Board of Commissioners v. Winkley

1. Hedges; Valid Act. The act to encourage tlie growing of hedges is not objectionable upon the ground that the subject of the act is not expressed in its title. (Gen. Stat., ch. 40, p.495; Laws 1871, ch. 91.) 2. Bounty Proposition, Legally Adopted. Where 'the statute provides that the question of allowing a bounty for the growing of hedges shall be decided by a vote of the people of the county at an election called by the county commissioners of the county, to be held at a general election for township or county officers, and further provides that if a majority of the votes are for the bounty the county commissioners shall declare the law to be in full force and effect, held, if The bounty proposition receives a majority of the votes cast upon that particular question at an election called at the time township officers are to be voted for, the proposition is legally adopted, notwithstanding it failed to re ceive a majority of all the votes cast at the election for township officers.

Error from Marion District Court. Action brought by Winkley against the Board of Commissioners of Marion County, for a bounty to which he claimed to be entitled under the provisions of an act entitled “An act to amend section second of an act entitled ‘An act to encourage the growing of hedges/ &c./’ approved March 2, 1871. Trial had at the May Term, 1882, of the district court. The court made and returned the following findings of fact and conclusions of law: “1. That in accordance with the provisions and requirements of section one of chapter 91, Laws of 1871, the board of county commissioners of Marion county, Kansas, on February 15, 1873, in pursuance of a petition of more than one-third of the electors of said county, ordered that an election be held in said county ou the first Tuesday in April, 1873, on the proposition to adopt or reject the bounty for successfully growing and cultivating Osage orange or hawthorn fence, provided for in said law, and by its proclamation did call such election. . “2. That .due notice of said election was given by the sheriff of said county by publishing a proclamation of said election, containing said proposition, for three successive weeks prior to the first Tuesday in April, 1873, in the Marion County Record, a newspaper published in said county and of general circulation therein, and by posting copies of said proclamation and proposition at each of the voting places in said county, fifteen days before the said day of election. “ 3. That said election was had upon said proposition on said first Tuesday in April, 1873, the same being the day on which the general election for township officers in said county was held. “4. That on April 8th, 1873, the board of county commissioners canvassed the votes cast at said election for township officers, and also the votes cast upon the proposition aforesaid, and upon said canvass being had, it was found that one hundred and ten votes had been cast at said election ‘Eor the bountyand said board declared that the said proposition to adopt the bounty had been carried by a majority of eighty-two votes. “ 5. That at said election - for township officers five hundred and seventy-eight votes were cast for township officers, and one hundred and thirty-eight votes were east at said election upon the bounty proposition aforesaid. “6. The said board of county commissioners declared the result of said election upon said proposition, by proclamation published two weeks in the Marion County Record, a newspaper published in said county and of general circulation therein, and did therein declare that the provisions of said chapter 91, Laws of 1871, had been adopted in said county, and that said law should take effect and be in full force and effect therein, on and after the 21st day of April, 1873. “7. That the plaintiff as alleged in bis first cause of action, did plant and successfully cultivate and grow, in pursuance of said law, an Osage orange fence, four hundred and 'fifty-eight rods in length, on the southwest quarter of section seventeen, township twenty, range three, east, in said county; and the same was inspected by the township assessor of Wilson township, in which said fence was situated, and by him adjudged a lawful fence, on the 2d day of April, 1879, inclosing, with twenty-two rods of other fence, eighty acres of land. And at the defendant’s April meeting of that year, and on, to wit, the 3d day of April, 1879, the plaintiff demanded of the defendant, on his account,-one year’s 'bounty for said 458 rods of hedge fence, to wit, $22.90, which said account was rejected by the defendant, and the payment thereof refused; and that on the back of said account was indorsed by the township assessor a statement that he had, on the 2d day of April, 1879, examined said hedge, and found it of sufficient height and thickness to constitute a lawful fence under said law of 1871; and that such demand is the only one ever made for the $22.90 claimed by plaintiff in his first cause of action. “8. That in the spring of 1875, as alleged in his second cause of action, the plaintiff planted on the same lands an additional 372 rods, which were, on or about the 15th day of April, 1881, declared to be a lawful fence by the township assessor, and were, together wit-h 458 rods inspected and declared a lawful fence on April 2, 1879, by the township assessor, reported by the township assessor as lawful hedge fence in his assessment roll for the year 1881, and at the July meeting of said defendant for the year 1881, and on, to wit, the 5th day of July, 1881, the plaintiff demanded of said defendant, on his account, duly itemized and verified by his affidavit, one year’s bounty on such 730 rods of Osage orange hedge fence, to wit, $36.50, which account was by the defendant rejected, and the payment thereof refused, and which said demand is the only one ever made by the plaintiff for the amount claimed in his second cause of action, or any part thereof.” As conclusions of law, the court finds: “ 1. That the provisions of said chapter 91 of the laws of 1871 were duly adopted by a vote of the people of said county at the election held on the first Tuesday in April, 1873, went into effect in said county on the 21st day of April, 1873, and have been and remained in full force and effect in said county ever since, subject nevertheless to their own limitations. “ 2. That when the defendant refused payment of the amount claimed in plaintiff’s first cause of action, the same was not then due or payable, or any part thereof, and that the defendant was unauthorized to order a warrant drawn therefor. “3. That when the plaintiff, on July 5, 1881, demanded payment of the amount claimed in his second cause of action, there was nothing due and payable on the 372 rods of the planting of 1875, and the commissioners were not authorized to order a warrant drawn therefor. But there was then due and payable to the plaintiff from the county of Marion, one year’s bounty on the 458 rods of the, planting of 1873, for the year ending April 21,1881,-and included in said demand. “ 4. That the plaintiff cannot recover, and is not entitled. to any judgment against the defendant on his first cause of action. “ 5. That there was due the plaintiff on the 5th day of July, 1881, from the county of Marion, on his second cause of action, the sum of $22.90, for which, with seven per cent, per annum interest from that date, he is entitled to judgment against the defendant.” Judgment for $22.90, with interest from the 5th day of July, 1881, for plaintiff. The Board brings the case here.