The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1919-07-07
DISSENT IN CASE
Three Supreme Court Justices
Upheld Commissioners.
Assert They Acted Within Pow
or in County Home Stand.
TWO OPINIONS HANDED DOWN
Johnston, Marshall and West
Upheld WhitcOmb.
Copies of Dissents Give Rea.
sons of Justices.
TWO OPINIONS HANDED DOWN

the site Oh the present COullly Adi A4i-
That is the view of the case as taken
by Justice John Marshall in an opin-
ion dissenting from the majority rule
of the supreme court. Chief Justice
w. w. Johnston Joined in the dissent.
while Justice ]. S. West not only
Joined but wrote special dissent.
Justice Marshall met claim that
street cars should be accessible for
county home inmates. He points out
that street cars are but one means of
transportation. Automobiles and good
roads should be considered he urges
He also points out that location too
near a city might not be desirable
since outdoor life and opportunity to
work in healthful endeavors is an es-
sential
I'm the absence of any charge of
fraud or bad faith said Justice Mar
shall, but with tacit admission that
the commissioners have acted in good
faith, how can the court say that their
decision is not right? How can the
court say that they did not take into
consideration every element entering
into the question of practicable prox-
| unity to Topeka?"
MarshalPs Opinion.
The opinion by Justice Marshall
The statute does not undertake to point
| out either the land on which the settlement
/
| be from the county seat The statute does
| say, however, that the settlement shall be
situated as near as practicable to the
1t shall be at the nearest possible place:
The duty of selecting the place is imposed
/ on the county commissioners. who must
| necessarily exercise a discretion in max
| ing the selection. That discretion cannot
be controlled by the. courts. Until the
| board acts fraudulently, or in bad faith,
It cannot be interfered with.
No Authority Mentioned.
| The opinion states that no authority to
consider the poor farm, in locating the
county settlement of public welfare in
! location is excluded by the act except
the county seat commissioners are
at liberty to obtain purchase land from
any owner from the city as well as from
private parties. 1t cannot be said that
the poor farm not in the mind of the
legislature when it provided that the pro-
ceeds from the sale of bonds shall be used
| in the purchase of lands, and in the cree
ton, furnishing and equipment of build
ings 1t is immateriai whether the To-
cation is separate or apart from the poor
| farm, or adjoining it, or a part of 1t. In
| either case. the question for discussion is
the location. and who considers all the
| elements which shall determine the select
ion of that location. The answer is, the
board of county commissioners. 1t is pro-
per for the board to consider the interests
| Of all the people of the county, including
the plaintiffs, in deciding the practicable
ity of the location. No one contends that
| the location shall be elsewhere than at the
nearest practicable place to the county
] seat; but the Legislature committed the
selection of that place to the county com
1t is conceded that they can accept
gift of land for the settlement. as we'll as
to obtain it by purchase. The county
owns a body of land large enough for the
| poor farm and for the settlement. 1t can
use its own land for that purpose as we'll
as ten acres that might be bought across
! the road.
What must be taken into consideration
| in locating the site for the settlement?
Nearness to the county seat is one of the
things because the statute makes it so !;
ability to make the buildings modern is an
other one. also required by statute while
accessibility, fertility and amount of land.
and the accessibility Of acquiring other ad-
Joining land in the future are other mat
tiers that are within the contemplation of
the statute and should be considered.
"As near practicable to the county
seat, does not mean within one-half mile,
nor within one mile, nor within two
miles, nor within any other prescribed dis
lance; but 1t does mean that the settlement
shall be located at a place near to the
lions necessary to enable the county com
the law.
Must Have Sewer System.
Such institution, to be modern, must
have a sewer system. The sewer system
| of the city cannot be depended on If the
Institution is located outside Topeka.
The sewer system of the city has been
built by taxation, largely in taxing dis
tricts to serve specified territory. The
, city cannot be compelled to receive and
. dispose Of sewage from outside the city
limits.
An abundant supply of water is abso-
| lutely necessary, and is a most important
thing to be considered In locating the in
/ | stitution. 1t will be necessary for the IN
t stttutiOn to have its water supply,
because the city cannot be compelled to
furnish water outside the city limits: and
, it may not be advisable for the city to go
outside TO furnish water, even if 1t has the
power to do
The institution should be easily access
tble; that was probably one of the pur-
poses Of the legislature in requiring that
the institution be placed as near to the
county seat as practicable. 1t is argued
that the locations mentioned in the petition
l are close to the street tracks in To-
peka. A street railroad is only one means
of transportation; there are also steam
; railroads; but automobiles and motor
trucks are fast displacing both street and
steam railroads for transportation over
short distances. Good roads are the order
of the day; they are being built largely
for the use of automobiles and motor
trucks.
: The inmates of such an institution should
have an opportunity 70 work in somt
Of producing things from the soil. This
requires fertile soil. Then such an in.
stitution as is contemplated should be 10.
= Gated on that kind of soil. and the amount
of land occupied should be sufficient T.
give every inmate. that desires it. all th'
work of that kind that he wants to do. Ter
acres. the minimum, probably will not b'
sufficient for that purpose. The day con
I templates three buildings. one for the
. homeless and for delinquent and dependen
. children. one for diseased persons and on,
for those afflicted with tuberculosis. Tire,
institutions one each of the kinds named
S all located on ten acres of ground. woult
produce a crowded condition. More LAND
= will be required in the future. Topeka Il
growing and expects to grow more Landl
within a mile of the city are rapidly in
| creasing In value. The location should b'
at place where other lands may be oh
tanned I'm the future at an expense which
. will not be prohibitive. This may very
o properly have been one of the reasons why
5 the commissioners did not locate the in
!. Stitution closer to Topeka.
= The tract selected is four aud hal
: miles from Topeka. In the absence Of am
0 charge of fraud or Of bad faith but witt
the facif admission that the commissioner,