88 P. 62 | Kan. | 1906
This case presents the question of the constitutionality of the section of the statute giving an appeal to the district court from the action of the board of county commissioners in extending the boundaries of a city of the third class. The statute, so far as it bears upon this matter, reads:
“That whenever the city council of any city of the third class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of the city, present a petition to the board of commissioners of the county in which said city is situated, setting forth by metes and bounds the territory sought to be so added, and praying that such territory may be added thereto. Upon such petition being presented to said board, with proof that notice as to the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, they shall' proceed to hear testimony as to the advisability of making such addition; and upon such hearing, if they shall be satisfied that the adding of such territory to the city will be to its interests and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall make an order declaring said territory a part of the corporate limits thereof and subject to the laws and ordinances pertaining thereto.” (Gen; Stat. 1901, § 1172.)
“Any person feeling himself aggrieved by the order of, such board of county commissioners may appeal from such order to the district court of the county in which said city is located, by filing in the office of the clerk of the district court of said county, within ten days after such order is filed in said clerk’s office, a good and sufficient bond, conditioned for the payment of all costs.” (Gen. Stat. 1901, § 1175.)
Proceedings were instituted in accordance with these provisions for the purpose of adding certain territory to the city of Glen Elder, and an order was made by the commissioners for such change. C. P. Nash and
Does the act import that the commissioners have an option to say that the change of boundary shall or shall not be made — that the change shall be made, if at all, by their fiat? Literally read, it is mandatory. It declares that if the commissioners find that the change is beneficial for the city and not harmful to individuals they shall make an order to put it in effect. Nevertheless the language seems to suggest the exercise of discretion on their part, and inasmuch as they constitute a body upon which legislative powers may be devolved the statute may be regarded as so far ambiguous in this respect as to justify a resort to external evidence to arrive at its true meaning. An important, and indeed controlling, consideration is derivable from the history of the legislation. In 1885 the legislature passed an act (Laws 1885, ch. 97) relating to the ex
It is but reasonable to suppose that the legislature which saw fit to change the form of the second-class-city act so as to make it plain that the judge to whom was presented a petition for an extension of the corporate limits acted only judicially, and at the same time adopted the discarded language to define the duties of the county commissioners in the case of cities of the third class, had in mind the different capacities of the judge and the commissioners with respect to the possibility of devolving legislative functions upon them, and intended that effect should be given to the different wording of the two statutes then enacted. If it had been the purpose that the commissioners, like the judge, should only find upon the facts, it must be presumed that under the circumstances stated such intention would have been so clearly expressed as to have been free from doubt. We conclude that the commissioners do exercise a legislative power in determining that a change of corporate boundaries shall be made.
It remains to consider the effect of the appeal. The
“The term ‘appeal,’ as used in the constitution, is a general term denoting not' only what are technically denominated appeals, as contradistinguished from a certiorari writ of error or petition in error, but any proceeding by which a cause is sought to be removed from probate and justice courts to superior tribunals for the purpose of reexamination.” (Crane v. Giles, 3 Kan. 54, 55.)
“The term ‘appeal’ is, in the several states, used in very different senses, and has to a great extent, in statutes and decisions, lost its distinctive meaning, having become a generic term for all forms of rehearing, or else nearly or quite synonymous with ‘error’ or ‘new trial.’ ” (Western Cornice & Mfg. Works v. Leavenworth, 52 Neb. 418, 422, 72 N. W. 592.)
“ ‘Appeals’ in reference to actions at law, although expressed by a term originally derived from the civil law, are purely creatures of our statute law, and consequently . . . our various statutes must be construed together in order to determine correctly the import of the term in any given statute. ... It has then no uniform import as to the mode of trial in our system, whatever may have been its technical import in the civil law, from whence it is derived.” (Carnall v. Crawford County, 11 Ark. 604, 622.)
An illustration of the use of the term in our statutes in an untechnical sense is to be found in the divorce law (Gen. Stat. 1901, §5140), where it is employed with obvious reference to a proceeding, in error.
The present statute is silent concerning the effect of
The appeal taken in the case should not have been dismissed, for it was effective at all events to bring before the district court for review the question whether the change ordered by the board would cause
The judgment is reversed and the cause remanded for further proceedings.