Fulkerson v. The Board of Commissioners of Harper County

• Decision Date: 01 July 1883
• Citation: 1 P. 261,31 Kan. 125
• Parties: G. Y. FULKERSON v. THE BOARD OF COMMISSIONERS OF HARPER COUNTY
• Court: Kansas Supreme Court

1 P. 261

31 Kan. 125

G. Y. FULKERSON v. THE BOARD OF COMMISSIONERS OF HARPER COUNTY

Supreme Court of Kansas

July 1, 1883

Error from Harper District Court.

THE opinion states the facts. April 3, 1883, judgment for The Board of Commissioners and against Fulkerson, who brings it here for reversal.

Judgment affirmed.

Finch & Finch, and I. P. Campbell, for plaintiff in error.

J. Paul Grove, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On July 15, 1882, G. Y. Fulkerson and fifty-five others petitioned the board of county commissioners of Harper county, Kansas "to set off and organize a new township" in that county. July 17, 1882, the board refused to grant the prayer of this petition. Afterward, G. Y. Fulkerson took an appeal to the district court, provided he could take an appeal in such a case. He founded his right to take the appeal upon § 30 of the act relating to counties and county officers, and upon the claim that he was "a signer of said petition, and a resident, householder, tax-payer, and voter, within the boundaries of said proposed new township." April 3, 1883, the county attorney of Harper county moved to dismiss the appeal, on the grounds that Fulkerson could not properly take an appeal, and that no appeal lies from the board of county commissioners to the district court in such a case. The district court sustained this motion, dismissed the appeal, and rendered judgment for costs in favor of the board of county commissioners and against Fulkerson; and Fulkerson now brings the case to this court, and asks for a reversal of said judgment.

Section 16, chapter 25, of the act relating to counties and county officers, provides, among other things, as follows:

"SEC. 16. The board of county commissioners of each county shall have power, at any meeting, . . . Sixth, to set off, organize, and change the boundaries of townships in their respective counties; to designate and give names therefor, and to fix the time and place of holding the first election therein."

Section 24, of said chapter, reads as follows:

"SEC. 24. The board of county commissioners shall not set off or organize any new township, unless it shall contain territory equal to at least thirty square miles, and at least two hundred inhabitants within the limits thereof, except when an incorporated city or town is included in the limits of said township; nor shall any township be set off and organized, unless a petition be first presented to the board, signed by at least fifty electors resident therein."

Sections 28 and 29, of said chapter, provide for the allowing of accounts against the county and the issuing of orders therefor.

Section 30, of said chapter, reads as follows:

"SEC. 30. Any person who shall be aggrieved by any decision of the board of commissioners, may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board, within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant."

Under the constitution and statutes of the state of Kansas the board of county commissioners has various powers--legislative, administrative, executive discretionary, and quasi judicial. Many of their powers are of a purely political character, but some of them, as before stated, are of a quasi judicial character. Some of the statutes conferring power upon the county commissioners are mandatory, while other statutes conferring power upon them are purely directory, and the powers conferred are often entirely discretionary. The constitution provides, among other things, that "the legislature may confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient." (Const., art. 2, § 21.) The legislature has conferred upon the board of county...