30 F. 906 (D.Kan. 1887), Bard v. City of Augusta

Citation:30 F. 906
Party Name:BARD v. CITY OF AUGUSTA.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 906

30 F. 906 (D.Kan. 1887)

BARD

v.

CITY OF AUGUSTA.

United States Circuit Court, D. Kansas.

1887

John O'Day, for plaintiff.

S. O. Thacher, for defendant.

BREWER, J.

This action is on railroad aid bonds, and the question presented by the demurrer to the second count of the answer is as to the power of the defendant city to issue such bonds; for, if the power existed, the recitals in the bonds cut off other defenses. The defendant is a city of the third class. The act for the organization of such cities was passed in 1871. Section 4 reads as follows:

'Municipal corporations regulated and governed by this act shall be and remain a part of the corporate limits of the municipal townships in which the same are situated, for all township purposes of electing justices of the peace, constables, for the purpose of building bridges, and subscribing stock in aid of constructing railroads. All elections for justices of the peace and constables, and for issuing township bonds for building bridges and railroads, shall be held at such place as shall be prescribed for holding the township elections. ' Comp. Laws. 187.

This section was amended in 1876 by the addition of two provisos, and, as amended, took effect February 29, 1876. Nothing need be said as to these provisos, for it is conceded that defendant did not come within their scope.

Now, the contention of defendant is that, under this section, the sole power of issuing railroad bonds was in the township, and therefore that its issue of such bonds was without warrant of law. This is a misconception of the import of the section. It does not attempt to limit or qualify any of the powers given by other portions of the act to the city. It simply provides that the mere organization of the municipality into a city of the third class shall not withdraw it from the territorial limits of the township, but it shall remain a part thereof for certain township purposes.

Page 907

A consideration of other legislation will make this clear. The boundaries of counties are prescribed by statute. All cities within the boundaries of a county remain parts of it for all county purposes. County taxes are charged upon their property. County officers exercise all their functions within their territory. Still the powers of the cities are not affected by this territorial and corporate inclusion within the county. Townships, on the other hand, are created, and their boundaries prescribed...

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