20 Kan. 71 | Kan. | 1878
The opinion of the court was delivered by
On 20th February 1867, the legislature-of Kansas passed an act providing among other things, “that any person planting an Osage orange- or hawthorn-fence, * * * and successfully growing and cultivating the same, * * * shall receive an annual bounty of two dollars for every forty rods so planted and cultivated, * * * the bounty to commence as soon as said fence will entirely resist cattle, and continue for eight years thereafter. * * * This section shall apply to all hedges already planted, but not yet come to maturity sufficient to turn stock, as well as to those hereafter planted.” (Laws of 1867, page 99, §2; Gen. Stat. 495, § 2.) On the 2d of March 1871, the legislature passed another act providing, “That section 2 of the above-named act (published as part of chapter 40 of the general statutes of 1868,) be so amended as to read as follows.” Then follows section 2, reenacted in full, and providing substantially the same as the above-quoted section, except at the end of the amended section there are two provisos, the first of which
On 3d August 1875, Cyrenus Hudson, (plaintiff below and defendant in error,) presented to the board of county commissioners of Jefferson county his written claim in words and figures as follows:
“State op Kansas, Jeppeeson County, Aug. 3,1875. Jefferson County, to Cyrenus Hudson, Dr.:
“ 1875: Aug. 3d, for bounty on hedge for 1872, . . $35.00
“ “ “ “ “ “ “ 1873, . . 35.00
“ “' “ “ “ “ “ 1874, . . 35.00
“Total,..............$105.00.”
The county board examined this claim, and refused to allow it. Hudson then appealed to the district court, where the case was tried before the court without a jury, on the following agreed statement of facts, to-wit:
1.-The plaintiff had planted on his farm in Jefferson county, state of Kansas, 700 rods of hedge fence, and had successfully grown and cultivated the same. On the 1st day of March 1870 it entirely resisted cattle, and has been since that time kept up and in good repair, and during all that time until now has successfully resisted stock.
2.-The township assessor for the year 1870 adjudged the merits of said fence, and pronounced it sufficient, and entered •on his tax-roll a minute of the same opposite the description of the land on which the fence was planted.
3.-The township assessor for the years 1871, 1872, 1873, and 1874 respectively, each adjudged the merits of such fence, and pronounced it sufficient, and entered the necessary minute on the tax-roll for the proper year.
4.-On the 3d of January 1871, the plaintiff Hudson presented to the board of county commissioners a claim in writing in substantially the same form as the one on which this action is founded, if being for the sum of $35 for the bounty for the year 1870 on hedges under section 2 of an act entitled “An act
Upon this agreed statement of facts, the court found the following conclusions of law:
lst.-The plaintiff is not entitled to recover upon the first item of his account as presented to the board of county commissioners.
2d.-The plaintiff is entitled to recover from the defendant the sum of seventy dollars, and that amount is due him from said defendant upon the second and third items of his account as presented to the board of county commissioners.
The court rendered judgment, that the plaintiff have and recover of and from the defendant the sum of seventy dollars and his costs in said action. A motion for a new trial was made and overruled, and the county now brings the case to this court.
It will be perceived that there was no showing before the county board, nor even in the district court, that the plaintiff had ever planted or cultivated any “Osage orange, or hawthorn fence.” Nor is it shown of what material his hedge was composed. Nor is it shown when he planted such hedge, whether before or after the passage of the act of 20th February 1867. If before, and if not in pursuance of such act, then of course he cannot claim that the passage of the act, and the planting of the hedge, must be taken together as constituting a contract which could not be impaired by sub
The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be rendered in favor of the defendant on the agreed statement of facts.