24 Kan. 511 | Kan. | 1880
The opinion of the court was delivered by
This action was commenced in the district court of Chase county, by the defendant in error, who was
Many questions are presented and discussed by counsel, but we shall consider but one, because that is both preliminary and decisive. In due season, the right of plaintiff to proceed in the district court was challenged, on the ground of a defect of parties defendant. It was insisted that the principal petitioner for the road, the party who had given bond to pay all costs and expenses in case the road should not finally be established, had such an interest, and was in fact such a party to the proceeding, that no reversal should be made of the order of the county commissioners without his presence in court. He is the one and the only one pecuniarily injured by a reversal. He must lose not only the benefits of the proposed road, a loss which he shares with others, but also all the costs and expenses which have been incurred. It is also said that the commissioners are not a proper party defendant, because it is their order which is challenged ; and the anomaly is presented of a proceeding to reverse the ruling of a court in which the court is the only party defendant. Again, the county makes by a reversal; for, if the road be established, it pays costs, expenses, and damages; if not, it pays nothing, and the principal petitioner bears all expenses,. There are reasons, however, why the commissioners should be held a necessary party defendant in a proceeding to review an order establishing a road. The question of a road is not a merely private one — one affecting a few individuals; it is a matter of general public interest; it is a county question, and the county should be heard; but the title under which the county is sued is the board of county commissioners, etc. The county commissioners occupy a twofold position : they constitute a judicial body, which passes upon the propriety and need of a proposed road, whose judgment thereon may be reviewed by proceedings in error; they
Authority is not wanting. Our road law was borrowed from Ohio. True, there is some difference. The Ohio statute gives certain rights which ours does not; so that decisions in Ohio may perhaps not be considered absolute authority. Yet there is so much similarity in the statutes that a decision of the supreme court of that state carries great weight. In Comm’rs of Wood Co. v. Junkins, 19 Ohio St. 348, it was held that the principal petitioner was a necessary party defendant in a proceeding in error like this. The court say: “Now whatever may be said about the propriety of making the commissioners defendant by reason of some supposed interest of the county in the question, it is very clear that the parties to the controversy decided by the commissioners, and whose rights and interests were thereby affected, are necessary parties to the proceeding to review and modify or vacate the orders made in the case.” And again: “A proceeding to reverse the order establishing the road was a direct attack upon the pecuniary right of the petitioners for the road who had given such bond, as well as the interest they had in establishing the road.” Counsel would distinguish between the Ohio statute and ours, and thus avoid the force of that decision. But the points of difference do not affect this question. In the Ohio statute there is given to the land-owner a right to petition the county board for a review and to have reviewers appointed and also a right of appeal. But neither of these matters affects the question as to who are the parties to these road proceedings, who may challenge, and who be heard in defense. The initiatory proceedings are the same by the two statutes — the petition, the bond, the notice, the order, the viewers. The only difference is, in the subsequent matters of appeal and review.
Again, counsel refer to the case of Comm’rs of Wabaunsee County v. Muhlenbacker, 18 Kas. 129, in which the county commissioners were the only party, and yet the validity of the road proceedings was inquired into and determined. A
Ve refer to the case of The State v. Anderson, 5 Kas. 90, for a further discussion as to the necessity of having all parties directly interested before the court.
For the reasons above given, the judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer to the plea iu abatement.