Hornaday v. State

The opinion of the court was delivered by Smith, J.:

The principal controversy between the parties is whether the law of 1891 repeals the act of 1881. It does not do so in express terms. Under the repealing section of the Law of 1891, reference is made to chapter 168, Laws of 1879, chapter 186, Laws of 1885, and section 1, chapter 187, Laws of 1887, and its express repealing force is applied to the preceding enactments mentioned. If there be a repeal, it is by force of the words ‘ ‘ and all acts and parts of acts in conflict herewith are hereby repealed.” In Kansas Breeze Co. v. Edwards, 55 Kan. 630, 633 , 40 Pac. 1004 , the following language was used :

“Repeals by implication, although not forbidden by the fundamental law, are not to be favored, especially in view of section 16 of article 2 of the constitution ; and this court said, in the case of Stevens v. Ballou, 27 Kan. 594, 600, 601 , that in order to declare any legislation repealed by that method the court ‘should be satisfied that such has been so done beyond all reasonable doubt.’ ”

*503 In Keirsey v. Comm’rs of Labette Co., 30 Kan. 579 , 2 Pac. 864 , this language was used:

“Repeals by implication are not favored, and are sustained only when the later law cannot by any fair and reasonable construction be harmonized with the former. Both laws are to be sustained, if possible.”

“A repeal by implication must be by necessary implication. It is not sufficient to establish that the subsequent law or laws cover some or even all of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.” (Ander. Law Dict. 879.)

We can see no good reason why the trustees for the ■different asylums, commonly known as the state board of charities, should not be given power to condemn lands necessary for the erection of buildings for institutions, the care of which comes within their jurisdiction. The conferring of such power is a matter of legislative discretion, which may be exercised by lodging the same in any number of boards or tribunals authorized to act in behalf of the state. In the statute authorizing the condemnation of lands for railway purposes two methods for determining the value are provided, one by the board of county commissioners acting as appraisers, and the other by three commissioners selected by the district judge.

In Shoemaker v. Brown, 10 Kan. 392 , it was said :

“It is a general rule that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like power, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter.” (Delafield v. State of Illinois, 2 Hill, 159.)

*504 When, a branch of this controversy was before this court last year, after discussing the scope of the power of the board of charities to condemn under the law of 1891, it was said :

“Further than this, by section 15 of chapter 160 of the Laws of 1891 (Gen. Stat. 1899, § 6421; Gen. Stat. 1897, ch. 5, § 15), the state board of public works (if such a board exists ) is also empowered to appropriate and condemn such land as may be necessary for securing grounds for the construction of any state building. We think that the legislature, when it passed the act of 1899, did so with the intention that the said power conferred upon plaintiffs in error as a board of trustees, or on the board of public works, should be brought into exercise for the purpose of obtaining title to the site chosen, and that chapter 18 of the Laws of 1899 is to be coupled with chapter 46 of the Laws of 1881 (Gen. Stat. 1897, ch. 68, § 18; Gen. Stat. 1899, §6336), and with section 6421 of the General Statutes of 3899 (Gen. Stat. 1897, ch. 5, §15), and that the latter two should be considered with the former to give effect to the legislative intent.” (Hor naday v. The State, 62 Kan. 828 , 62 Pac. 329, 330 .)

Counsel for defendant in error assert that the above extract from the opinion is dictum, and what was said was unnecessary to a decision of that case. It is true that the language was used arguendo, but the expressions were not made unadvisedly or without consideration of the matter. It does not follow that a legal proposition stated obiter is bad law. It cannot be held that there was a set purpose of the lawmakers to divest the board of charities of the power to appropriate land under the provisions of the law of 1881.

It is contended by counsel for plaintiffs in error that the board possesses the power to buy the land selected by the legislative committee. We do not concur in *505 this claim. In Hornaday v. The State, supra, at page 830, it was said :

“The rule is that, in the case of those acting on behalf of the public, there is no power to agree as to the compensation to be given to the landowner where his property is sought to be taken for public use, unless it is given by statute, either expressly or by implication.” (See Lewis, Em. Dom., 2d ed., § 288; City of Chicago v. Hayward, 176 Ill. 130 , 52 N. E. 26 ; Trester v. The City of Sheboygan, 87 Wis. 496 , 58 N. W. 747 ; Village of Hyde Park v. Spencer et al., 118 Ill. 446 , 8 N. E. 846 .)

The act of 1881 confers specific authority on the state board of charities to secure the necessary lands in a certain designated way, and the manner pointed out must be pursued.

The judgment of the court below will be reversed, with directions to proceed further in accordance with the views expressed in this opinion.

Cunningham, Ellis, JJ., concurring.