Hornaday v. State

• Decision Date: 06 October 1900
• Docket Number: 11,716
• Citation: Hornaday v. State, 62 Kan. 822, 62 P. 329 (Kan. 1900)
• Parties: GRANT HORNADAY et al. v. THE STATE OF KANSAS, ex rel., etc
• Court: Kansas Supreme Court

62 P. 329

62 Kan. 822

GRANT HORNADAY et al. v. THE STATE OF KANSAS, ex rel., etc

No. 11,716

Supreme Court of Kansas

October 6, 1900

Decided July, 1900.

Error from Clay district court; W. S. GLASS, judge.

Judgment affirmed.

Kimball & Osgood, T. N. Sedgwick, and H. G. Webb, for plaintiffs in error.

J. H Russell, county attorney, and Coleman & Williams, for defendants in error.

OPINION

SMITH, J.:

This was a suit brought by the state of Kansas, on the relation of the county attorney of Clay county, against the board of trustees of the asylums for the insane, to enjoin the latter from accepting, on behalf of the state of Kansas, deeds conveying to the state certain lands near the city of Parsons, for the purpose of erecting an asylum for the insane thereon, and from certifying to the state auditor any vouchers on which warrants might be issued on the state treasurer to pay the owners of said real estate the price of the same; and, further, to restrain said trustees from making any contract in the name or on behalf of the state of Kansas for the construction of buildings to be used as an insane asylum at or near the city of Parsons. Judgment was entered on the pleadings in the district court in favor of the state, and a perpetual injunction decreed in accordance with the prayer of the petition.

The facts, briefly stated, are as follows: Chapter 13 of the Laws of 1899, approved March 3 of the same year, is entitled:

"An act making an appropriation for the erection and equipment of an insane asylum at some place in the state of Kansas, providing a manner of locating the same, and for the purpose of securing a site, and providing for the management and maintenance of the same."

In the first section of the act the sum of $ 100,000 is appropriated for the purpose of securing a site and for building and equipping an insane asylum of the state. In section 2 it is provided that the asylum shall be located at some convenient suitable and healthful point within three miles of the corporate limits of some city in the state of Kansas, the same to be selected by a legislative committee consisting of four members from the senate and five from the house. It is made the duty of this committee to visit various places in the state presenting desirable localities for the institution; to consider carefully the geographical location with reference to population; to ascertain whether there is an abundant water-supply, whether there are proper railway facilities, whether a suitable site adapted to the needs of such an institution can be procured; and, after considering all the advantages and disadvantages, including cost of maintaining the institution, finally to proceed to determine such location by ballot. The act requires that the ground selected shall contain not less than 640 acres, that the action of said committee shall be final and conclusive, and that the asylum shall be declared to be located by the action of such committee, and the institution built pursuant to said act. It contains other provisions governing the construction of said institution.

The law further commits the matter of plans and specifications for the proposed asylum to the board of trustees of said charitable institutions, and requires that they shall agree upon a plan of erection, employ superintendents, have the exclusive superintendence and control over the erection of the buildings, and that, upon their completion, said board shall appoint a superintendent and such other help as is necessary, and at once open the institution for the receiving of insane patients. It authorizes the board of charities to certify accounts covering the cost of the buildings to the auditor of state, who is required to draw his warrant on the treasurer for the payment thereof.

Pursuant to this act a legislative committee was appointed, and on the 8th day of June, 1899, reported to the governor that it had selected a site for said asylum at a convenient, suitable and healthful point immediately joining the corporate limits of the city of Parsons, upon certain lands (describing them) containing 640 acres, more or less, for which said committee had agreed to pay the aggregate sum of $ 28,000. The board of trustees, plaintiffs in error, recognized the existence and assumed authority of said legislative committee, and received from the parties with whom the committee had contracted for the land upon which to erect said asylum deeds to the same, and were, at the the time this suit was begun, about to certify to the state auditor vouchers in favor of the owners of the property, to the end that they might be paid the agreed consideration therefor.

The important question to be decided is whether this legislative committee was vested with power, under the act above mentioned, to bargain for and fix a price for the site of the proposed asylum which would be obligatory on the said state board of trustees or other state officer. It will be noticed that the appropriation of $ 100,000 is made for the purpose, among others, of securing a site. The legislative committee is authorized to select the site, and further to determine "whether a suitable site, adapted to the needs of such an institution, can be procured," and to determine such location by ballot. Subdivision 4 of section 2 reads:

"Such action of said committee shall be deemed final and conclusive, and said asylum shall be declared to be located by the action of a majority of such committee, and said asylum shall be built pursuant to the provisions of this act and of law governing the construction of said institutions."

While the first section, following the language of the title, appropriates money for the purpose of securing a site, there is no manner expressly designated in the law for the obtaining of it. The word "purchase" is nowhere employed. As before stated, the purpose of the committee's appointment was to select a site, and its duties are expressly pointed out in subdivision 2 of section 2, which requires it to determine whether a suitable site, adapted to the needs of such institution, could be procured.

It is contended by counsel for the state that the power of this committee was restricted to the selection of some city in the state of Kansas, within three miles of the corporate limits of which the asylum was to be located. We differ with them in their construction of the law. It reads: "Said asylum shall be located at some convenient, suitable and healthful point within three miles of the corporate limit of some city in the state of Kansas, the same to be selected in the following manner." The word same used in the last clause of the sentence clearly refers to the "healthful point within three miles of the corporate limit of some city," and not to the city itself.

Concerning all the sections of chapter 13 together, we are quite certain that the power and authority of this body was limited to the selection of a site for the institution, and that, having performed such duties, its decision is to be deemed final and conclusive, so far as a choice of sites is concerned; but we can find nothing in the act which justifies the conclusion that such committee was empowered to bargain for or purchase the 640 acres of land thought by the legislature to be...