71 P. 252 | Kan. | 1903
The opinion of the court was delivered by
This case involves the power and duty of a road overseer in repairing, draining and improving highways. The plaintiffs, who owned a farm in Mitchell county, sought to enjoin the road overseer, who was proceeding to' dig a deep ditch in front of their residence and farm. The township trustee was named as a defendant, but,- as he disclaimed any connection with the making of the ditch, the plaintiffs consented that judgment be rendered
“The road overseers of a township are primarily and specially charged with the repair of the public highways. The township trustee is not charged with that duty, except under the provisions of section 7430 of the General Statutes of 1899 (which relates to the matter of obstructions and their removal). . . . Only under it are any specific duties in relation to the repair of highways imposed on the trustees. There are other statutory provisions quite general in terms, and some of them vague in meaning, which charge a-township trustee with the oversight and supervision of the road overseers in the performance of their duty, but in general, and as just stated, it may be said that the trustee is nowhere, except in the instance mentioned, specially charged with the observation of the condition of the highways, or with the repair of defects existing in them.”
As the power conferred on road overseers is general, it necessarily vests them with a broad discretion as to the manner of making repairs. The presumption will be, until it is overcome, that they act within the limits of the law and reasonably exercise the discretion vested in them. While the discretion conferred is broad, and courts are slow to interfere with its exercise, it cannot be arbitrarily or dishonestly exercised. On the other hand, the judgment and discretion should be intelligently and honestly exercised, with a view to carry out the purpose of the legislature and conduce to the public good. If there are several methods of repairing a road, the overseer may select any one of them, that is, within reason, although another may be preferable. The general rule is that when such officers act within the scope of the power conferred on them there will be no judicial interference with their discretion and judgment, in the absence of fraud or some manifest or gross injustice which would constitute an abuse of discretion. (City of Emporia v. Gilchrist, 37 Kan. 532, 15 Pac. 532.)
The judgment will therefore be reversed, and the cause remanded for a new trial.