State ex rel. Bradford v. Board of Commissioners , 35 Kan. 150 ( 1886 )

The opinion of the court Avas delivered by

Horton, C. J.:

This is an action brought in this court by the plaintiff against the defendants, to .compel the defendants' to call an election to vote on the question of subscribing stock and issuing bonds to aid the Walnut Valley & Colorado Railroad Company to construct a line of road in and through the following townships of Rush county: Garfield, Banner, Center, Union, and Belle Prairie. It is admitted that the petition was properly presented, duly canvassed, and .found to contain the requisite number of legal petitioners. The defendants answer that they are willing to order the elections requested whenever they have the right to do so, but are prevented by an injunction issued out of the district court of Rush county on December 29, 1885, in an action therein pending between the state of Kansas, on the relation of D. A. Stubbs, against the board of county commissioners of Rush county, and the limitations embraced in chapter 90, Laws of 1870 — being an act to enable municipal townships to subscribe for stock in any railroad. It was clearly apparent to us, upon the hearing of this case, that said action is a collusive one, and that the defendants could have had the injunction dissolved at any time upon making proper application therefor. The petition is very defective —perhaps fatally so. It does not allege when the election is to be held, in what portion of the county, or in what townships, nor does it name any railroad company to whom the subscription is to be made. It does not name in any way the townships referred to in the alternative writ, nor that there is more than one township; and its averment in that respect is, “An election is to be ordered in a portion of the county to vote bonds to a branch of the A. T. & S. F. R. R. Co.” This petition was presented to the district judge of Rush county on December 28, 1885; and without notice to defendants or appearance by them, he indorsed on the petition, “ Temporary injunction allowed, upon the execution of a bond to the defendants in the sum of one thousand dollars, to be approved by the clerk of the-district court of Rush county, Kansas.— J. C. Strang, Judge.”

No summons was issued prior to the commencement of this proceeding. Instead of issuing a summons and having the district clerk indorse thereon “Injunction allowed,” as required by the statute, the clerk issued the order of injunction. This order attempts to forbid the commissioners of Rush county from calling elections in said townships of Garfield, Banner, Center, Union, and Belle Prairie, but is wholly unauthorized and void, because it is not issued in conformity with the petition or the order of the district judge. It names townships and a railroad corporation not mentioned in the petition; and further, said order of injunction, even if properly issued, is no obstacle to the granting of the elections, because the statute provides that an injunction shall not operate until the party obtaining the same shall furnish an undertaking, executed by one or more sufficient sureties. No proper injunction undertaking was given prior to the commencement of this action. All pi'oceedings had in the case pending in the district court of Rush county subsequent to January 6, 1886, the date of the service of the alternative writ of mandamus, cannot prejudice the rights of plaintiff.

The'other objection to ordering the elections in the several, townships, is also without any force. .The petition was presented under and in accordance with the provisions of an act of the legislature of the state of Kansas, of February 29, 1876, entitled “An act to enable counties, townships and cities to aid in the construction of railroads, and to repeal section 8 of chapter 39 of the Laws of 1874,” and the amendments thereto. The law is the latest expression of the legislature, and the limitations in chapter 90, Laws of 1870, cannot apply or control the amount of bonds te be voted for under the elections prayed for.

It is not necessary to decide whether chapter 90, Laws of 1870, has any operation at this time, or whether it is wholly repealed. It is sufficient for this ease to say that the petitions presented to the defendants comply, in all respects, with the provisions of chapter 107, Laws of 1876, and the amendments thereto, and that under the statute it is clearly the duty of the commissioners of Rush county to call the elections demanded.

Let a peremptory writ of mandamus issue against the defendants.

All the Justices concurring.