The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-01-08

BANGED value Of such property. but u Is
clear this principle is Only apDhcabie
when the benefit Is commensurate Win
the burden. when tiiIt which IS re-
ceivpd hy he land owner Is equal or
s,rnerior in value 10 the sum exacted; Tor
il the SUM exacted be in excess tnen 10
chat extent most jnconte~t,1ly private
properly * assumed by the puol.c: NorHS
10 this excess can It be successfully main
tanned that such imposition is legitimate
a. an exercise of She power OF taxation
Such 40 imposition has one OF the essen
tiai characteristics Of = tax.
On the other hauo. the court OF Appeals
of New York. through Chief Justice Fol
ger. in de errnluiug a Ike question arising
uDOu a like state OF facts, uses the rOiioW-
ins, language: another point % the APP
Deliant i tnaU the ordinance Is yOIu because
IL Durnorts 10 direct tax Tor ne eXpendi-
tufr. regardless of the question whether
the benefit equals the expenditure; ~
this point il IS asserted that II must he de-
ternlined amon2 the first thugs TO be
done. that the benefit Of tie proposed
work to adjacent property VIII equal or
- beyond the expense u tue WORK, ana
Ina. nobody bat the common council can
determine that question. lie principe
that the amount 81 expenditure 20 DE as
sessed upon an adjacent owner must not
be more than the benefit he gets from The
work done we need not affirm or question
now We do not perceive how the princI-
pie is brought into play IN this case me
petitioner does not allege AS h ground Tor
relief that he is assessed more than he mas
been benefited We have found no proof
in the appeal- book that he is. The COM
mon council, in which was the authority
ordered the work TO be done, and inst the
eXDense of il be assessed on The property
benefited. In the absence or allegation
and proof, we must assume that TINS ltSlS-
latiYe act was done with legislative pro-
vision, and that the legislative judgment
was that the benefits would be rs great as
the cost. Certainly we cannot say that 1t
was not, without some facts On which 10
rest"
So it will be observed that upon the
proposition whether the act on its face
shows that tine costs do not exceed the
benefits is one upon which the courts are
divided. In the absence of any deciara-
tion or intimation on the part OF The
supreme court OF the st ate of Kansas, the
court in this case would have to determine
which or the authorities before cited to
follow.
Upon the question, what if anything has
been said hy our supreme court concern
ing a legislative act of like character. the
court fluids that the nearest approach to
the same is in the case of Joseph Sargent.
county clerk OF Saline county, against
Isaac Birch. The action in controversy
WIS one which arose under the Drainage
act. The Drainage act of 1879. which may
be found in chapter 81 OF the compiled
laws of 1872 page S31. 1t was an action
brought by Birch against Sargent as
county clerk OF Saline county 10 compel
him to issue TO plaintiff warrant for
S94 80, directing the treasurer OF the coun-
ty to pay plaintiff said sum-the same be-
ing due from the county as its proportion
ate share of the cost of a certain ditch,
which had been construct ed in accordance
with the provisions of chapter 81 compiled
laws OF 1879 The opinion of the court
was delivered by Justice Valentine, who
says: The real question in this case IS,
however. much narrower than the one
stated by the plaintiff in error. 1t is as
follows: Is the said chanter so far constr
tutioual that county may become liable
under 1t, through its county clerk, TO pay
its propOrtionate share of the cost of con-
structing a ditch, which ditch is
ance with said chapter. and
drains and benefits public county road?
To the extent that we have stated the
question, we think the chapter Is constl-
tutional: and whether it is unconstitu-
tlOnal or not in any other respect, we need
not consider.
An examination Of the act in contro-
FeTSy anu but dIdibdSt dCO VI lOaO NiiA
show that with some immaterial differ
ence they are the same. | cannot reach
any other conclusion. therefore, than that
the supreme court of Kansas, has seen fit
to follow the principle laid down by the
New Jersey court
1t is also urged with seriousness and
with force that the board of county COM
missiOners have not complied with tue
terms of the act IN controversy. 1t IS
said that the board of county commission
eIs have established two bitches instead of
one, and that the same Is contrary to the
letter and the spirit of the act in c0ntro-
versy Section two Of the act in contro-
versy provided that "beiOre the county
commissioners of any county shall take
any steps towards locating or establishing
any ditch, drain or water course there
shall be filed with the county clerk a pc
titiOa of one or more persons owning lands
adjacent TO the line OF any such proposed
ditch drain or water course, setting forth
the necessity of the same, with "A SubStan-
tial description Of of its proposed starting
point, route and terminus, and shall at
the same time die bond with good and
sufficient SuretieS TO the acceptance of
said county clerk, conditioned to pay all
expenses incurred in case the county conf
missiouers shall refuse to grant the prayer
Of the petitioner,
The query therefore, arises upon the
contention made by counsel for plaintiff is
whether the establishment Of the bitches
in question are contrary TO the words and
the intent OF the statute a. manifested in
section two 10 support of their conten-
ton, the attention OF the court is called to
section eleven, which reads:
THAT said ditch, drain or water course
shall be opened and worked, and Compen-
sation for land used in the construction of
the sams paid within the time specified in
the order OF the probate judge; and at the
expiration of such term, and such work
remaining undone, and the probate judge
being notified OF that fact,
shall Immediately give notice of
the sale Of such work by
sections, or parts of sections, of said
ditch, drain or wateT-course to the lowest
bidder, by written handouts The time OF
such sale should not be less than ten nor
more than fifteen days from date OF notice,
and the place OF sale shall be at the pro-
posed terminus of such ditch, drain of
wster-Course IN said county"
Now, II Is said that If there are two
bitches In controversy. then there would
be no way by which section II could be
complied with. We are first, then, to deter
mine whether there are two bitches in con-
troversy. The court Is of the opinion,
under all the facts IN the case. giving spe-
claI emphasis to section II in relation 20
the sale of TIE property, that of necessity
there are two bitches in controversy. But
1t is SAID Dy counsel for defendant, quot
ing a certain legislative enactment of this
state that where the singular is used the
plural may he employed. With all the
Difference to counsel for defendant, the
court does not think il vii. apply in case
OF this character. 80 you must observe.
therefore. that the query Is whether or not
two bitches can be established under one
petition. The court Is OF the opinion that
as the board OF county commissioners are
the parties 10 whom he application is to
be made for tue e.. 1biISHme1E of bitches,
and rs In the first instance the question of
The establishment Of bitches is TO be de-