199 P.2d 521 | Kan. | 1948
The opinion of the court was delivered by
In an original proceeding in mandamus, the township board of Ash Creek Township, Ellsworth county, seeks a writ directing the state auditor to register $9,000 in general obligation bonds of the township issued to secure funds for purchasing a road grader. The question is whether the township had statutory authority for issuing the bonds.
Formal averments of the petition not in dispute need not be recited. Briefly summarized, the facts alleged are that at a special meeting on March 19, 1948, the township board of highway com
It is elementary that subdivisions of the state, being creatures of the state, have only such powers as are conferred upon them by statute (Kansas Power Co. v. Fairbanks, Morse & Co., 142 Kan. 109, 45 P. 2d 872, and cases cited on page 115). It is also well settled that bonds may be issued only where their issuance is specifically, or by clear implication, authorized by statute (Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 239 Pac. 760; School District v. Robb, 150 Kan. 402, 93 P. 2d 905).
The statute requires that all municipal bonds shall recite the authority under which they are issued (G. S. 1935, 10-112). The instant bonds recite that they are issued under the authority of chapter 10, article 1, sections 68-526 and 68-532 of the General Statutes of 1935, as amended, and sections 68-151g and 10-1116 of the General Statutes, 1947 Supplement.
Section 68-526, supra, provides that township boards of highway commissioners shall have general charge and supervision of township roads, bridges and culverts in their townships, and shall “pro
Section 68-532, supra, provides that “in letting contracts and in employing labor for the construction or maintenance of township roads” the township board shall follow the same proceedings and regulations provided for county roads as far as the same are applicable. (Italics supplied.) This statute does not relate to bond issues and in any event is not applicable to the purchase of road machinery.
Section 68-151g, supra, relates wholly to the issuance of bonds by certain counties for the purpose of providing funds for highway work. It has no applicability to townships.
Section 10-1116, supra, is lengthy and need not be set out in full. It provides for certain exemptions from the provisions of the cash basis law (ch. 10, art. 11), one of which is that the act “shall not apply to contracts and indebtedness created, when payment has been authorized by a vote of the electors of the municipality, or when provision has been made for payment by the issuance of bonds as provided by law.” Such a provision clearly does not avoid the necessity of a statute authorizing the issuance of bonds. It simply relieves certain contracts and indebtedness authorized by popular vote and payment thereof by bonds issued “as provided by law” from the provisions of the cash basis law.
The plaintiff argues that the power to issue bonds for the purchase of road machinery should be implied from the provisions of section 68-526, supra, which gives township boards charge of the construction and maintenance of township roads and directs the board to procure material and equipment required for that purpose. In support of this contention, plaintiff calls attention to section 68-548, G. S. 1935, which penalizes any officer who fails to perform his duty as required by law. We find no basis for holding that these statutes carry an implied authority for issuance of bonds.
Counsel for the plaintiff calls attention, forcefully, to the practical difficulty which was encountered by the township board, under the facts shown, in discharging its duties efficiently in the construction and maintenance of the highways. Assuming that to be true, we can consider here, of course, only the issue of law involved. Questions of public policy are for legislative and not for judicial determination.
The writ must be denied, and it is so ordered'.