Greeley Township v. The Board of Commissioners, 26 Kan. 510

Greeley Township v. The Board of Commissioners

26 Kan. 510 | Kan. | 1881

The opinion of the court was delivered by

Horton, C. J.:

On November 20, 1871, the board of county commissioners of Saline county laid out and established a public highway in Smoky Hill township, in that county; and at the point where the highway intersects the Saline river, near the township line between townships 13 and 14, south, of range No. 2, west, a bridge was built at an expense exceeding $2,000, to enable the public travel to cross the river. On November 16, 1878, the county commissioners of Saline county detached a portion of the territory from Smoky Hill township and constituted a separate township, called Greeley. On the 4th day of April, 1881, there was presented to the commissioners a petition signed by over two hundred and fifty residents of the county of Saline, representing that the bridge heretofore mentioned was not upon the line of travel, and did not accommodate a majority of the per*513sons in the neighborhood, or the traveling public generally, and asking that they might be allowed to remove and relocate the bridge, at their own expense, to a point about a mile from its present location, and where the public road crosses the Saline river south of the railroad bridge. On April 15th the township trustee and township clerk of Greeley township presented to the commissioners a remonstrance. against any removal of the bridge, alleging that for the purpose of aiding in the construction of the bridge Smoky Hill township gave $200 in cash and voted bonds to an amount exceeding the $1,000 appropriated by the county for the bridge; and that the county and township conjointly constructed such bridge; that more persons would be inconvenienced by the removal of the bridge than were inconvenienced by having the bridge remain where it is. On April 18,1881, the commissioners, after a hearing, decided that the bridge as located did not accommodate the traveling public; that the removal and location of the bridge would be a public utility, and of convenience to the traveling public; and that the prayer of the petitioners was reasonable, and ought to be granted. They therefore ordered that when the petitioners should furnish good and sufficient security for the payment of the expense incidental to a removal and relocation of the bridge, that the necessary steps would be taken to remove the bridge out of Greeley township, and relocate the same where the county road south of the railroad track intersects the Saline river. Afterward, proceedings were commenced by petitioners in error to the district court of Saline county, to reverse this order of the commissioners; and such order having been affirmed by that court, the case is brought here for our decision.

Two questions are presented: First, Has Greeley township the right to maintain this action ? Second, Has the board of commissioners of Saline county the sole and exclusive jurisdiction over the removal of the bridge in controversy ? The bridge is located in Greeley township, and Greeley township embraces a portion of the territory that constituted Smoky Hill township at the time the bridge was constructed. Smoky *514Hill township voted aid for the bridge, and constructed it jointly with the county, and therefore the bridge is not exclusively a county bridge. We may assume that the bonds voted by the township to assist in building the bridge were legally issued, and before such issuance the question of building this particular bridge must have been submitted to a vote of the / people, at a time and place fixed by the township officers. (Laws 1870, ch. 33, § 3.) After the bridge was thus constructed, we do not think either the township officers or the county officers could remove the bridge at pleasure. If so, a township might issue its bonds upon a vote of its people, and in conjunction- with the county erect a bridge at a point designated in the vote, and the next day, without the consent of the people whose vote favoring the construction of a bridge at a particular place had been obtained, and in defiance of the wishes of the voters, the board of county commissioners could remove such bridge out of the township, or to any other part of the county, at its will. Clearly, no construction so unfair to the voters of the township ought to be given to the statute, and we do not think such a construction allowable. If Smoky Hill township continued with its territory unimpaired, as it existed at the construction of the bridge, it would have such an interest in the bridge as to permit it to interfere against its removal. Now Greeley township forms a part of the original territory which voted aid for the bridge, and within the territory of this township the bridge is located. We therefore think that it has sufficient interest in the bridge to maintain this proceeding. The judgment of the district court must therefore be reversed.

All the Justices concurring.