The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1896-05-07
Step by Step the People are
Moving Toward a New Bridge.
Judge Hazen Denies the Appli-
cation for an Injunction.
a Motion for New Trial Promptly
Overruled and the Case VIII
Go to the Supreme
Court at Once.


lighting their way to new bridge
across the Kansas river. 1t has been
slow work at the best, but the wheels
are now running faster, and this time
it looks as though a final result VIII
soon be achieved
Last Friday an Injunction suit to test
the legality of the bridge bonds was
fled in the district court in the name
Of the state Of Kansas. and today Dis
trict Judge Hazen decided it, 1t was
less than a week from the time Of i'll
ing the action until the ruling had been
given. and the appeal had been fled in
the supreme court; this was done this
afternoon
After stating the special act passed
by the legislature in 1885 for the con
struction of the Kansas avenue bridge,
Judge Hazen said that on November 8
9 sol votes were cast for the bridge and
2I81 against, a total vote of 4982. In
that election there were 1892 votes cast
for sheriff. and Tit is claimed that there
being but S.801 votes cast for the
bridge bonds it failed to receive q ma
jority OF all the votes cast at that
election" Judge Hazen said by the
special act the county commissioners
were given power to call the bridge
election on any day, or on a regular
election day. and he held that from the
language Of the act. the meaning Of
the word majority meant simply a
majority of the votes cast in the spec
la election on the bridge question. not
the total number of votes cast at the
regular election although occurring on
the same day
Judge Hazen then passed to the
question OF the patent. There seem
to be two lines of authorities upon the
proposition as to whether a patented
article can be used where the law re-
mats 1aIHH
believe the better and more modern
doctrine is to the effect that patent
eo article may be adopted in such
cases IF the use of patented articles
were to be excluded the effect generally
would be to deprive municipalities of
the latest and most improved struc-
tlres; and this court prefers to follow
t1le me OF authorities which hold that
q patented article may be used where
competition is required by law. But
II the court should follow the other line
OF authorities, even then, the contract
made between the board of county
commissioners ard the assignee of the
palentee by which the successful bid
Ger IS required to pay a. royalty would
insure the element of competition and
render inapplicable those decisions
which hold that there can be no com
peI1tlCn where patented article is
As to the contention that the legis-
7 azure conferred corporate power on
tIle commissioners in the prOyisO of
--.- 3z-~J1lA section OF the special act.
PROVIDED. that said bridge shall re-
nam under the charge and control Of
TIE county commissioners. and such
/ commissioners shall have power fr
appoint a superintendent for The con
structio1 of said bridge. and to FIX his
sa-tf5 thereby giving the board con
1loi oE part OF street of the city of
1opehas contrary to section 1, article
- Of the constitution THE Iavfs7a
4 ture shall pass no special act confer
rms corporate powers" Judge Hazen
Y lnaI q special act which takes awav
i any portion of the territory within =
+ city from the Jurisdiction Of such civ
T = q NlolaIlon OF section i, article u. Of
/ the constitution.
But law may be valid in part and
lANalla IA paru, and if the court is sat
( lsIl@u lnaI the purpose of the law can
re earned out without declaring the
"noie law unconstitutional il viii ID
SO and uphold that portion of the law
WIlch IS not repugnant to the constitu-
In view of the fact thai. oornee7. for
lne state rely upon the decision OF ~
I Kansas IN relation to the Quincy street
+ DIldse III this city, it is important to
/ examine that act and see whether the
oDJecliona pie features in that act are
f represented in this
ln brief it (the Quincy street #sefO
allhorlzed the board of county com
L Lllssloflers to construct this bridge
4 paced IT. together with all portions Of
quincy street necessary to be used
utl4ef their exclusive control withheld
f 81 Ju4lsulcIlOn from the city. COmpelfpd
4 the city to widen its street and nav 10
! abuttng property owners all dana ees
/ tIFy might sustain on account Of ifs
construction. This law the supreme
/ court held to be uncOnstitutional as
tlolallNe or sections / and 5 of article
I = OF the constitution. But there is
+ a marked difference between that law
+ ana the one under consideration With
+ lae view the court takes of this aef if
/ IS not necessary to decide at the pres
4 emf tline whether this provision in this
~ Ien1e1s the statute uncOnstitu-
1 ll0naI on not for If this portion Of the
/ law as unconstitutional it does not de-
{ stroy tha entire act This NORTON ~
II may be held invalid and vet there
would be sufficient of it remaining to
authorize the board to issue the bonds
and construct the bridge
The board may control the bridge
ana stlll permit the city to exercise
Z every authority it might exercise if
/ Dalll oy the city The city and county
are taxed alike TO pay for this bridge.
enc the right to use it is in common
] Whether the city or the county shan
nave control Of it is Of little import
ance- ana must have been q minor con
sheraton in the minds Of the legis-
lalors in passing this act
The application for an Injunction is
I denied =
JUDGE John Guthrie for the state i'm
I neQlately made motion for a new
trial and it was as quickly overrnIed.
Judge Guthrie then said the case would
be appealed.
County Attorney Harry Stafford ras
peen working for the last few days on
/ a brief Of the case, and this was filed
I IN the supreme court this afternoon.
+ The argument viii be heard there in
day or two, and a decision is ex-
pected very soon