38 Kan. 562 | Kan. | 1888
Opinion by
The defendant in error brought this action against plaintiffs in error, upon several township warrants issued by Winfield township to pay for the erection of a certain bridge. On January 23,1879, Winfield township made a contract with S.- Kavanaugh to construct an abutment to a bridge, at that time within the limits of the township. It then also embraced the city of Winfield, a city of the third class; the governor, by proclamation on the 27th of February of the same year, declared it to be a city of the second class. Before that time the contract of Mr'. Kavanaugh had been completed, and the work accepted by the township. Upon the 19th of
There is no complaint of the apportionment of the judgment ; it is simply contended that there should have been no judgment at all against Walnut township. From the condition of the record, we can consider only the alleged errors that arose from the overruling of the demurrer to the petition. The township of Walnut was bound to meet the liabilities of Winfield township, being virtually the same municipal corporation. This liability could not be divested by the change of boundary, or change of name; the warrants given by Win-field township were valid obligations against Walnut township, subject possibly to the limitations of difference in territory, and difference in valuation of property. By the petition it was not necessarily inferred that the township officers of Win-field township were residents of the city of Winfield at the time they issued the warrants, but it seems to have been agreed in the arguments of the parties that they all did live within the territorial limits of the city of Winfield. We think that is
“By the mere passage of the law the town is completely constituted, entitled to the rights and subject to the duties and burdens of a town, whether the inhabitants are pleased or not.”
In People v.Wren, 5 Ill. 279, the question decisive of the case was, whether the county of Marquette was an organized county. By an act of the legislature it was created out of a portion of Adams county, but had failed to elect county officers. The court held that the act of the legislature created the county at once, and it was not necessary that there should
“ The act creating the new county is susceptible of but one construction. The intention of the legislature is expressed in the most positive terms. It declares that a new county is absolutely created, etc.”
This decision was only arrived at by a divided court. Mr. Chief Justice Wilson and three of his associates dissented, and very clearly gave his reasons for dissenting. He says:
“But while I admit that the legislature may destroy a county, I am not to be understood as admitting that they can deprive any portion of the territory of the state of a county organization and government. This would be to place a portion of the citizens out of the pale of law and government, and would produce a complete state of anarchy. Such an act of the legislature would, in my opinion, be an abandonment of its highest obligations, and an infringement of the spirit of the constitution, if not its letter. The only manner that occurs to my mind, by which a legislature can destroy a county, is by annexing it to one or more organized counties. No interregnum would then take place; the government of the county to which it was annexed would be extended over and embrace it, simultaneously with its annexation, and thus no evil or inconvenience would occur.”
It will be remembered that the township of Winfield still retained its township organization. It was not organized out of the territory of another municipal corporation, as was the town of Gorham and the county of Marquette in the cases cited. It was the city of Winfield taken from the territory of the township of Winfield, which was declared to be a city of the second class, “subject to the provisions of an act to incorporate cities of the second class.”
The defendant township claims that the cause of action is barred. The petition is perhaps comprehensive enough to state a cause of action upon the original contract made January 23, 1879, or upon the township warrants'issued on the 19th day of March, 1879. This action, it will be remembered, was commenced March 14, 1884. Counsel for the township support this claim by an exceedingly ingenious ar
A township warrant itself, aside from any question of acknowledgment in writing, is not barred until five years after it is issued. It is a contract in writing — a promise to pay — and of itself is such an instrument as to constitute a cause of action. (Comm’rs of Leavenworth Co. v. Keller, 6 Kas. 510.) This is an agreement in writing with Kavanaugh, executed in the only manner prescribed by law for a township to act. It is not a negotiable instrument, but it can be assigned, and the plaintiff succeeded to all the rights of Kavanaugh as his assignee; and by the petition it is averred it was given as a consideration of a contract fully performed, and it is therefore for the purposes of this action a valid legal instrument in writing.
This disposes of all the questions in the case that we deem material. *We recommend that the judgment of the lower court be affirmed.
By the Court: It is so ordered.