Board of Commissioners v. Winkley

29 Kan. 36

• Court: Supreme Court of Kansas
• Decided: July 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Hokton, C. J.:

It is affirmed by the counsel of plaintiff in error, that the statute under which the bounty was claimed by the plaintiff below is unconstitutional, because it authorizes taxation in aid of a private object; because it is a delegation of legislative power; and because its title does not ■clearly express its subject. Counsel further affirms that the bounty proposition was never legally adopted by a vote of •the people of Marion county. In Comm’rs v. Hoch, 24 Kas. 778, it was decided that the growing of a. hedge is not a purely private purpose. Upon a re-argument of that cause, the question whether the statute was a delegation of legislative power was decided jn the negative. (Noffzigger v. McAllister, 12 Kas. 315; Keyes v. Snyder, 15 Kas. 143; Cooley’s Const. Lim. 116, 124; 17 Ohio St. 271.) Therefore, of the questions now presented, we need pass only upon the third and fourth.

i Heages-valid act-The statute of 1867 is entitled “An act to encourage the growing of hedges and the building of stone fences.” The statute of 1871 is entitled “An act to amend section 2 of an ac^ endtled ‘An act encourage the growing of hedges/ &c.” Upon examination of the enrolled bill, it is apparent that the addition in the printed laws of 1871 of “&c.,” and also the parenthetical explanation “ published as part of chapter 40 of the general statutes of 1868,” are unauthorized insertions. Notwithstanding all of this, the objection to the title is technical — not substantial. The subject of the act is sufficiently expressed therein.

As there were five hundred and seventy-eight ballots cast at the township election in April, 1873, and as only one hundred and thirty-eight votes were cast at said election upon the bounty proposition, it is contended on the part of plaintiff in error that the bounty proposition failed, because it did not receive a majority of all the votes cast at the election. The statute provides:

“ That such bounty shall not be allowed in any county until the question has been decided, by a vote of the people,, whether they desire such bounty, or not: And provided further, That upon a petition being presented to the county commissioners of any county, signed by one-third of the legal voters of said county, as shown by the number of votes cast at the last general election, they shall, by proclamation, call an election, to be held at a general election for township or county officers, and shall submit to the electors the question to adopt or reject the bounty; and upon the ballots shall be written ‘ For the bounty/ or ‘Against the bounty.’ If a majority of the votes [cast] are for the bounty, they shall declare said law to be in full force and effect, and shall-state the day on which the same shall take effect.” (Laws of 1871, ch. 91, §1.)

2' sition/iegaily Within the terms of the statute, we think the bounty proposition is to be declared adopted or rejected, according as it receives, or fails to receive, a majority of the votes cast for or against it. The votes cast for the t-own-ship officers at the election of April, 1873, are-not to be considered upon the bounty proposition. The electors of Marion county were invited by the-proclamation of the county commissioners to vote for or against the bounty. A majority of the votes cast upon that particular proposition were for the bounty. This result having been obtained, it was the duty of the county commissioners of the county to declare the act to encourage the growing of hedges to be in full force and effect in that county. The electors who were present at the polls, at the called election, and, while voting for township officers, did not vote upon the bounty proposition, are presumed to assent to the expressed will of tlié majority of those voting thereon. (County Seat of Linn County, 15 Kas. 500; Rex v. Foxcraft, 2 Burr, 1017; Gillespie v. Palmer, 20 Wis. 544; Cass v. Johnson County, 95 U. S. 369; Rld. Co. v. Davidson, 1 Snead, 638.)

The judgment of the district court will be affirmed.

All the Justices concurring.