
    Milton Tootle v. I. O. Savage, as Treas., &c.
    1. School-District Bonds ; Taxes to Pay Interest, and for Sinking-Fund; Statute Bepealed. Section 5, of “an act to enable school districts in the state of Kansas to issue bonds,” approved 26th February 1866, published as ch. 19, laws of 1866, and published in the general statutes of 1868 as chapter 93, and amended and published in the laws of 1871 as section 1 of ch. 38, was repealed by section 6 of chapter 94 of the laws of 1872, page 173.
    2. ---- Amount of Levy, Not Bestrieted. In 1875, the county commissioners of a county were not so restricted in their power to levy taxes to pay interest on school-district bonds and to create a sinking-fund for the final redemption of such bonds, that they could levy only two per cent, of the taxable property in the district for such purposes.
    
      Error from, Republic District Court.
    
    Injunction, brought by Tootle agáinst Savage, as county treasurer. The commissioners of Republic county in 1875, “for the purpose of paying interest, and raising sinking-fund to pay principal of school bonds,” levied taxes upon the property of the respective school districts, as follows: in one district, 30 mills; in each of three districts, 35 mills; in one district 40 mills; in another district, 45 mills; in each of two other districts, 60 mills; in another district, 80 mills, and in another, 100 mills. Tootle owned lands lying in each of said districts, and he claimed that the county board was restricted to “two per cent.,” (20. mills,) for the purposes named, and that all in excess of that amount was void. He paid and tendered all other taxes; and when the county treasurer advertised his lands to be sold at tax-sale, for said school-district taxes, Tootle commenced this action, and moved for a temporary injunction. The judge of the district court, at chambers, on the 18th of August 1876, refused to grant the order, and from such refusal Tootle appeals, and brings the case here on error.
    
      Doniphan & Reed, for plaintiff in error.
   The opinion of the court was delivered by

Valentine, J.:

This was an action to restrain the collection of certain school-district taxes, levied by the county commissioners of Republic county for the year 1875. These taxes were levied for the purpose of paying interest on certain school-district bonds, and of creating a sinking-fund for their final redemption. These bonds were issued during the years 1871 and 18.72. In some of said districts said taxes amounted to more than two per cent, of the taxable property in said districts respectively. The only question now presented is, whether the county commissioners had the power to levy a tax for such purpose of more than two per cent, on the taxable property in said district for any one year. In 1866 an act of the legislature was passed authorizing school districts to issue bonds. (Laws of 1866, page 60, et seq.) Section 5 of that act authorized the levying of a tax to pay interest on said bonds, and to create a sinking-fund for their final redemption, but did not limit the amount of the tax. In 1867 sections 1 and 7 of the act of 1866 were amended, but the amendments do not affect this case. (Laws of 1867, pages 207, 208, 209.) The act of 1866, 'with amended sections 1 and 7, was published in the general statutes of 1868 as chapter 93, (Gen. Stat. 938 to 941.) Up to this time there was no restriction upon the amount of tax that might be levied for interest and sinking-fund on school-district bonds. But in 1871 section 5 of the act of 1866, and of chapter 93 of the general statutes, was so amended as to provide “that in no case shall the total amount of tax so levied, both to pay the interest on said bonds, and as a sinking-fund for the final redemption of said bonds, together, exceed two per cent, on the taxable property in the district.” (Laws of 1871, page 80.) In 1872 an act was passed “amendatory of and supplemental to chapter 93 of the general statutes relating to school-district bonds,” and also specially mentioning in the first section and amending “an act entitled an act to authorize school districts to issue bonds, approved February 26th, 1866.” Section 6 of this act of 1872, reads as follows:

“That sections four, five, and eight of the act to which this is amendatory and supplemental, be and the same are hereby repealed.” — (Laws of 1872, page T 73.)

Now the only section “five” of the act of 1866, and of chapter 93 of the general statutes, was said section five as amended in 1871, and as embodied in section 1 of the act of 1871. Said section 1 of the act of 1871, provides in these words:

“That section 5 of an act entitled an act to enable school districts in the state of Kansas to issue bonds, approved February 26th 1866, be and the same is hereby amended to read as follows: Section 5,” etc.

Here follows section five in full, taking the place of the original section five as published in the laws of 1866, and in the general statutes; and the original section five was, by virtue of this amendment, and of section 16 article 2 of the constitution, repealed. This section five, as amended in 1871, is the section that contains the restriction upon the power to levy a tax of more than two per cent., and also is by virtue of the act of 1871, and of said section 16 article 2 of the constitution, section five of the original act of 1866, and of chapter 93 of the general statutes of 1868. This section five as contained in section one of the act of 1871 was repealed by said section 6 of the act of 1872. This has already been so decided by this court; but the learned counsel for plaintiff in error have seemingly overlooked the decision. In the case of A. T. & S. F. Rld. Co. v. Williams, (16 Kas. 198, 199,) this court used the following language: “Section 5 of ‘an act to enable school districts in the state of Kansas to issue bonds/ approved February 26th 1866, (Gen. Stat. 940,) is section 1 of‘an act to amend an act to enable school districts in the state of Kansas to issue bonds/ approved February 27th, 1871, (Laws of 1871, page 80,) and is section 101 of the school laws of 1871, (Supt. McCarty’s edition, page 29;) and it was repealed February 29th, (March 21st), 1872, (Laws of 1872, page 173, §6.) Hence, said section 5, or section 1, or section 101, whichever it may be called, can have but little force or influence in the decision of this case.” Now as said section 5 of the act of 1866, or section 1 of the act of 1871, was repealed in 1872, there was no restriction left, limiting in 1875 the power of the county commissioners in levying said taxes, and therefore the judgment of the court below must be affirmed.

All the Justices concurring.  