missioners by the probate judge, and then provides that "it shall be the duty of such commissioners to cause an actual survey of such site to be made, conforming as near as may be to the original survey of such town, designating on such plat the lots or squares on which improvements are standing, with the name of the owner or owners thereof, together with the value of the same." Section 5 provides that the commissioners shall, as soon as the survey and plat is completed, give a notice thereof to all persons interested in the town-site, that, on a day stated, they will proceed to set off the lots, squares, or grounds to each occupant in accordance with their respective interests. Section 6 provides for the setting apart of the lots, squares, or grounds to the persons entitled to receive the same, in pursuance of the notice given in section 5. Section 7 provides that "after the setting apart of such lots or grounds, and the valuation of the same, as herein before provided for, the said commissioners shall proceed to levy a tax on the lots and improvements thereon according to their value, sufficient to raise a fund to reimburse to the parties who may have entered such site the sum or sums paid by them in securing the title to such site, together with all expenses accruing in perfecting the same, the fees due the commissioners and the surveyor for their respective services, and other necessary expenses connected with the proceedings." Section 9 provides as follows: "The said probate judge shall then proceed to collect the taxes levied as aforesaid, and he shall make deeds to the lots so set apart, to the various parties entitled to the same; but no deeds shall be made to any person until such person shall have first fully paid all the tax or assessment so levied against him; and in case any person shall refuse or neglect to pay such tax or assessment so made against him, the probate judge may proceed to offer such lots and improvements for sale, to the highest bidder, first giving such public notice as may be required in case of execution against the lands and tenements of a debtor in the district court." The provisions of this statute relating to the levy and collection of taxes should be strictly followed and executed. Counsel for plaintiff contends that the taxes levied thereunder are not taxes, and that the rules respecting the levy and collection of taxes should not be applied to this case, or employed in interpreting the provisions relating to taxes in the town-site act. We think that they are not only taxes. in name but in nature. The assessment and levy of the tax is made by officers appointed by authority of law. The tax is required to be levied upon the lots and improvements in accordance with their value. The purpose of the tax is a public one, as the fund provided thereby is for the benefit of every person within the district taxed; that is, every occupant of the town-site. The tax thus levied against each parcel of land is chargeable alone to such parcel, and a failure of the party interested to pay the tax, subjects the parcel to a sale to the highest bidder for the amount levied against it. It will thus be seen that the charge here provided for has all the elements of, and constitutes what is ordinarily and popularly understood as, taxes. As has been seen, the basis of the levy and the method of securing equality of the burden of this tax upon the people within the town-site, is by the valuation of the lots as well as the improvements thereon. Herein the commissioners appointed in this case failed. By the plaintiff's proof it appears that an arbitrary estimate was placed upon the lots without regard to location or actual value, and no appraisement was made of the improvements that had been placed upon the lots. The commissioners then levied a uniform tax of three dollars upon each lot, regardless of its real value, or the value of the improvements thereon. This was certainly a wide departure from the statutory requirement which is prescribed for the benefit of the tax-payer, and to insure equality of taxation. We are of the opinion that the rule of the statute apportioning the tax, and fixing the basis of its levy upon the valuation of the lots and the improvements thereon, is an essential requirement, a disregard of which is fatal to the proceedings. Cooley, Tax'n, 324; State v. Jersey City, 35 N. J. Law, 386; Clark v. Crane, 5 Mich. 151; Hewes v. Reis, 40 Cal. 255; Davis v. Farnes, 26 Tex. 296; Brown v. Veazie, 25 Me. 359. It appears, too, that the defendant tendered to the probate judge in good time the amount of the tax levied against the lots in question. The tender was refused, because it was insufficient in amount to pay the taxes upon all the lots set apart to her. In this the probate judge was wrong. As has been stated heretofore, it is not a personal or per capita tax. The levy is made upon the lots, together with improvements thereon. There is, or should be, a specific charge against each parcel, and the owner is entitled to the privilege of paying off and discharging the tax upon any or all of his lots as he may choose, and no lot or parcel can be sold for any tax except that which has been specifically levied against it. These conclusions necessarily lead us to hold the plaintiff's tax deed to be invalid, and it is therefore needless to discuss or decide upon the other grounds of invalidity asserted against the deed by the defendants. There was no error in sustaining the demurrer interposed by the defendants to plaintiff's evidence, and the judgment of the district court will therefore be affirmed. (All the justices concurring.) (33 Kan. 433) BIRDZELL v. BIRDZELL, by her Guardian. Filed April 10, 1885. DIVORCE-ALIMONY-ACTION BY GUARDIAN OF INSANE WIFE. The guardian of an insane woman cannot bring and maintain an action against her husband for divorce and alimony, or for alimony alone. Error from Sedgwick county. E. Hill and Rossington & Smith, for plaintiff in error. VALENTINE, J. This was an action brought by John Tucker, in the name of "Margaret Birdzell, by John Tucker, her guardian," against Caleb J. Birdzell, to obtain a divorce on the part of Margaret Birdzell, an insane woman, from her husband, Caleb J. Birdzell, and for alimony. The case was tried before the court without a jury, and the court refused to grant the divorce, for the reason that it deemed itself powerless to grant a divorce to an insane person, but granted the alimony for the gross amount of $5,000, and decreed that the same should be a lien upon the homestead of the plaintiff and the defendant. The court also decreed that the homestead should be sold to satisfy the judgment for alimony, and that a general execution might afterwards be issued against the property generally of the defendant to satisfy any remainder that might still be due upon the judgment; and decreed that said allowance of $5,000 should be in full of all claims that might ever be made by the plaintiff upon the defendant, or upon his estate. After this judgment was rendered, and after a motion for a new trial was made and overruled, the defendant, as plaintiff in error, brought the case to this court; and he now asks for a reversal of such judgment. Several questions are presented to this court, but we think a decision of the first and principal question in the case will render it unnecessary to consider or decide any of the other questions raised. Such first and principal question is whether an action for divorce and alimony, or for alimony alone, can be brought and maintained by the guardian of an insane woman. It seems to be almost admitted by counsel for the defendant in error (plaintiff below) that the action for divorce cannot be maintained; but such counsel still insists that an action for alimony can be maintained. It seems, however, clear to us that both actions must be placed in the same category. We shall consider the question with reference to divorce first. Marriage is a personal status and relation assumed for the joint lives of the parties, and can never be created or brought into existence except with the free and voluntary consent of the parties assuming the same, and it can never be dissolved or destroyed, while both parties are living, so as to affect an innocent party thereto, except for a grievous and essential wrong committed against such relation by the v.6p,no.9-36 other party, and with the free and voluntary consent, and, indeed, with the active and affirmative volition, of the wronged and innocent party. In other words, the marriage status and relation of an insane person, who has given no cause for a divorce, cannot be dissolved or abrogated at all; for it cannot be dissolved or abrogated except with the voluntary consent of such insane person, and such insane person is incapable of giving any consent to such a dissolution or abrogation. How could a guardian conduct the mind of his insane ward through the ceremony that would make him or her a husband or wife, or how could he conduct such mind through a litigation that would undo the marriage relation? Marriage might be ever so beneficial to the ward, financially or otherwise, but as it depends upon the intelligent volition of the party to be married, the guardian could not effect it; or if it existed, he could not inaugurate and conduct a proceeding that would destroy it. There are no wrongs that may be committed by a husband or wife sufficient in and of themselves to work a dissolution of the marital ties. The injured party may be willing to condone the wrong, or, for reasons satisfactory to himself or herself, may desire to continue the marriage relation, notwithstanding the wrong. In the present case, some of the wrongs charged against the defendant existed prior to the insanity of the plaintiff. Can the guardian say that she did not condone them? Many persons believe that marriage is a sacrament, and that to procure a divorce upon any of the ordinary grounds for which divorces are usually granted, is a violation of all true religion and morality. Should such a person be divorced, though innocent himself or herself, without his or her consent? could a guardian for such a person, if he or she should become insane, give the necessary and required consent? Besides, insanity is often temporary; and what if such insane person should become restored to sanity immediately after the divorce, and should disapprove the divorce and all the proceedings connected therewith? Whether a party who is entitled to a divorce shall commence proceedings to procure the same or not is a personal matter resting solely with the injured party, and it requires an intelligent election on the part of such party to commence the proceedings, and such an election cannot be had from an insane person. As sustaining the foregoing views, we would refer to the following authorities: Worthy v. Worthy, 36 Ga. 45; Bradford v. Abend, 89 Ill. 78; 2 Bish. Mar. & Div. § 306a. Also, section 641 of the Civil Code provides that "the petition (for a divorce) must be verified as true by the affidavit of the plaintiff." An agent or attorney or guardian is not mentioned. See Baker v. Knickerbocker, 25 Kan. 290. Also, both parties are allowed to testify in divorce cases. Laws 1871, c. 116, § 6; Comp. Laws 1879, c. 80, § 651a. We now come to the question of alimony. May the guardian of an insane wife commence and maintain an action against the husband for alimony? There is no statute in this state that in terms author izes any such thing, and we think the implications of the statutes are all against it. Alimony may be allowed as an incident to a divorce, or it may be allowed in a separate action and without a divorce. What we have already said in this opinion with reference to divorce. will dispose of the question as to whether the alimony may be granted as an incident thereto. We shall now proceed to consider the question whether it may be granted without a divorce. The statute providing for alimony without a divorce reads as follows: "Sec. 649. The wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district court, for any of the causes for which a divorce may be granted. The husband may have the same defense to such action as he might to an action for a divorce, and may, for sufficient cause, obtain a divorce from the wife in such action." Civil Code, § 649. It will be seen that alimony without a divorce may be obtained only for the same causes for which a divorce may be obtained. Now, we have just held that an insane woman cannot obtain a divorce, for the reason that she cannot exercise her choice or election to do so, and that her guardian cannot do so for her. The statute also provides that "the husband may make the same defense to such action as he might to an action for a divorce;" and we have just held that the husband may, where the wife is insane, defeat the action for divorce. The statute also provides that the husband "may, for sufficient cause, obtain a divorce from the wife in such action." Now, can a husband obtain a divorce from an insane wife? Can a guardian defend for her? She has a right to testify in a divorce case. Could her guardian supply this testimony? A part of the grounds for divorce and alimony in the present case existed before the plaintiff became insane. Can the guardian say that she did not condone the wrongs upon which these grounds rest? In this state there is no such thing as a divorce a mensa et thoro, or merely from bed and board. The plaintiff and defendant are still husband and wife, absolutely and entirely. She will inherit from him or he from her at least one-half of the other's estate, notwithstanding the judgment of the court below; and the husband is still liable for her support. And there are better remedies to enforce this support than the strange one resorted to in the present case. There are all the common-law remedies. And there are the still further remedies furnished by sections 13, 43, 44, 45, and 46 of chapter 60 of the General Statutes. Comp. Laws 1879, c. 60, §§ 13, 43-46. Besides, could the homestead be sold without "the joint consent of the husband and wife?" Const. art. 15, § 9. The husband has not consented, and when the wife is restored. to sanity, as she may be, she may claim that she has never consented, and of course she has not consented. After a careful consideration of this case, we have come to the conclusion that the guardian of an insane woman cannot maintain an action against her husband for alimony. The judgment of the court |