The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-06-22
AGAINST JOCKHECK.
Judge Hazan Decides That His
Lots May be Taken
FOR USE As A COURTHOUSE SITE.


The Judge Refuses TO Grant the Per-
manenE Injunction
In the district court this morning
Judge Hazen decided the court house
injunction case against Carl JOckneck
and in favor of the board of county COM
missioners, after having the case under
advisement. He declined to grant the
permanent injunction asked for by the
plaintiffs
The court room was filed with the
best legal talent in the city, who were
aware that Judge Hazen's decision would
be an able one, embracing many intri-
cate points of law. Judge Hazen began
by saying that he had made a more
thorough investigation of the points
made by the various attorneys in the
case than it was usual for the court to
make. He continued with recital of
the facts of the case, in which there Is no
dispute or controversy, the matter being
pure a legal question.
Judge Hazen said in part: ssThe plain
tiffs claim first that sufficient effort was
not made by the county officers to secure
possession of the lots, and that only after
such an effort has been made does the
right to condemn exist 1t is true there
was only one proposition made by MIR.
JOckheck, and only one was asked for.
The American encyclopae dla of law says
it makes no difference which side makes
the offer &C which side rejects it; or how
many times offers were made, an offer
is still an offer and the principle remains
the same. 1t is very plain that Mr..
Jockheck and the county officers were
unable to agree on the price.
.'Second-It is claimed that the pres
ence of many other suitable sites made
it unnecessary to condemn the Joczheck
homestead. This court does not deny
that there are hundreds of corners in
the city that would be just acceptable
TO the court the one chosen, but it
does not follow that the right 10 con-
denim ceases to exist. When the county
commissioners find it necessary TO con-
denim property for the public we fare 1T
is not for this court to inquire into their
motives in doing.
''Third-It is said that the taking of
property for courthouse is not for pub
lie use' within the meaning Of the stat
utes Judge Cooley has decided that it
is, and he holds that courthouse is just
as essential to the public welfare
schoolhouse. There be but little
question that courthouse is necessary.
l can find no decisions TO the reverse.
''Fourth-They claim the law is uncon-
stitutional because it contains more than
is included in the title. The title of
course must be index to all the act
contains. The title reads, An act pro-
viding for the condemnation of sites for
county buildings The act also provides
for the condemnation of lots adjoining
the said sites. This court holds that the
greater includes the less, and to put
liberal construction on it l think the title
is plenty broad enough.
''Fifth-A great deal has been said
with persistence and ingenuity regard
ing the homestead feature of the ques-
ton. They claim the HON estead right
is sacred, and withheld from the power
of eminent domain. l have not found
many authorities on this subject but it
f- of f1~ HI ~ Tr,c 2 ..~ ho y
to condemn homestead property does not
exist. L consider the homestead right
inferior to the power of eminent domain.
If the theory of the plaintiffs were cor
rect, internal improvements would be
forever at rest 1t would be impossible
with such ruling to build roads widen
streets, erect public buildings, or build
railroads or telegraph lines. The right
of eminent domain is superior to all
other rights. l decide this point against
the plaintiffs.
''Sixth-It is agreed that there are flaws
in the petition l find on examin alton
that the county attorney has not only
made the petition unfauIty. but broad
enough to cover all the exigencies of
the case.
'.Seventh-They claim the price set by
appraisers is not large enough. This
court holds that this point is not in the
case at all When the plaintiffs at
torneys withdrew their appeal and asked
Tor an injunction the title TO the property
passed from them just as completely as
though the actual sale had been made.
1t is now only a question of the amount.
''The injunction is denied"
The case will be taken to the supreme
court at once and advanced on the
docket as rapidly as possible. The
plaintiffs will begin stay proceedings,
probably, to prevent the Immediate con-
tiscation of the JockEeck property under
stay bond to be fixed by Judge Hazen.
Such a move has. not been made but it
is contemplated by the county attorney.
County Attorney Stafford handled the
case of the county commissioners alone,
and it is a fact which affords him a
great deal of satisfaction that the court
decided every point in the case in his
favor, except one which it was not nee
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