115 Kan. 531 | Kan. | 1924
The opinion of the court was delivered by
This is an original proceeding brought in this court by the attorney general challenging the authority of the board of county commissioners of Franklin county to use what is called the state-aid road fund in payment of the cost of constructing bridges unconnected in any way with the construction of a highway, and incidentally questioning the action of the board in dissolving a federal road district which had been organized, a road partly built, bonds issued to pay for the construction and levies made and collected to pay the bonds, and after the attempted dissolution to appropriate the moneys provided for the road project to the building of bridges. The facts about which there is no dispute are in sub
It is contended by the defendants that the federal-aid road district number 1 was legally dissolved and that the state-aid road fund has become available for the improvement of county roads, including the building of bridges. While the primary purpose of the action is to prohibit certain use of the state-aid road fund, the determination of that question is dependent to such an extent upon whether the road district has been dissolved and the project ended, that it seems to be necessary to consider first the order of the board attempting to recall the original petition. The pertinent part of the statute under which that action was taken is that when the state-aid road fund has
"... accumulated or may hereafter accumulate, to such an amount more than sufficient to care for any federal road project under construction or for which petitions have been filed and have been declared a road of public utility: Provided, That a majority of the landowners in any benefit district may by petition recall such petition in said county, the board of county commissioners, may from time to time, by resolution apply such portion of said fund, as in their judgment is deemed proper, to the construction, maintenance, and improvement of county roads in such county and thereupon said state-aid road fund shall become county money to be used within the limitations of this act.” (ft. S. 68-601.)
The petition for the recall had the requisite number of signatures and if the district could be dissolved and the project ended by the action of the board at that stage of the proceedings, it has been done. The petition sought to be recalled initiated the proceeding by which the district was created and the federal-aid road project
As to the use of the state-aid road fund, the legislature has declared that it is intended for the construction of permanent roads .and to meet federal aid that may be granted for the construction and maintenance of such roads, and that when the fund accumulates to an amount in excess of that necessary to care for any federal-aid
As to the road drag fund the statutory provisions are specific and about them there appears to be no actual controversy between the parties to the action. In answer to one suggestion it may be said that such an improvement cannot be regarded as a state improvement subject to the constitutional limitations in respect to the state engaging in internal improvement. (The State, ex rel., v. Raub, supra.)
The judgment is that federal-aid road district, Franklin county, number 1, was not dissolved, by the resolution of recall of the board of county commissioners, and further that the board be ousted from the exercise of usurped authority as to the disposition of the state road fund.