Wyandotte County Com'rs v. Abbott

• Decision Date: 10 June 1893
• Citation: 52 Kan. 148,34 P. 416
• Parties: THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY et al. v. DANIEL ABBOTT
• Court: Kansas Supreme Court

34 P. 416

52 Kan. 148

THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY et al. v. DANIEL ABBOTT

Supreme Court of Kansas

June 10, 1893

Error from Wyandotte Court of Common Pleas.

THIS action was originally brought by Daniel Abbott, under § 253 of the code, against the Board of County Commissioners and others, to enjoin the collection of certain taxes levied by special assessments upon Abbott's farm, under the provisions of chapter 214 of the Laws of 1887, entitled "An act providing for the improvement of county roads." On March 16, 1891, this case was transferred from the district court of Wyandotte county to the court of common pleas of that county. On July 15, 1892, a stipulation was filed in the case wherein it was agreed:

"1. That Daniel Abbott was the owner of the southeast quarter of section 34, township 11, range 25, less 18 acres known as 'Lancaster Heights;' also the east half of the southwest quarter of southeast quarter of section 34 township 11, range 25, all lying within one-half mile of the road known as the 'Abbott road.'

"2. That a petition was presented to the board of county commissioners, praying for the making of certain improvements on the Abbott road, in accordance with and under authority of chapter 214 of the Laws of 1887.

"3. That commissioners were appointed, who caused the road to be improved.

"4. That the commissioners apportioned two-thirds of the cost of the improvements upon all the lands lying within one-half mile of said road, including the Abbott land above mentioned and the county commissioners and others have placed the same on the duplicate tax rolls as a tax against the land, and have entered the remaining one-third as a general tax upon all the lands in the county, and will collect the same unless restrained."

Upon the agreed statement of facts, the court below, on the 10th day of September, 1892, found for Daniel Abbott, and against each and all of the defendants below, that the act under which the improvements mentioned in the petition were made is unconstitutional and void, and thereupon adjudged that the temporary injunction theretofore granted be made perpetual. The board of county commissioners and others excepted, and bring the case here.

Judgment reversed.

HORTON C. J., ALLEN, J., concurring, JOHNSTON, J., dissenting.

OPINION

HORTON, C. J.:

The only question presented is, whether chapter 214, Laws of 1887, is constitutional. The court below held the act to be unconstitutional. We appreciate the well-settled doctrine of this court, as, also, of the supreme courts of nearly all the states, that no statute should be declared unconstitutional unless the infringement of the superior law is clear, beyond substantial doubt. (The State, ex rel., v. Robinson, 1 Kan. 17; Comm'rs of Leavenworth Co. v. Miller, 7 id. 479; The State, ex rel., v. Hunter, 38 id. 578; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606.) "As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails." (The State, ex rel., v. Thoman, 10 Kan. 191.) "Constitutional limitations need not always be express. They are equally effective when they arise by implication." (Prouty v. Stover, 11 Kan. 235.) "It would be a dangerous doctrine to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument." ( Comm'rs of Sedgwick Co. v. Bailey, 13 Kan. 600.)

The first contention is, that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made. No discretion, exercise of judgment, or revisory or supervisory control is vested in the board of county commissioners, or any other tribunal or officer elected by or responsible to the people. When the petition is presented to the board of county commissioners demanding the improvement of a road, it is, in the language of the statute, "made the duty of such county commissioners to cause the same to be improved." The county commissioners have no discretion to refuse the improvement. Here an important power, namely, that of causing public improvements, and of levying general taxes on all of the people, in addition to special assessments on a portion. of them, to pay for such improvements, is conferred directly upon a class of persons, many of whom may not be electors. The petitioners are authorized, absolutely and arbitrarily, to fix the boundaries of the taxing district; the nature, extent and cost of the improvement to be made; and no officer or tribunal of the people has any discretion in this respect. The boundaries of the taxing district are fixed by the "terminal points mentioned in the petition." "The points between which the improvements are to be made," and "the kind of improvements," are determined by the petition.

Opposing counsel say that the board of county commissioners has, under the statute, discretion whether to make the improvement or not. They insist that the statute is directory only, not mandatory. Within the prior decisions of this court, we think otherwise. The statute reads:

"That whenever a majority of the resident landholders within one-half mile on either side along the line of any regularly laid out road, within the terminal points mentioned in the petition, shall petition the board of county commissioners of any county in this state for the improvement of any road as located, or any part thereof, it is hereby made the duty of such county commissioners to cause the same to be improved, as hereinafter provided." (Laws of 1887, ch. 214, § 1.)

It was decided in The State, ex rel., v. Faulkner, 20 Kan. 541, that

"Where a city of the third class has in fact a population of over 2,000 inhabitants, but such fact has never been legally ascertained by the city authorities, it is the legal duty of such city authorities to immediately and legally ascertain such fact, and then to take the necessary steps to organize as a city of the second class."

Section 1, chapter 107, Laws of 1876, reads:

"Whenever two-fifths of the resident taxpayers of any county, or two-fifths of the resident taxpayers of any municipal township, shall petition in writing the board of county commissioners, or whenever two-fifths of the resident taxpayers of any incorporated city shall petition the mayor and council of such city, to submit to the qualified voters of such county, township or city a proposition to subscribe to the capital stock of, or to loan the credit of such county, township or city to, any railroad company constructing or proposing to construct a railroad through or into such county, township, or city, the county commissioners for such county or township, or the mayor and council for such city, shall cause an election to be held to determine whether such subscription or loan shall be made."

That section was construed as being mandatory, not discretionary. If a sufficient petition is presented under that statute, it is the duty of the board of county commissioners to call an election. There is no discretion. (The State, ex rel., v. Comm'rs of Rush Co., 35 Kan. 150; The State, ex rel., v. Comm'rs of Reno Co., 38 id. 317; C. K. & N. Rly. Co. v. City of Manhattan, 45 id. 419; The State, ex rel., v. Comm'rs of Cloud Co., 39 id. 700.) These and many other decisions of this court hold that, where a legal duty is cast upon a board of county commissioners, that duty may be enforced by mandamus, and such duty cannot be evaded upon the ground that the county officials have a discretion to act. The statute referred to makes it the duty of the county commissioners to cause the improvement to be made, if the petition required by § 1 of chapter 214 is presented and filed.

Section 1, article 2, of the constitution of the state, ordains that "The legislative power of this state shall be vested in a house of representatives and senate."

Section 21, article 2, of the Constitution, ordains 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."

Section 5, article 12, of the constitution, ordains that "Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power."

The improvement in this case is not within any city, town, or village; therefore, so far as this case is concerned, under the constitution of the state, no power of legislation can be exercised excepting by the legislature itself, or some tribunal transacting county business. The board of road commissioners authorized to be appointed under the provisions of said chapter 214, is not a county tribunal; therefore under the constitution, these commissioners have no power of local legislation, and the legislature has no power, under the constitution, to delegate the road commissioners any legislative authority. (Cooley, Const. Lim., §§ 117, 191.) It was said by Chief Justice KINGMAN, in Auditor State v. Railroad Co. , 6 Kan. 500, that

"Where the money is raised by taxation, an ascertainment of the value of the property is a necessary prerequisite, and therefore an incident to the power to tax. It would be competent for the legislature to appoint...