65 P. 694 | Kan. | 1901
The opinion of the court was delivered by
The city of Emporia, a city of the second class, desirous of extending its boundaries, presented its petition to the judge of the district court of Lyon county, under section 1, chapter 69, Laws of 1886 (Gen. Stat. 1901, § 1052), asking said judge to make a finding as to the advisability of adding certain territory therein described to the city, which petition included eleven acres, at that time the rural
The first contention is that the law authorizing said proceedings before the judge of the district court is unconstitutional and void, because it was an attempt on the part of the legislature to impose legislative power upon the judicial department of the state government. This question has been determined by this court against the contention of plaintiff in error, and is no longer an open one in Kansas. (Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736; City of Emporia v. Randolph, 56 Kan. 117, 42 Pac. 376.)
The second contention of plaintiff in error is that, because the judge of the district court did not include in his finding the entire tract belonging to plaintiff in error, it was equivalent to a denial of the whole petition. No line of reasoning is suggested by which we
The two propositions presented to the judge for his determination were : (1) Whether it was of interest to the city of Emporia to include within its corporate limits these several tracts of land, or a portion of any of them; (2) whether it would cause manifest injury to the person owning any of said several parcels of real estate, or any portion of any of them, to include such tract or part thereof in the city limits. These questions the judge had to determine. Pie found in regard to a part of the tract belonging to plaintiff in error that it would do no manifest injury to him to have a portion of it included within the corporate limits of the city.
Another contention is that the journal of the proceedings of the council containing the record of the passage of such ordinance does not show that the final vote was taken by yeas and nays, and therefore it could not have been properly passed. The record does show that all the councilmen were present and voted, and that this ordinance was passed by a unanimous vote. We think this is sufficient.
It is also contended that, by the exercise of this power, the homestead exemption of the plaintiff in error was reduced from eleven acres to one acre; that under the constitution one residing outside the limits of an incorporated city may hold exempt from forced sale 160 acres; that a.resident of a city, under the same provisions of the constitution, can only have exempt one acre, with the improvements thereon.
Whether the homestead of plaintiff in error is reduced to one acre by incorporating it within the city is a question that cannot be litigated in this case. The ordinance does not take from him any land which he
The final contention is that the taxes which plaintiff in error will be compelled to pay in the city are in excess of what he would be required to pay if left in the township, and that such fact is conclusive evidence that it would be of manifest injury to him to be brought into the city. This argument, if true, would preclude every city in the state from extending its boundaries. But the judge of the district court had a hearing, when this and all other questions of fact of a like character were submitted, and his findings against the plaintiff in error are as conclusive upon this court as are the findings in the trial of any other cause.
We find no error in the proceedings or judgment of the court below. It is therefore affirmed.
