INTERPRETATION OF 9. LEVEES (§ 34*)—ESTABLISHMENT-Bonds —
LIABILITY OF COUNTY.

levee; but it may be assessed for benefits to its
streets, consequent upon the construction of the
levee, and for benefits to its water mains, hy-state of Kansas:

drants, and electric light fixtures within the "Section 1. That whenever the board of drainage district.

or levees, to promote the public health, con- | phone companies. It was held that the televenience and welfare, and to prevent over- graph company act was not amended.

That the Legislature intended, by the act of 1909, to extend the provisions of the act of 1893 to cover the subject of levees in cities of the first class is too plain for argument. Otherwise the enactment of the 1909 statute would have been a perfectly idle piece of business. It was not essential that any particular formula of reference be employed. It is enough that such is the necessary inference from the general meaning of the act and the purpose of the Legislature in framing it. In such cases the grant is as clear as if studied

flow from any natural watercourse partly within and partly without or wholly within any city of the first class, under the provisions of chapter 104 of the Session Laws of 1893, as amended by chapter 216 of the Session Laws of 1905, the lands and property embraced within the boundaries of the territory described in the order of the board of county commissioners granting such petition shall be and constitute a drainage district, and with reference thereto the county commissioners shall have power in its discretion, instead of levying the entire special assess-expressions to effect it had been employed. ment therefor at one time, to provide for the payment of the same by installments, and issue improvement bonds therefor, payable in installments of equal amounts each year for such number of years as may be deemed advisible." Laws 1909, c. 80.

The remainder of the act is given to the details of the drainage district and bond scheme. Express power is granted to cross the right of way of any railroad or street railroad company with the levee, and the perpetual use of all land condemned is vested in the board of county commissioners for the purpose for which it is appropriated. None of the provisions of the previous statute is repealed, and that statute must be looked to as a guide in all particulars except those specified in the 1909 law.

Gilbert v. Craddock, 67 Kan. 346, 352, 72 Pac. 869. That the Legislature could make the provisions of the act of 1893 applicable to the subject of the act of 1909 by reference was settled in this state by the decisions in Wichita v. Telephone Co., 70 Kan. 441, 78 Pac. 886, and Griffin v. Gesner, 78 Kan. 669, 670, 97 Pac. 794. All of the provisions of the statute of 1893 are not applicable to the subject of the act of 1909, but wherever legislation by reference is permissible it is held that only those provisions of the extended act are incorporated into the new one which are appropriate to the new subject. 2 Lewis' Sutherland on Statutory Construction, § 405, p. 787; 26 A. & E. Encycl. of L. (2d Ed.) 714. The foregoing interpretation of the act of 1909 seems to be required because of the difficulty encountered when an effort is made to include city levees within the terms of the act of 1893. If, however, the legislative intention has been misapprehended, the act of 1909 must be taken as a legislative interpretation that the earlier law did apply to urban territory, and in that event the result is the

same.

As

Appellant argues that the law of 1893 applies to rural territory only; that, as a consequence, the law of 1909 cannot be supplemental, but must be amendatory legislation, and so violates section 16 of article 2 of the Constitution; and that the law of 1909 does not, independently, confer power upon commissioners to invade the city for the purpose of constructing a levee. The section of the Constitution referred to reads as follows: "No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed." Gen. St. 1909, § 134. It may be conceded that the statute of 1893 applied, when enacted, to rural territory only. This statute is not, however, amended by the law of 1909 in any particular. Every one of its provisions remains in full force for the accomplishment of every purpose for which it was originally designed. The act of 1909 merely extends, by virtue of its own terms, the provisions of the statute of 1893 to the construction of levees wholly or partially It is said that the board of county comwithin cities of the first class. The same ques- missioners acquired no jurisdiction to build tion arose in the case of Wichita v. Tele-a levee partly within the city because the pephone Co., 70 Kan. 441, 78 Pac. 886. The Legislature, by a reference statute, made the telegraph company act applicable to tele

It is a fundamental principle of constitutional law that the Legislature has power to indicate by a later act what its intention was in passing an earlier one. In such event whatever lawyer and layman may have understood or courts may have decided, the Legislature's interpretation is binding in all cases after it has been made manifest. suming the act of 1909 to be interpretative, every provision of the act of 1893 unqualifiedly stands with reference to township levees, and most of those provisions stand with reference to city levees. Indeed, nothing is repealed, but the application of the statute is merely restrained, by implication, to the extent of the new regulation respecting city levees. Only in this sense is the old law changed and amendments by implication are not obnoxious to the Constitution.

tition was circulated and largely signed before the law of 1909 took effect, and because it prayed for the construction of a levee un

was one challenging the validity of the crossing order made by the Board of Railroad Commissioners and to enjoin its enforcement, or the making of the crossing which the order purported to authorize. In such an action the board that made the order, as well as the railroad company which obtained it and proposed to make the crossing, may be sued together. U. T. R. Co. v. R. Com'rs, 52 Kan. 680, 35 Pac. 224. It is contended, however, that the order was made in a condemnation proceeding and that the only remedy of a railroad company dissatisfied with the order is an appeal under Gen. St. 1909, § 7192, and that when the order was made and no appeal was taken within 10 days the order became a finality, and thereafter the board had no further interest or power in the matter. It is insisted that no action against the board could be maintained, and therefore no summons could be sent to another county to be served on the Kiowa Company, and U. T. R. Co. v. R. Com'rs, 54 Kan. 352, 38 Pac. 290, is cited as a sustaining authority. In that case a crossing order made under chapter 184 of the Laws of 1887 was held to be in effect an order in a condemnation proceeding, and that the decision was to be treated as final, unless an appeal was taken within the prescribed time, and that, if no appeal was taken, the commissioners had no power thereafter to reopen and retry the question decided.

allowed for a right of way through the land | 445, 89 Pac. 905. The Board of Railroad and over the yards of the Santa Fé Com- Commissioners, however, was a necessary pany, and that a crossing through the yards and proper party in the action. The action of the latter company will, in addition to interfering with and impeding the company in its business, greatly imperil the lives and limbs of its employés as well as the passengers traveling over its line, and it is further averred that a crossing could be made not more than 1,000 feet away from the crossing proposed, where the injuries and perils mentioned would be avoided. It is further alleged that the Kiowa Company was proceeding to make the crossing without authority of law, and the plaintiff therefore asked that the order be set aside, and that defendants be enjoined from carrying out the order or from making the crossing through the yards of the Santa Fé Company. On application a temporary restraining order was issued restraining the defendant from proceeding further in the building of a crossing, until the further order of the court. Summons and notice of injunction was served on the defendants, after which the Kiowa Company moved to set aside the summons because of a lack of jurisdiction of the subject-matter, but this motion was overruled. Subsequently the Kiowa Company filed an answer setting forth a general denial and alleging that there was no joint interest in nor joint liability of the Kiowa Company and the Board of Railroad Commissioners, and that the causes of action alleged against them were improperly joined. The Board of Railroad Commissioners and its individual members also answered with a general denial, and further that there was no community of interest between the defendants, and that the plaintiff had no capacity to maintain the action in Shawnee county. An affidavit was filed stating that the Kiowa Company was proceeding to make the crossing in violation of the temporary restraining order, on which a writ of attachment was issued and served on the petitioner. An accusation was then filed setting forth an alleged violation of the restraining order on which a trial was had, which resulted in a finding that the petitioner was guilty of contempt of court and a judgment sentencing him to pay a fine of $100 and to be committed to the custody of the sheriff of Shawnee county, until the fine and the costs of the proceeding were paid.

The petitioner contends that in the first place the court had no jurisdiction or power to issue the injunction, and that therefore noncompliance with the order is not a punishable contempt. The basis of the claim is that the Kiowa Company is a nonresident defendant which could not be served in Shawnee county, and that while an action might be brought against the Board of Railroad Commissioners there was no right to summon the railroad company, unless there was a cause of action against it and the board, and unless both were properly joined as defendants -citing Marshall v. Land Company, 75 Kan.

In 1901 the law regulating railroads was revised and in the revision the section authorizing the board to order the making of railroad crossings was re-enacted substantially as in the statute of 1887, but in addition the Legislature enacted a provision that a railroad company dissatisfied with any order made by the Board of Railroad Commissioners might within 30 days thereafter bring an equitable action, such as the injunction proceeding in this case, to test the right of the board to make the order and to enjoin its enforcement, if it was found to be unreasonable, unjust, oppressive, or illegal. Laws 1901, c. 286, § 39; Gen. St. 1909, § 7228. This added remedy was given after the case of U. T. R. Co. v. R. Com'rs, 54 Kan. 352, 38 Pac. 290, to which counsel refer, was decided. It gives a dissatisfied railway company a right to go into court and test the legality and justice of every order made against it, and clearly embraces orders made respecting crossings. The statute therefore gives not only the remedy of appeal, but also the right to challenge the order in a direct equitable proceeding, in which not only the amount of the award and the questions involved in an appeal, but all other questions of an equitable character may be tried and determined. The proceeding in which the order in question was made fairly comes within this provision. Even as the law stood be

fore the statute of 1901 was enacted a party | left open in order that the convenience of the was entitled to bring a proceeding and enjoin defendants, who were not present, might be the making of a crossing, where the commissioners acted without authority, or where the decision was fraudulently obtained. U. T. R. Co. v. R. Com'rs, 54 Kan. 352, 38 Pac. 290. But under the later statute and the new remedy provided the courts may inquire into the reasonableness and justice of the order, as well as its validity.

consulted. In every other respect the court
indicated that it was granting a mere tem-
porary restraining order. The fact that it
was granted ex parte and without notice in-
dicated to some extent the purpose of the
court, and the further fact that no bond was
required showed the view which the court
took of it. In the order itself the court in
plain terms called it a temporary restraining
order, and we think it should be so treated in
this collateral attack. The order, although
it may have been erroneously granted, should
have been obeyed by the defendants until it
was set aside in a direct proceeding.
It follows that the petitioner must be re-
manded. All the Justices concurring.

(83 Kan. 1)

Apart from this consideration the district court has jurisdiction of the subject of injunction, and determined upon a challenge of misjoinder that the Board of Railroad Commissioners and the Kiowa Company were properly joined as defendants, and the action rightly brought against both parties. If the decision was wrong it was one to be corrected on error, and not in a habeas corpus proceeding. In Ayres v. Deering, 76 Kan. 149, 90 Pac. 794, it was contended that a judgment was open to collateral attack because an action against a nonresident defendant could not be properly joined with that against a resident defendant, the defect being apparent on the face of the petition, and it was said: "The petition was sufficient to 1. ABATEMENT AND REVIVAL (§ 69*)-DEATH bring up for decision the question whether there was a misjoinder. True, it showed upon its face that in a correct view of the law the two causes of action could not properly be united, and therefore that a summons could not lawfully be served upon Jackson in another county; but whether the misjoinder was rightful was one of the very matters to be determined. The fact that the record

showed that it was wrongly decided does not render the resulting judgment open to collateral attack. See, also, National Bank v. Town Co., 51 Kan. 215, 32 Pac. 902; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.

POWERS v. SUMBLER. (Supreme Court of Kansas. July 9, 1910.) (Syllabus by the Court.)

OF PLAINTIFF.

Under section 421 of the old Code Civ. Proc. (section 418, Code Civ. Proc. 1909 [Gen. St. 1909, § 6013]), providing that no action pending in any court shall abate by the death of either or both of the parties thereto, except certain actions therein named, an action by a wife for the alienation of her husband's affections does not abate by her death, while the action is pending in the Supreme Court.

[Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. §§ 349-354; Dec. Dig. §

69.*]

2. DISCOVERY (§ 96*)—UNDER STATUTORY PRO

VISIONS-INSPECTION OF WRITINGS - FAIL-
URE TO COMPLY WITH DEMAND.

Where the defendant, proceeding_under section 369 of the old Code Civ. Proc. (section 366, Code Civ. Proc. 1909 [Gen. St. 1909, § 5961]), demands of the plaintiff an inspection and permission to make copies of certain letters which the plaintiff intends to offer in evidence at the trial, no order of the court is necessary, requiring the plaintiff to comply with such demand; and where the demand is not complied with, no error is committed in sustaining an objection to the admission in evidence of the original of which a copy has been

refused.

Dec. Dig. § 96.*]
[Ed. Note. For other cases, see Discovery.

3. HUSBAND AND WIFE (§ 325*)—ALIENATION
OF HUSBAND'S AFFECTIONS-RIGHT OF AC-

There is a contention that the order violated was a temporary injunction rather than a temporary restraining order, and as no bond was required or given the order never became operative. It was a temporary restraining order which was asked for, and the district court treated and designated the order granted as a temporary restraining order. The only basis for calling the restraining order a temporary injunction was that no time was fixed to hear the application for a temporary injunction, but this fact alone does not determine the character of the order. The purpose of a temporary restraining order is to suspend operations until the propriety of granting an injunction can be heard, and, of course, it should only be continued for a brief time. Ordinarily the order granting it limits its operation by providing that it shall only continue until a certain day, when a hearing for a temporary injunction shall be had. Instead of fixing a particular day in this instance the court temporarily restrained the parties, until the further order of the court. The time for a hearing may have been For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

TION.

In an action by the wife against a stranger to recover damages for the alienation of the affections of her husband, the court correctly it was necessary to show that it was the efforts charged that in order for the plaintiff to recover of the defendant which were the controlling cause that destroyed the affection which the plaintiff's husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally, for the purpose of alienating the husband's affections. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1119; Dec. Dig. § 325.*]