sidewalks, are levied and collected as taxes, and must be certified by the city clerk to the county clerk, to be placed on the tax-roll, on or before the twenty-fifth day of August annually. Months would intervene between the issue of the sidewalk bonds and the levy of the special assessments for improvements, with which to pay them. In the meantime they are not declared by statute or city ordinance to be a lien on the lots or pieces of ground, and probably do not become so until after the levy; so that all the reasons enumerated by this court in the case of Bridge Co. v. Comm’rs of Wyandotte Co., 10 Kas. 326, why that action could not then be maintained until after a levy, apply with equal force in this case. As we regard it, this case falls within the foregoing case, and must therefore necessarily be controlled by it.

We recommend that the judgment of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.  