State ex rel. Downer v. Board of Com'rs of Kearny County

• Decision Date: 09 October 1937
• Docket Number: 33398.
• Citation: 146 Kan. 461,72 P.2d 67
• Parties: STATE ex rel. DOWNER, Co. Atty., et al. v. BOARD OF COM'RS OF KEARNY COUNTY.
• Court: Kansas Supreme Court

72 P.2d 67

146 Kan. 461

STATE ex rel. DOWNER, Co. Atty., et al. v. BOARD OF COM'RS OF KEARNY COUNTY.

No. 33398.

Supreme Court of Kansas

October 9, 1937

Syllabus by the Court.

Mandamus is proper and usual remedy to procure prompt official action where duty to perform is clear and obligatory.

The Legislature, by amendatory statute providing that counties might unite in construction of bridge the "on or near to a county line," intended to liberalize statute so that engineers might exercise their skill and discretion in laying out highway (Gen.St.1935, 68-1122).

The word "near" is relative in its signification. What would be near in one locality would not be in another. Each case must be governed by its special circumstances.

Where bridge had been constructed on county line highway under direction of State Highway Commission after failure of county commissioners of respective counties to agree upon its construction, county refusing to pay could be compelled by mandamus to pay its share of cost of bridge, notwithstanding that bridge, because of engineering difficulties, was actually located in other county at distance of 2,050 feet from line (Gen.St. 1935, 68-1122).

In original proceedings in mandamus to compel the defendant county to make provision for the payment of its apportioned share of the cost of a bridge on a county line highway as ordered by the State Highway Commission, the pleadings examined, and the findings of fact and conclusions of law reported by a commissioner appointed by this court sustained and judgment ordered thereon.

Original proceedings in mandamus by the State of Kansas, on the relation of A. M. Downer, as County Attorney of Hamilton County, and the Board of County Commissioners of Hamilton County, against the Board of County Commissioners of Kearny County.

Writ allowed.

A. M Downer, of Syracuse, Wint Smith, of Salina, and Otho W Lomax, of Topeka, for plaintiffs.

Roland H. Tate, of Garden City, and John Edwards, of Lakin, for defendant.

DAWSON Chief Justice.

The State brought this action in mandamus to require the Board of County Commissioners of Kearny County to contribute to the cost of erecting a bridge across the Arkansas river. The bridge is a part of the north-and-south county line highway between Kearny and Hamilton Counties, although the situs of the highway where the bridge was erected was not exactly on the county line but at some distance west of it. This latter fact, however, was merely due to engineering problems of highway and bridge construction in that locality.

In its application for the writ the State pleaded at length certain geographical and historical facts out of which the present controversy arose, to wit:

The Arkansas river runs eastward through Hamilton and Kearny Counties. In 1885 a toll bridge was erected by a private corporation near the present dividing line of the two counties.

At that early date Kearny County was not yet in existence. The territory surrounding that bridge was designated Kendall township in Hamilton County. In 1887 Kendall township voted bonds to purchase the bridge and thereafter it was maintained as a public bridge.

In 1887 Kearny County was organized and part of Kendall township was included within its boundaries. Thereafter for a number of years the bridge was maintained at the expense of Kendall township in Kearny County and Kendall township in Hamilton County, each contributing equally to the expenses of maintenance.

In 1895 these two townships raised $3,000 by bond issues, and the bridge was rebuilt a half mile upstream in Hamilton County. The two townships continued to contribute to the maintenance of the relocated and reconstructed bridge until 1917, when by statute all such bridges were placed under control of the board of county commissioners of the counties concerned.

For some time after the enactment of the statute of 1917 (Laws 1917, c. 80), Kearny County contributed to the cost of maintaining this bridge, but later its county board refused to do so. By 1935 the bridge had fallen into disrepair, and became unsafe for public travel.

Negotiations instituted by the Board of County Commissioners of Hamilton County for the replacement of the bridge and for an apportionment of its cost were not well received by the Board of County Commissioners of Kearny County, so in June, 1935, the Hamilton County Board invoked the jurisdiction of the State Highway Commission for an order apportioning the cost between the two counties. Upon notice and an opportunity to be heard (which Kearny County ignored) the State Highway Commission made pertinent findings, one of which was that the replacement of the bridge was necessary to serve the public convenience as a part of the intercounty system of highways, and that Hamilton County and Kearny County should each contribute 50 percent. of the cost.

The new bridge was constructed at a cost of $27,448.84, exclusive of its approaches. The federal government made a grant of $12,044.38 towards its cost, leaving $15,404.46 to be paid by the counties concerned.

In the answer and return to the alternative writ (which extends to 23 printed pages of the abstract) to show cause why Kearny county should not be required to provide funds for the...