Cherokee County Com'rs v. State

• Citation: 13 P. 558,36 Kan. 337
• Parties: THE BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, et al., v. THE STATE OF KANSAS, on the Relation of C. O. Stockslager, County Attorney
• Decision Date: 08 April 1887
• Court: United States State Supreme Court of Kansas

13 P. 558

36 Kan. 337

THE BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, et al., v. THE STATE OF KANSAS, on the Relation of C. O. Stockslager, County Attorney

Supreme Court of Kansas

April 8, 1887

Error from Cherokee District Court.

INJUNCTION brought by The State, on the relation of the county attorney of Cherokee county, against the Board of Commissioners of said county, and the county clerk thereof. On September 7 1886, the judge of the district court refused to dissolve the temporary injunction theretofore granted in the action. The defendants bring the case here. The material facts are stated in the opinion.

Judgment reversed.

S. B Bradford, attorney general, W. R. Cowley, H. G. Webb, and Edwin A. Austin, for plaintiffs in error.

Rossington, Smith & Dallas, for defendant in error; C. O. Stockslager, and M. V. B. Bennett, of counsel.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The object of the petition filed in the court below is to obtain a preventive remedy against the enforcement of chapter 75 of the Laws of 1886, upon the ground that the same is unconstitutional. The only question for de-termination is, whether said chapter 75 is in conflict with § 16, article 2, of the constitution of the state. Said section of the constitution ordains, among other things, that "No bill shall contain more than one subject, which shall be clearly expressed in its title." The act in question is entitled "An act to authorize the board of county commissioners of Cherokee county to build a court house, and to build and to pay for bridges in said county, and to provide a fund therefor." The act commences as follows:

"That the board of county commissioners of Cherokee county is hereby authorized, at the regular time of making the annual levy of taxes for the year eighteen hundred and eighty-six, to levy a tax not to exceed three mills on each dollar of taxable property in said county, and in each succeeding year thereafter a like tax, until the taxes thus levied shall reach the sum of seventy thousand dollars and no more, which taxes so levied shall be collected as other taxes; and the said board of county commissioners shall appropriate the same as follows," etc.

Under the act, a court house is to be built and furnished in Cherokee county, at a cost not exceeding $ 40,000, and certain bridges are to be built and paid for in that county. The subject of the act is the creation and use of a fund for public improvements in Cherokee county, consisting of a court house and bridges. The learned district judge who granted the temporary injunction in this case and refused to dissolve the same upon hearing, stated in his opinion that as the fund provided for was to be used to build a court house and pay for bridges, the act contains two subjects, and therefore the same is in contravention of the mandate of the constitution. Of course if we ignore the provisions of the act to create a fund of $ 70,000 for the purpose of public improvements, and then decide that the building of a court house has no connection with the building of bridges, and that these matters have no relation to each other, the decision of the court below may be sustained; but we do not think this is the proper view of the case

We are not to declare an act of the legislature unconstitutional unless the reasons against its unconstitutionality at least preponderate over the reasons in favor of its validity. If the reasons are equally balanced, we should declare in favor of the validity of the act. It is generally said that before an act of the legislature can be declared unconstitutional, its unconstitutionality must clearly appear. (The State v. Hitchcock, 1 Kan. 178; Comm'rs of Leavenworth Co. v. Miller, 7 id. 479; The State, ex rel., v. Ewing, 22 id. 708; Comm'rs of Norton Co. v. Shoemaker, 27 id. 77; Weyand v. Stover, Treas., 35 id. 545.) Therefore if we can construe the act of 1886 in harmony with the provisions of the constitution, it is our duty to respect the will of the legislature and declare the act valid.

The construction of county buildings and bridges has been a matter of previous consideration by the legislature in the same statute, thus:

"All contracts for the...