Page images
PDF
EPUB
[ocr errors]

2. STATUTES ($ 220*) INTERPRETATION OF 9. LEVEES (8 34*)-- ESTABLISHMENT-BONDS FORMER ACT.

LIABILITY OF COUNTY. The Legislature has the power, under the The county is the party primarily liable Constitution, to declare by a later act the mean for levee bonds issued under chapter 80 of the ing and intention of an earlier one, and in such act of 1909, the property in the drainage disevent the legislative interpretation is binding trict being charged with their payment. in all cases arising after it has been made man [Ed. Note.-For other cases, see Levees, Cent. ifest.

Dig. § 19; Dec. Dig. § 34.*] (Ed. Note.-For other cases, see Statutes, Cent. Dig. § 298; Dec. Dig. § 220.*)

(Additional Syllabus by Editorial Staff.) 3. STATUTES (8 131*)-AMENDMENT-APPLICA- | 10. LEVEES ($ 23*)-PROPERTY LIABLE TO As

TION OF CONSTITUTION—"AMENDATORY STAT SESSMENT—"PRIVATE PROPERTY”—“PROPERUTES.

TY"_''OTHER PROPERTY LIABLE TO ASSESSReference statutes and interpretative stat

MENT." utes are not amendatory within the meaning of The water, hydrants, and electric light fixsection 16 of article 2 of the Constitution. tures of the city are "private property” owned

[Ed. Note.-For other cases, see Statutes, by it in its corporate capacity. They have a Cent. Dig. § 199; Dec. Dig. § 131.*

permanent situs within the drainage district For other definitions, see Words and Phrases, liable to assessment" within the meaning of

and constitute "property” and “other property vol. 1, p. 370.]

chapter 80, Laws 1909. 4. STATUTES (8 51*)-EXTENSION BY REFER

[Ed. Note.-For other cases, see vees, Cent. ENCE. When the provisions of a statute are ex

Dig. $ 23; Dec. Dig. § 23.* tended by reference, it is not necessary that

For other definitions, see Words and Phrases, any particular formula of reference be employ- vol. 6, pp. 5577; 5578; vol. 8, p. 7764 ; vol. ed. If the necessary inference from the gen- | 6, pp. 5693-5728; vol. 8, pp. 7768–7770.) eral meaning of the new act and the purpose of the Legislature in framing it be that the former Appeal from District Court, Shawnee Counstatute shall govern the new subject, the ex- ty; A. W. Dana, Judge. tension is as clear as if studied expressions to effect it had been used.

Action by the State against the Board of [Ed. Note.-For other cases, see Statutes, County Commissioners of Shawnee County. Cent. Dig. $ 48; Dec. Dig. § 51.*]

Judgment for defendant, and plaintiff ap5. STATUTES (8 51*)—EXTENSION BY REFER- peals. Affirmed. ENCE-EFFECT.

In cases of legislation by reference those F. S. Jackson, Atty. Gen., Chas. F. Spencer, provisions only of the extended act are incorpo- | W. C. Ralston, and Hazen & Gaw, for the rated in the new one which are appropriate to state. Ed. A. Austin, Ferry & Doran, and the new subject.

C. A. Magaw, for appellee. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 48; Dec. Dig. § 51.*] 6. LEVEES (§ 2*)-ESTABLISHMENT-CONSTRUC BURCH, J. The board of county commisTION OF STATUTE.

sioners of Shawnee county undertook to conChapter 80 of the Laws of 1909 indicates that the provisions of chapter 104 of the Laws struct a levee along the south bank of the of 1893 as amended by chapter 216 of the Laws Kansas river, partly within and partly withof 1895, relating to the construction and main- out the city of Topeka. The state brought an tenance of levees, shall apply to the construc: action to enjoin the proceeding, and appeals tion of levees partly within and partly without cities of the first class, and does not violate from an order of the district court denying the section of the Constitution referred to. an injunction. The principal subject of con

[Ed. Note.-For other cases, see Levees, Cent. troversy is the statutory power of the county Dig. § 2, Dec. Dig. § 2.*]

board. 7. LEVEES ($ 2*)- ESTABLISHMENT_JURISDIC In 1893 the Legislature passed an act enTION.

A petition to the board of county commis- titled “An act to provide for the construction sioners of Shawnee county praying for the con- and maintenance of levees" vesting power in struction of a levee within the city of Topeka the county board to carry out the purpose of under the provisions of chapter 104 of the act the statute. of 1893, was circulated and signed before chap. certain particulars by chapter 216 of the

This statute was amended in ter 80 of the act of 1909 was passed. It was presented after the act of 1909 took effect. Laws of 1905. In 1909 the Legislature reHeld, the petition conferred jurisdiction upon turned to the subject in an act, the title and the county board to construct the levee.

a portion of the first section of which read as [Ed. Note.-For other cases, see Levees, Cent.

follows: Dig. & 2; Dec. Dig. § 2.*] 8. EMINENT DOMAIN ($ 85*)---LEVEES ($ 23*)— "An act relating to the construction of levees PROCEEDINGS TO ESTABLISII APPROPRIA

through cities of the first class, supple TION OF STREETS-DAMAGES. In levee proceedings under chapter 80 of

mental to chapter 104, Session Laws 1893, the acts of 1909 a city is not entitled to dam as amended by chapter 216, Session Laws ages for the appropriation of its streets for the 1905. levee; but it may be assessed for benefits to its streets, consequent upon the construction of the

"Be it enacted by the Legislature of the leree, 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.

(Ed. Note.-For other cases, see Eminent Do-county commissioners of any county in this main, Cent. Dig: 88 221-226; Dec. Dig. $ 85;* state shall hereafter make any order grantLevees, Cent. Dig. 23; Dec. Dig. $ 23.*] ing a petition for the construction of a levee

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. flow from any natural watercourse partly That the Legislature intended, by the act within and partly without or wholly within of 1909, to extend the provisions of the act any city of the first class, under the provi- of 1893 to cover the subject of levees in cities sions of chapter 104 of the Session Laws of of the first class is too plain for argument. 1893, as amended by chapter 216 of the Ses- Otherwise the enactment of the 1909 statute sion Laws of 1905, the lands and property would have been a perfectly idle piece of embraced within the boundaries of the terri- business. It was not essential that any partory described in the order of the board of ticular formula of reference be employed. It county commissioners granting such petition is enough that such is the necessary inference shall be and constitute a drainage district, from the general meaning of the act and the and with reference thereto the county com- purpose of the Legislature in framing it. In missioners shall have power in its discretion, such cases the grant is as clear as if studied instead of levying the entire special assess expressions to effect it had been employed. ment therefor at one time, to provide for the Gilbert v. Craddock, 67 Kan. 346, 352, 72 Pac. payment of the same by installments, and 869. That the Legislature could make the issue improvement bonds therefor, payable in provisions of the act of 1893 applicable to the installments of equal amounts each year for subject of the act of 1909 by reference was such number of years as may be deemed ad- settled in this state by the decisions in Wichvisible." Laws 1909, c. 80.

ita v. Telephone Co., 70 Kan. 441, 78 Pac.

886, and Griffin v. Gesner, 78 Kan. 669, 670, The remainder of the act is given to the 97 Pac. 794. All of the provisions of the statdetails of the drainage district and bond ute of 1893 are not applicable to the subject scheme. Express power is granted to cross of the act of 1909, but wherever legislation the right of way of any railroad or street by reference is permissible it is held that railroad company with the levee, and the only those provisions of the extended act are perpetual use of all land condemned is vested incorporated into the new one which are apin the board of county commissioners for the propriate to the new subject. 2 Lewis' Suthpurpose for which it is appropriated. None

erland on Statutory Construction, $ 405, p. of the provisions of the previous statute is 787; 26 A. & E. Encycl. of L. (20 Ed.) 714. repealed, and that statute must be looked to The foregoing interpretation of the act of as a guide in all particulars except those 1909 seems to be required because of the difspecified in the 1909 law.

ficulty encountered when an effort is made Appellant argues that the law of 1893 ap- to include city levees within the terms of the plies to rural territory only; that, as a con- act of 1893. If, however, the legislative insequence, the law of 1909 cannot be supple- tention has been misapprehended, the act of mental, but must be amendatory legislation, 1909 must be taken as a legislative interpreand so violates section 16 of article 2 of the tation that the earlier law did apply to urban Constitution; and that the law of 1909 does territory, and in that event the result is the not, independently, confer power upon commissioners to invade the city for the purpose It is a fundamental principle of constituof constructing a levee. The section of the tional law that the Legislature has power to Constitution referred to reads as follows: indicate by a later act what its intention was “No bill shall contain more than one subject, in passing an earlier one. In such event which shall be clearly expressed in its title, whatever lawyer and layman may have unand no law shall be revived or amended understood or courts may have decided, the Leg. less the new act contain the entire act re- islature's interpretation is binding in all vived or the section or sections amended, and cases after it has been made manifest. Asthe section or sections so amended shall be suming the act of 1909 to be interpretative, repealed." Gen. St. 1909, & 134. It may be every provision of the act of 1893 unqualiconceded that the statute of 1893 applied, fiedly stands with reference to township lev. when enacted, to rural territory only. This ees, and most of those provisions stand with statute is not, however, amended by the law reference to city levees. Indeed, nothing is of 1909 in any particular. Every one of its repealed, but the application of the statute provisions remains in full force for the ac- is merely restrained, by implication, to the complishment of every purpose for which it extent of the new regulation respecting city was originally designed. The act of 1909 levees. Only in this sense is the old law merely extends, by virtue of its own terms, changed and amendments by implication are the provisions of the statute of 1893 to the not obnoxious to the Constitution. 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 tition was circulated and largely signed beLegislature, by a reference statute, made the fore the law of 1909 took effect, and because telegraph company act applicable to tele it prayed for the construction of a leree un

same.

der the provisions of the law of 1893. The

(83 Kan. 205) petition invoked the exercise of the very ju

Ex parte LUTTGERDEN. risdiction in question. It prayed for a levee (Supreme Court of Kansas. July 9, 1910.) partly within the city. The prayer speaks from the time the petition was presented. At

(Syllabus by the Court.) that time the law of 1909 had gone into effect. 1. RAILROADS ($9*)—ORDERS OF RAILROAD

COMMISSIONERS REASONABLENESS DEIt will not be presumed that the petitioners

TERMINATION BY INJUNCTION. were appealing to a nonexistent power. It A railroad company is entitled to maintain makes no difference whether authority to con an action of injunction to determine the legalistruct a levee partly within the city was by the Board of Railroad Commissioners au.

ty, justice, and reasonableness of an order made conferred by the law of 1893 or by the law tħorizing another railroad company to build its of 1909, which adopted the law of 1893. That line across the track and switchyards of the power was the very one which the petition former company, and in such action the Board asked to be exercised.

of Railroad Commissioners and the railroad

company proposing to build the crossing may It is said that the streets of the city of be properly joined as defendants. Topeka cannot be taken by levee, proceedings, [Ed. Note.-For other cases, see Railroads, that no damages are allowed the city for Dec. Dig. $ 9.*] streets taken, that benefits to streets from the 2. JUDGMENT (8 502*)COLLATERAL ATTACK. levee are assessed to the city, that no method

The decision that a resident defendant was for collecting such assessment is provided, rightly joined with a nonresident defendant,

summoned in another county, may be reviewed and consequently that the proceedings at- in a proceeding in error, but the decision of the tacked are unlawful. The city of Topeka and question by a court having jurisdiction of the its streets are wholly subject to the control subject matter of the action is not open to col

lateral attack. of the Legislature. The Legislature has ap

(Ed. Note. For other cases, see Judgment, pointed the board of county commissioners to Cent. Dig. & 942; Dec. Dig. § 502.*] decide whether a levee partly within a city 3. HABEAS CORPUS (8 92*) – SCOPE OF INis necessary to prevent inundation from over

QUIRY. flowing rivers, and to promote the public Where the district court designates and health, convenience, and welfare. If the de- treats an injunctional order issued by it as a cision be that such a levee is necessary, and temporary restraining order, the Supreme Court,

in which a habeas corpus proceeding is brought that it must occupy a portion of a city street, to release the defendant from imprisonment imone public use yields to the other. A city is posed for riolating the order, will also treat it not the owner of its streets in any private as a temporary restraining order, although such proprietary sense, but is merely the agent of order recites that it is to continue in force until

the further order of the court. the state respecting them for the promotion

[Ed. Note.--For other cases, see Habeas Cor. of certain public purposes. Consequently the pus, Dec. Dig. & 92.*] appropriation of its streets gives the city no right to damages, under the statute, as an

Petition by one Luttgerden for a writ of owner of a division of the land taken. The habeas corpus. Petitioner remanded. statute, however, does provide that benefits E. N. Smith and H. A. Noah, for petitioner. shall be assessed to highways; and city Wm. R. Smith and 0. J. Wood, for respondstreets are highways. It may be assumed ent. that the city will discharge its lawful obligations. If it does not the common-law reme JOHNSTON, C. J. The petitioner asks for dies are available. Com’rs of Franklin Co. v. release from imprisonment imposed under an Ottawa, 49 Kan. 747, 756, 31 Pac. 788, 33 Am. order of the district court of Shawnee counSt. Rep. 396.

ty made in a contempt proceeding. In an acThe water mains, hydrants and electric tion brought by the Atchison, Topeka & Sanlight fixtures of the city are private property ta Fé Railway Company against the Board owned by it in its corporate capacity. They of Railroad Commissioners and the Kiowa, have a permanent situs within the drainage Hardtner & Pacific Railroad Company it was district and constitute "property” and “other alleged that the Kiowa Company had obtainproperty liable to assessment” within the ed an order of the Board of Railroad Commeaning of the act. There is no constitu- missioners authorizing it to build its line of tional or other impediment to the assessment railroad across the tracks and yards of the of such property for benefits conferred by an Santa Fé Company at Kiowa, Kan., and had improvement of the kind in question. Page required the Santa Fé Company to install a & Jones, Taxation by Assessment, $ 548, p. standard, mechanical interlocking plant, the 876. The county is the party primarily liable expense of the same to be charged to the upon the bonds provided for, the property in Kiowa Company. The order, it was alleged, the drainage district being charged with their was unlawful, oppressive, fraudulent, and payment.

void because the Kiowa Company did not ask Other objections to the proceedings sought to cross the switchyards of the Santa Fe to be enjoined are untenable, and the judg- Company, and because it was practicable to ment of the district court is affirmed. All the cross outside of the yards as the statute re Justices concurring.

quires. Further, that no compensation was

allowed for a right of way through the land | 445, 89 Pac. 903. 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 in- was one challenging the validity of the crossterfering with and impeding the company in ing order made by the Board of Railroad its business, greatly imperil the lives and Commissioners and to enjoin its enforcement, limbs of its employés as well as the passen- or the making of the crossing which the orgers traveling over its line, and it is further der purported to authorize. In such an aca verred that a crossing could be made nottion the board that made the order, as well more than 1,000 feet away from the crossing as the railroad company which obtained it proposed, where the injuries and perils men- and proposed to make the crossing, may be tioned would be avoided. It is further al- sued together. U. T. R. Co. v. R. Com'rs, 52 leged that the Kiowa Company was proceed- Kan. 680, 35 Pac. 224. It is contended, howing to make the crossing without authority ever, that the order was made in a condemof law, and the plaintiff therefore asked that nation proceeding and that the only remedy the order be set aside, and that defendants of a railroad company dissatisfied with the be enjoined from carrying out the order or order is an appeal under Gen. St. 1909, $ from making the crossing through the yards 7192, and that when the order was made and of the Santa Fé Company. On application a no appeal was taken within 10 days the ortemporary restraining order was issued re- der became a finality, and thereafter the straining the defendant from proceeding fur- board had no further interest or power in the ther in the building of a crossing, until the matter. It is insisted that no action against further order of the court. Summons and the board could be maintained, and therefore notice of injunction was served on the de- no summons could be sent to another county fendants, after which the Kiowa Company to be served on the Kiowa Company, and U. moved to set aside the summons because of T. R. Co. v. R. Com’rs, 54 Kan. 352, 38 Pac. a lack of jurisdiction of the subject-matter, 290, is cited as a sustaining authority. In but this motion was overruled. Subsequently that case a crossing order made under chapthe Kiowa Company filed an answer setting ter 184 of the Laws of 1887 was held to be forth a general denial and alleging that there in effect an order in a condemnation proceedwas no joint interest in nor joint liability ing, and that the decision was to be treated of the Kiowa Company and the Board of as final, unless an appeal was taken within Railroad Commissioners, and that the causes the prescribed time, and that, if no appeal of action alleged against them were improp- was taken, the commissioners had no power erly joined. The Board of Railroad Commis- thereafter to reopen and retry the question sioners and its individual members also an- decided. swered with a general denial, and further In 1901 the law regulating railroads was that there was no community of interest be- revised and in the revision the section autween the defendants, and that the plaintiff thorizing the board to order the making of had no capacity to maintain the action in railroad crossings was re-enacted substanShawnee county. An affidavit was filed stat- tially as in the statute of 1887, but in addiing that the Kiowa Company was proceeding tion the Legislature enacted a provision that to make the crossing in violation of the tem- a railroad company dissatisfied with any orporary restraining order, on which a writ of der made by the Board of Railroad Commisattachment was issued and served on the pe sioners might within 30 days thereafter bring titioner. An accusation was then filed setting an equitable action, such as the injunction forth an alleged violation of the restraining proceeding in this case, to test the right of order on which a trial was had, which re- the board to make the order and to enjoin sulted in a finding that the petitioner was its enforcement, if it was found to be unguilty of contempt of court and a judgment reasonable, unjust, oppressive, or illegal. sentencing him to pay a fine of $100 and to Laws 1901, c. 286, § 39; Gen. St. 1909, 8 be committed to the custody of the sheriff 7228. This added remedy was given after of Shawnee county, until the fine and the the case of U. T. R. Co. v. R. Com'rs, 54 costs of the proceeding were paid.

Kan. 352, 38 Pac. 290, to which counsel refer, The petitioner contends that in the first was decided. It gives a dissatisfied railway place the court had no jurisdiction or power company a right to go into court and test to issue the injunction, and that therefore the legality and justice of every order made noncompliance with the order is not a punish- against it, and clearly embraces orders made able contempt. The basis of the claim is respecting crossings. The statute therefore that the Kiowa Company is a nonresident gives not only the remedy of appeal, but also defendant which could not be served in Shaw- the right to challenge the order in a direct nee county, and that while an action might be equitable proceeding, in which not only the brought against the Board of Railroad Com- amount of the award and the questions inmissioners there was no right to summon the volved in an appeal, but all other questions railroad company, unless there was a cause of an equitable character may be tried and of action against it and the board, and un- determined. The proceeding in which the ore less both were properly joined as defendants der in question was made fairly comes with-citing Marshall v. Land Company, 75 Kan. in 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 commis- consulted. In every other respect the court sioners acted without authority, or where the indicated that it was granting a mere temdecision was fraudulently obtained. U. T. R. porary restraining order. The fact that it Co. v. R. Com'rs, 54 Kan. 352, 38 Pac. 290. was granted ex parte and without notice inBut under the later statute and the new rem- dicated to some extent the purpose of the edy provided the courts may inquire into the court, and the further fact that no bond was reasonableness and justice of the order, as required showed the view which the court well as its validity.

took of it. In the order itself the court in Apart from this consideration the district plain terms called it a temporary restraining court has jurisdiction of the subject of in- order, and we think it should be so treated in junction, and determined upon a challenge of this collateral attack. The order, although misjoinder that the Board of Railroad Com- it may have been erroneously granted, should missioners and the Kiowa Company were have been obeyed by the defendants until it properly joined as defendants, and the ac was set aside in a direct proceeding. tion rightly brought against both parties. If It follows that the petitioner must be rethe decision was wrong it was one to be cor- manded. All the Justices concurring. rected on error, and not in a habeas corpus proceeding. In Ayres v. Deering, 76 Kan. 149, 90 Pac. 794, it was contended that a

(83 Kan. 1) judgment was open to collateral attack because an action against a nonresident defend

POWERS v. SUMBLER. ant could not be properly joined with that (Supreme Court of Kansas. July 9, 1910.) against a resident defendant, the defect being apparent on the face of the petition, and

(Syllabus by the Court.) it was said: “The petition was sufficient to 1. ABATEMENT AND REVIVAL (8 69*)—DEATH

OF PLAINTIFF. bring up for decision the question whether

Under Section 421 of the old Code Civ. there was a misjoinder. True, it showed up. Proc. (section 418, Code Civ. Proc. 1909 (Gen. on its face that in a correct view of the law St. 1909, $ 6013]), providing that no action pendthe two causes of action could not properly ing in any court sħall abate by the death of ei

ther or both of the parties thereto, except cerbe united, and therefore that a sunimons tain actions therein named, an action by a wife could not lawfully be served upon Jackson for the alienation of her husband's affections in another county ; but whether the misjoin- does not abate by her death, while the action is der was rightful was one of the very matters pending in the Supreme Court. to be determined. The fact that the record

[Ed. Note. For other cases, see Abatement showed that it was wrongly decided does not and Revival, Cent. Dig. 88 349–354; Dec. Dig. §

69.*] render the resulting judgment open to collateral attack. See, also, National Bank v.

2. DISCOVERY ( 96*)-UNDER STATUTORY PRO

VISIONS-INSPECTION OF WRITINGS — FAILTown Co., 51 Kan. 215, 32 Pac. 902; Cleven

URE TO COMPLY WITH DEMAND. ger v. Figley, 68 Kan. 699, 75 Pac. 1001.

Where the defendant, proceeding under secThere is a contention that the order vio- tion 369 of the old Code Civ. °Proc. (seclated was a temporary injunction rather than tion 366, Code Civ. Proc. 1909 (Gen. St. 1909,

§ 5961]), demands of the plaintiff an inspection a temporary restraining order, and as

no and permission to make copies of certain letbond was required or given the order never ters which the plaintiff intends to offer in evibecame operative. It was a temporary re-dence at the trial, no order of the court is necstraining order which was asked for, and the essary requiring the plaintiff to comply with

such demand; and where the demand is not district court treated and designated the or- complied with, no error is committed in susder granted as a temporary restraining or- taining an objection to the admission in evider. The only basis for calling the restrain- dence of the original of which a copy has been

refused. ing order a temporary injunction was that no time was fixed to hear the application for a

(Ed. Note.-For other cases, see Discovery,

Dec. Dig. $ 96.*] temporary injunction, but this fact alone does not determine the character of the order. 3. HUSBAND AND WIFE ($ 325*) -ALIENATION

OF HUSBAND'S AFFECTIONS-RIGHT OF ACThe purpose of a temporary restraining order is to suspend operations until the propriety In an action by the wife against a stranger of granting an injunction can be heard, and, to recover damages for the alienation of the of course, it should only be continued for a affections of her husband, the court correctly brief time. Ordinarily the order granting it charged that in order for the plaintiff to recover

it was necessary to show that it was the efforts limits its operation by providing that it shall of the defendant which were the controlling only continue until a certain day, when a cause that destroyed the affection which the hearing for a temporary injunction shall be plaintiff's husband had for her and caused their had. Instead of fixing a particular day in se pa ration, and that the acts of the defendant

were done knowingly and intentionally, for the this instance the court temporarily restrained purpose of alienating the husband's affections. the parties, until the further order of the

[Ed. Note.--For other cases, see Husband and court. The time for a hearing may have been I Wife, Cent. Dig. $ 1119; Dec. Dig. $ 325.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

TION.

« PreviousContinue »