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

| establishment of two bitches as they
would in determining the establishment
of one ditch The query is: Has the ma
chinery OF law been SET in motion
! go as to call forth the Judg-
nent of the commissioners in the estso-
| lishmeut Of the ditch IS? This machinery
! of law i the petition. the concerted Judg-
uient of he petitioners, and ft IS within
! the discretion of the commissioners, a.
! well as within the discretion IT The petit
/ iioners themselves, to petition conJolntly
/ for two bitches, as they might petition
separately for each dltcD, rs tho case
may be.
20, then. the court does not think the
| objection is tenable that two bitches are
being es, ahlished instead Of one.
1t is also said on the part of the plaintiff
in support OF his injunction, that an adj
iourn meut had been contrary 10 the pro-
visions OF he act in controversy. Let US
see; first. what is the language OF the act.
then we viii determine the application OF
the facts TO this Case. Section provides
That on the day set for the hearing OF
said petition, II IL appear TO the board OF
county commissioners that any person or
persons vino may be Interested In said
ditch have not been notified as required
by this act, or that any requisite prellm-
mary steps have not been taken, they shall
adjourn TO some future time, nos exceed
iD- twenty days, and order such notice 10
be given, or sucu preliminary steps taken.
The court finds that this Is all the law re-
!ating { adjournment IN the act under
controversy. What. then, are the facts III
this case? On Oct L. 1891, the board of
county commissioners met for the pro-
ceediugs in question and adjourned TO
Oct. 90, 1891, IL period OF nineteen days.
Does section point out that rne adjourn
ment shall relate only to the nrat ADJOURN
Inent or 10 subsequent adjourn ments? Toe
in
to the first adjournment. Ii Is true that
the record of this case shows there were
other ad tournaments taken beyond twenty
days AS provided by section 4.
And il the first adjournment had been
beyond twenty days the court. believing
that tue board of county commissioners
act largely as = quasi judicial tribunal,
would be inclined & the opinion that the
board of county commissioners had lost
their jurisdiction. But as section simply
provides Tor the first adjournment, and as
the first adjournment did not exceed
twenty DAYS. the court holds that the
board did not loose jurisdiction by reason
of any adjournment which tney may nave
taken.
IL is also said on the part of the plaintiff
that there have been made illegal assess
ments and costs by the board Of county
commissioners, to-wit: the SUM OF $50 for
their services: and that there have been
other illegal charges made by the surveyor.
We think the contention Oh the part of
the plaintiff ia this respect is correct, The
law of this state expressly provides that
the board of county commissioners OF
Sedgwick county shall receive not more
than 81 900 per year in full for their servi-
ces This law was passed In the year 1889
and is undoubtedly repeal by implication
of the law of both 1879 and 1856, which
allows the commissioners S. il day for
their services in establishing bitches.
1t IS true, under similar
state of facts, the supreme court
of Oregon held otherwise, but we do not
think that such decision rests upon any
sound foundation. What is true in rela-
ton to the illegal charges assessed by the
board of county commissioners tor their
services is also true with reference TO that
particular charge of the surveyor, made
for driving the board of county commits
sioners over the lands in question. The
law relating to the services OF the county
surveyor will not cover an item of this
character.
The conclusion, therefore, reached by
the court is that the commissioners have
proceeded rightfully under the law to
establish the bitches, with the exception
of assessing in the costs for the Construc-
ton OF the ditch the certain illegal sums
Just recited. The court at this time Is
not advised, the question not having been
discussed by counsel, whether or not
an Injunction shall be sustained because
of an oyercharge on the part of The board
of county commissioners for their services,
and an overcharge on the part of the sur
yeyor for his services which overcharges
were made part of the assessment of the
cost of the construction of the ditch, and
does not, therefore desire that his ruling
in that respect should be taken us 4 prece-
dent
The court in this case will restrain the
board of county commissioners from MAX
ing this part of the assessment any part
of the cost of the construction of said
ditch: that is to say, as TO such per cent.
as indicated by these overcharges to which
| have referred the injunction will be
granted; otherwise the injunction will be
denied.