State ex rel. Kellogg v. Board of Commissioners

26 P. 483, 45 Kan. 731, 1891 Kan. LEXIS 292

Opinion

Per Curiam:

The question in this case comes up on a motion filed by plaintiff for judgment on the pleadings, and therefore the only question for this court to decide is, whether the petition and answer entitle the plaintiff to the relief sought. This depends upon the construction of chapter 98 of the Session Laws of 1889. The title of this act is:. “An act authorizing the county commissioners of Wabaunsee county to appropriate money,” etc. The act itself contains this language: “The county commissioners of Wabaunsee county are hereby authorized and empowered, and it is hereby made their duty, to appropriate such sum of money as may be necessary to keep in repair,” etc. The words, “ it is hereby made their duty,” if given full force, are broader than the title. To sustain the constitutionality of the act, these words must be regarded as nugatory, and the act must be construed as merely authorizing the county commissioners at their discretion to repair the bridge. Under this construction of the act, the county commissioners cannot be compelled by mandamus to make any repairs. (Town of Cantril v. Sainer, 59 Iowa, 26; City of Emporia v. Volmer, 12 Kas. 630; Stebbins v. Mayer, 38 id. 573.)

The peremptory writ will be denied.