State ex rel. Wyman v. Kansas State Highway Commission

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

This was an action to enjoin the state highway commission and the council of the city of South Hutchinson from purchasing right of way and constructing a pavement along certain streets in that city. The action was brought in the name of the state by the county attorney of Reno county. It was joined in by one private citizen whose land was about to be taken. Judgment was for defendants. Plaintiffs appeal.

The pavement is a part of Kansas highway No. 17. This highway was originally designated along a certain route. Later the highway commission decided to change this route. • It is this change which appellants challenge. They rely on a provision of R. S. 1931 Supp. 68-406, as follows;

“That the highways heretofore designated as state highways shall be a part of the state highway system and no substantial change therein shall be made except when, the public safety shall require such substantial change.”

Appellants state in their brief that they offered evidence to prove the change was a substantial one and the public safety did not require it. It is the refusal to consider this evidence which is urged as error. The evidence is not brought here in the record, neither does the record show that this evidence was ever offered to the trial *298 court in any record form. For that reason we cannot consider it. (Leach v. Urschel, 112 Kan. 629 , 212 Pac. 111 .)

Appellants pleaded in their petition and base their claim for relief on a writ issued by this court in the case of State of Kansas, ex rel. William A. Smith, v. J. S. Morton et al., No. 29,015, decided April 19, 1929 (no opinion written). In that case this court ordered the city council of South Hutchinson to cooperate with the highway commission in constructing Highway No. 17 through the city. It is complained this was an order to construct the route contended for by appellants. We do not so construe this writ. After the city council evinced its willingness to cooperate with the highway commission the commission still had the duty to choose the route through the city, the only restrictions on its authority being that it must not make a substantial change except for reasons of safety. We have already seen that this question cannot be considered in this appeal.

The judgment of the district court is affirmed.