120 Kan. 356 | Kan. | 1926
Lead Opinion
The opinion of the court was delivered by
The action is one of mandamus to compel officers of Linn county, having authority to do so, to proceed with the construction of a federal aid benefit district highway.
On October 22, 1925, defendants were served with an alternative writ of mandamus commanding them to surface the highway, build seven designated bridges and otherwise complete the highway, or show cause why they should not do so. Defendants filed a motion to quash the writ. The state moved to advance the cause for hearing. Defendants filed a protest against advancement, stating that, if required to make a return, they desired to raise issues of fact which would require the appointment of- a commissioner to take testimony, and the taking of much testimony, and the cause would
“There are many allegations in the writ which, while admitted to be true by the motion of the defendants to quash said writ, to wit:
“The averments that the. dirt fills along said road are deteriorating for want of surfacing; that the present bridges are unsuitable for present traffic and require immediate construction of other bridges; that there is available in the treasury of Linn county, from current taxes, an abundance of money with which to construct the bridges demanded; that the board of county commissioners fail, neglect and refuse to proceed with the doing of the things provided by law; that such failure on the part of the board is without lawful excuse; that said board has abandoned the construction of said road; that said board has diverted funds available for said road to the construction of other roads in the county; that said board has abandoned the surfacing of said road and bridges and the building of said bridges for the purpose of constructing another road; and that said board, unless the relief demanded be granted, will abandon the construction of said road;
are subject to denial, as not being in fact true, and will, if the plaintiff has stated a case on paper, be subject to proof and determination.”
It may be assumed that other facts stated in the writ are not subject to denial, and from the writ it appears that the highway is a portion of the much-traveled highway from Kansas City, Mo., and Kansas City, Kan., to the Ozark mountain district, to Oklahoma, to Texas, and to the Southwest. The Linn county segment extends from a point on the south line of Miami county, some seven and one-half miles northwest of La Cygne, to La Cygne, and thence east and south, through Trading Post, Pleasanton and Prescott, to the Bourbon county line. A hard-surface road has been constructed from the southern terminus to the Oklahoma state line, and Miami and Johnson counties have under construction hard-súrface roads to the two Kansas Citys. The highway was established on April 25, 1921. In the year 1922 contracts were let for grading and culverts, aggregating $247,588.25. This grading and culvert construction was completed with reasonable dispatch the full length of the road. In December, 1922, and January, 1923, contracts for bridge structures were'let to the amount of $90,042.24, and these structures have been
It must not be assumed that all the bridge work which has been completed was completed voluntarily. On December 28, 1922, contracts were let for three bridges. In January, 1923, a change in membership of the county board occurred, and on January 8 a resolution was passed declaring the contracts were not binding, declaring the board had no power to make orders leading up to the contracts, and undertaking'to revoke the orders and contracts. The state brought an action of mandamus in this court to compel performance of the contracts, and defendants presented many reasons why they should not do so. On March 22, 1923, the court declared that none of the reasons was sound. The court assumed defendants would then build the bridges, and a peremptory writ was not issued, but jurisdiction was reserved to make such orders as might be required. (State, ex rel., v. Linn County, 113 Kan. 203, 213 Pac. 1062.) The bridges were built, but nothing else has been done which indicates sincere prosecution of the work of constructing this highway. At the hearing on the motion to quash, one of defendants’ attorneys stated that proceedings had been initiated to* build another bridge. One of the plaintiff’s attorneys said the move had been made since the alternative writ was issued.
The first ground of the motion to quash the alternative writ is that the board of county commissioners has never determined the width of the road or selected the kind of surface proposed in the petition for the road. The second ground is that the writ exhibits no plan, specification or estimate for the construction of any type of surfacing adopted or approved by the state highway engineer or any officer of the federal government. The .third ground is that the judgment and discretion of the board of county commissioners respecting the type of surface is absolute and uncontrollable by any authority. The fourth ground is that, while plans and specifications for the bridges necessary to completion of the highway have been made and approved, what bridge shall be built and when it shall
The petition called for a roadway sixteen or eighteen or twenty feet wide, surfaced with concrete, bituminous macadam, gravel, or brick. It will be recalled the petition was approved and the road was established on April 25, 1921. It is now beyond the middle of February, 1926. The grading has had time to settle; if the grading has not deteriorated through action of the elements during the passing years, it is likely to do so; and conceding that the county board is imbued with unaltered determination not to abandon completion of the highway, the fact that the board has not progressed far enough even to take up for consideration the primary subjects of surface construction, width of way and kind of material, indicates to the court that a writ of mandamus may be helpful by way of stimulating fervor not to abandon completion of the road.
The state highway commission has been given general supervision over construction of this road and its bridges, and specific authority in certain respects, and the federal bureau has certain authority, exercisable as a condition to granting federal aid. To that extent the county board does not have “absolute and uncontrolled judgment and discretion.” It is the duty of the board to act, to submit its action for approval, and-in the event of disapproval, to act again. The law is a road-building law, not a road-blocking law. It contemplates no deadlocks which will thwart its purpose, but assumes a conception of official duty which will make that purpose prevail.
When the board was here before, resisting the doing of those things which undone would practically defeat realization of the highway contemplated by the approved petition, the court told the board the county was under obligation to build this road and to provide the bridges necessary to its usefulness, the obligation to provide the bridges being implied from the obligation to build the road
The motion to quash is devoid of merit. The filing of it, the written protest against a speedy hearing, and application for a long time in which to prepare an answer which will indefinitely delay determination of a matter of great interest, to the litigants and great importance to the public, are suggestive of a practice which this court does not tolerate. The first and second grounds of the motion to quash are confessions of nonperformance of duty, and the court deems it proper that the county board and its advisers should now turn their attention to candid consideration of a policy of action instead of inaction.
A peremptory writ of mandamus will issue, commanding the defendants to proceed forthwith and diligently to complete construction of the highway described in the alternative writ. For the present the peremptory writ will be in the general terms stated. Jurisdiction of the cause is retained for the purpose of making the writ specifically effective should that be necessary. The costs of the action thus far made are taxed to defendants.
Dissenting Opinion
(dissenting): I think the motion to quash should be overruled, but that the peremptory writ should not issue. The defendants should be given an opportunity to answer and if the answer should present an issue, testimony should be taken and final judgment reached after a final hearing. It is my judgment we shall then be in better position to determine the rights of the parties and the specific order to be entered than we are at this time.