Board of Commissioners v. State ex rel. Ives

The opinion of the court was delivered by Horton, C. J.: The trial court determined that chapter 98, Haws of 1891, authorizing the board of county commissioners of Shawnee county to construct and maintain a bridge across the Kansas river, on Quincy street, in the city of Topeka, was void, because obnoxious to certain provisions of article 12 of the constitution of ,the state. This was followed by the further determination that the board of county commissioners had no legal power or authority to construct a bridge* under the provisions of said chapter 98, across the Kansas river, on Quincy street; therefore, the perpetual injunction prayed for in the petition filed in this case was granted. [503] We think that chapter 98 is violative of both §§ 1 and 5 of article 12 of the constitution, and are therefore compelled to sustain the conclusions of the court below as to the unconstitutionality of that act. In view of the lengthy opinion filed by the learned trial judge in rendering the judgment, which we are asked to review, it is unnecessary to extend, at any length, the reasons for our conclusion. In doing so, we would only reiterate the arguments of the trial judge. We refer to his opinion, incorporated in the statement of the case. Chapter 98 is 3 special act, with all that these words imply. Section 4 expressly confers corporate powers upon the city of Topeka, by making the city liable to property-owners for all damages sustained by them on account of the construction of the bridge, including grading, auchorage, main cables and approaches. Section 3 confers upon the board of county commissioners full control over the bridge and its approaches, and, also, over a part of Quincy street; it therefore deprives the city of Topeka of the corporate rights granted by the general statute organizing or incorporating cities of the first class. (City of Atchison v. Bartholow, 4 Kas. 124; City of Wyandotte v. Wood, 5 id. 603; Gray v. Crockett, 30 id. 138; City of Topeka v. Gillett, 32 id. 431; City of Wyandotte v. Corrigan, 35 id. 21.) In this court, for the first time, the claim is presented that the board of county commissioners of Shawnee county may construct the proposed bridge over the Kansas river, within the city of Topeka, under the general statutes of the state. Upon the findings of fact, this question is not fairly in the record. The board of county commissioners was proceeding under the provisions of chapter 98 when enjoined. Independent of that chapter, no claim was made in the court below that the board had any authority to construct any bridge within the city of Topeka. No such question was discussed before that court, or passed upon. The evidence is not preserved in the record, and the case comes here upon the findings of fact and the conclusions of law thereon. If, however, the question now raised for the first time in this case were [504] properly here, we do not perceive that it would benefit defendants below, plaintiff’s in error. (See Gen. Stat. of 1889, ¶ 555, subdiv. 31; City of Eudora v. Miller, 30 Kas. 494; Gould v. City of Topeka, 32 id. 485; The State v. Railway Co., 33 id 176; Comm’rs of Shawnee Co. v. City of Topeka, 39 id. 197; City of Ottawa v. Rohrbaugh, 42 id. 253.) The judgment of the circuit court will be affirmed. All the Justices concurring.