City of Eudora v. Darling
| Decision Date | 09 February 1895 |
| Citation | 54 Kan. 654,39 P. 184 |
| Parties | THE CITY OF EUDORA v. THOMAS C. DARLING |
| Court | Kansas Supreme Court |
Error from Douglas District Court.
THE City of Eudora was incorporated by an act of the territorial legislature of the territory of Kansas on the 28th day of February, 1859, and in the corporate limits were embraced all of section 8, except 40 acres taken off the west side, and 200 acres off the south and east side of section 5, township 13, and range 21. This territory was laid off in blocks and lots, with public streets and alleys. The legislature of the state, by § 61, chapter 261, approved March 2, 1889 attempted to vacate a part of the streets and alleys of the territory of Eudora. After the passage of the act of the legislature of 1889 vacating the streets and alleys lying south of Twelfth street, except C, E and Nineteenth streets the defendant, Thomas C. Darling, obstructed and fenced up the streets, basing his right to do so on the act of the legislature. The city of Eudora sought to enjoin him from so doing, and obtained a temporary restraining order from the district court, which at the trial was dissolved. That ruling of the court is now challenged as erroneous, and the city of Eudora brings the case here to review the judgment.
Judgment affirmed.
G. N Elliott, for plaintiff in error.
J. W. Green, for defendant in error.
OPINION
I. It is insisted that the territorial act of incorporation invested the inhabitants of Eudora with rights of property of which they could not be divested without their consent, and therefore that § 61 of chapter 261, Laws of 1889, vacating the streets in controversy, is of no force or validity, because it attempts to affect corporate powers granted by the territorial legislature, and also attempts to annul vested rights legally conferred. The streets and alleys laid out and established in Eudora were open for travel to the public. The legislature, as the representative of the public, has full power over the streets and alleys of a city to vacate the same. (Railroad Co. v. Garside, 10 Kan. 552; Heller v. Railroad Co., 28 id. 625.) Therefore, when the city of Eudora dedicated to public use its streets and alleys, it granted to the legislature, as the representative of the public, control thereof. Section 61 of chapter 261, Laws of 1889, does not interfere with corporate privileges or vested rights.
II. It is next insisted that chapter 261, Laws of 1889, contains more than one subject, and,...
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