State v. Younkin

• Decision Date: 12 March 1921
• Docket Number: 23,371
• Citation: 108 Kan. 634,196 P. 620
• Parties: THE STATE OF KANSAS, ex rel. W. J. WEBER, as County Attorney of Barton County, Plaintiff, v. G. S. YOUNKIN, as County Clerk of Barton County, and M. W. WATSON, as State Highway Engineer, Defendants
• Court: Kansas Supreme Court

196 P. 620

108 Kan. 634

THE STATE OF KANSAS, ex rel. W. J. WEBER, as County Attorney of Barton County, Plaintiff, v. G. S. YOUNKIN, as County Clerk of Barton County, and M. W. WATSON, as State Highway Engineer, Defendants

No. 23,371

Supreme Court of Kansas

March 12, 1921

Decided January, 1921.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--County Clerk Not Compelled by Mandamus to Perform a Ministerial Duty to Give Effect to an Unlawful Act. A county clerk will not be required by mandamus to perform a ministerial duty when its performance is necessary to give effect to an unlawful act which the board of county commissioners has undertaken, although the board has full responsibility therefor and the county clerk has none.

2. HIGHWAYS--County Commissioners Constructing Improved Highway--Purchase of Road-building Material--Inequitable Distribution of Costs Thereof. When a board of county commissioners, pursuant to statutory authority, undertakes to construct an improved highway, the board may lawfully purchase road-building machinery for that purpose, and charge the initial cost to the road project; but it does not follow that the large sum which the board might justifiably expend for such machinery for a proposed highway of twenty-nine miles can be charged against a road project of five miles of such highway when it develops that the remaining parts of the proposed highway must be abandoned because of initial irregularities.

3. SAME. An expenditure of a sum of money which might be justifiable to invest in road-building machinery to construct a proposed highway of twenty-nine miles may be altogether unreasonable in amount when only five and a fraction miles of such highway must carry the entire burden of such expense.

4. SAME--Implied Powers Conferred on Public Officials. When, by statute, official powers and duties are conferred or imposed upon a public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for the effective exercise and discharge of the powers and duties expressly conferred and imposed.

5. SAME--Duty and Discretion of Highway Engineer. When there is no showing that the state highway engineer has abused his discretion in determining the estimate which he will allow to be charged as part of the cost of a road for road-building machinery, and no fallacy is shown in the calculations by which he determined such estimate, his official determination of the matter will not be controlled by mandamus.

6. SAME--Plan for Distribution of Costs Unreasonable and Unlawful--Mandamus Refused. Pursuant to petitions of resident landowners, the board of county commissioners of Barton county set about the construction of an improved highway of twenty-nine miles across the county. It was determined to create four benefit districts and complete the highway in four separate projects. The board found that the cost of building the highway by contract would be excessive, and it determined, as by law permitted, to build the highway itself. Pursuant thereto it purchased $ 168,000 worth of road-building machinery. Later the road projects were enjoined because of initial irregularities. The taxpayers particularly interested in the proposed road filed new petitions to built about five miles of it. The board of county commissioners set to work on that project, and as a temporary expedient authorized a bond issue for the total cost of the machinery designed for constructing the entire twenty-nine miles of highway originally contemplated. The state highway engineer declined to sanction the charging of all the cost of the road-building machinery against the five-mile road project, and the county clerk declined to sign and register such bond issue. Held, that mandamus will not issue to compel these officers to perform any official acts necessary to accomplish such purpose of the county board.

W. J Weber, county attorney, for the plaintiff; F. Dumont Smith, and Eustace Smith, both of Hutchinson, of counsel.

Richard J. Hopkins, attorney-general, J. K. Rankin, assistant attorney-general, William Osmond, Elrick C. Cole, and T. B. Kelly, all of Great Bend, for the defendants.

OPINION

DAWSON, J.:

The state asks for a writ of mandamus directing the county clerk of Barton county to perform certain clerical duties pertaining to an issue of road bonds authorized by the board of county commissioners. The state highway engineer is impleaded because of his official concern therewith and may have some official duties to perform in relation thereto.

It appears that in 1919 the board of county commissioners of Barton county undertook to build a hard-surface highway across Barton county from east to west through Ellinwood and Great Bend. Such was the main plan, but as the work was founded upon the initiative of separate groups of petitioners, necessitating the creation of separate benefit districts to be charged with distinct parts of the cost of the improvement, the work was undertaken as four distinct projects, "A," "B," "C" and "D," totaling twenty-nine miles--the latter project, "D," being five and a fraction miles of the proposed highway, and extending from the east line of the county to the city of Ellinwood.

Owing to the seemingly high bids filed by road-building contractors, the board of county commissioners decided to purchase road-building machinery and construct the road itself. This the board had statutory authority to do. (Laws 1919, ch. 246.) Pursuant thereto, and having in contemplation the construction of a highway extending across the whole county, the board purchased road-building machinery and equipment to the amount of $ 168,000.

About this time the legality of the proceedings under which the county board were assuming to act was called in question in a taxpayers' suit, and the work was enjoined because the expense of the highway was in excess of the maximum cost specified in the petitions of the landowners which were the basis for the authority of the county board to construct the highway. (Hines v. Barton County, 106 Kan. 682, 189 P. 368.)

Following the judicial determination that the county board could not construct a road at $ 40,000 or $ 60,000 per mile or any other excessive price, while using as a basis therefor a taxpayers' petition for a road costing not more than $ 30,000 per mile, the resident landowners who were particularly interested in that part of the proposed highway designated as project "D" filed a new petition with the county board praying for the construction of the highway without any specified limitation as to its cost. On this petition the county board set to work anew on the work of road-building, and as the work has progressed bonds to the amount of $ 190,000 have been issued. But owing to the abandonment of the other road projects, "A," "B" and "C," because of initial infirmities, the county board decided to charge the entire cost of the road-building machinery to renewed project "D"; and, consequently, even the large amount of bonds already issued has not raised sufficient money to buy all this equipment and to complete the construction of project "D." The board's intention was only to charge this great sum temporarily against project "D," and it intended to sell this road-building machinery after...