at that time." Section 9, c. 25, Comp. Laws 1885, p. 258 is: "It shall be the duty of the county commissioners to make out and cause to be entered upon the records of the county an accurate description of the townships into which the county shall have been divided; and it shall be the duty of the county clerk to make out and transmit to the secretary of state a map of the county as divided into townships and the name and description of each township. Section 11, c. 25, Comp. Laws 1885, p. 263, is as follows: "Each county, having less than thirty thousand inhabitants, shall be divided by the board of county commissioners into three compact districts, as equal in population as possible, numbered respectively 1, 2, and 3, and subject to alteration at least once in three years, and one commissioner shall be elected from each of said districts by the voters of the district as heretofore provided; but if in any county the aforementioned board of county commissioners shall fail to make such division before any election for county commissioners, such failure shall in no case prevent the election of said commissioner." Section 3, art. 9, of the constitution has required the election of county commissioners by districts, numbered one, two, and three ever since 1876. Sectio. 2, art. 9, of the constitution reads as follows: "The legislature shall provide for such county and township officers as may be necessary." Sections 1, 3, c. 25, Comp. Laws 1885, p. 262, are as follows: "That each organized county within this state shall be a body corporate and politic, and as such shall be empowered for the following purposes: First. To sue and be sued. Second. To purchase and hold real and personal estate for the use of the county, and lands sold for taxes, as provided by law. Third. To sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants. Fourth. To make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers. Fifth. To exercise such other and further powers as may be especially conferred by law." "The powers of a county as a body politic and corporate shall be exercised by a board of county commissioners." After the county officers appointed by the governor had qualified, the county of Gray, by the express terms of the statute, "was duly organized." Therefore, we think, construing the statutes together bearing upon the question at issue, and making them harmonize, that the commissioners appointed by the governor had the power to divide the county of Gray into commissioner districts, and that the rulings of the contest court and the district court were erroneous. This construction of the statute was lately adopted by this court in the election of the county commissioners of Sherman county, but in that case no written opinion was filed, as it seemed to be conceded by the counsel that the county was properly divided into commissioner districts by the commissioners appointed by the governor.

The arguments against the conclusion we have reached are that if the legIslature had any intention that the commissioners and clerk appointed by the governor should perform the duties pertaining to their offices, under chapter 25, Comp. Laws, 1885, p. 261, relating to county officers, it would not have limited the oath required of them to a faithful performance of the duties prescribed by said chapter 24; that the commissioners appointed by the governor are not required to execute a bond for the faithful discharge of their duties; and that such commissioners are spec ally empowered to act as a board of canvassers for the first election of township and county officers. We think the words "herein required," set forth in section 2 of said chapter 24, are broad enough to embrace all duties resulting from the appointment and acceptance under said chapter 24 and acts amendatory thereof; and also the duties to be performed under the statutes that are to be construed with said chapter 24. Again, if it be true that the commissioners appointed by the governor are not required to give official bonds, such omission in the statute

does not carry with it any great force. These commissioners are not expected to serve any great length of time, as the statute requires an early election after the organization of a county for the selection of township and county officers. Prior to 1875 all county commissioners were permitted to discharge their duties without giving bonds. The authorization of the special commissioners to act as a board of canvassers for the first election called after the organization of a county seems to be necessary, as the general act relating to elections does not clearly and distinctly devolve upon the county clerk and commissioners of a county the duty to canvass and declare the result of such an election. For a like reason section 3 of said chapter 128 imposes upon the special commissioners the duty of dividing their county into suitable and convenient townships. By section 24, of said chapter 25, county commissioners have no authority to create new townships, excepting upon three months' notice, and the presentation of a petition therefor signed by 50 electors. No notice or petition is required to authorize the county commissioners to divide their county into commissioner districts. Section 11, said chapter 25. Further, if the act relating to the organization of new counties and its amend ments limited the duties of the commissioners and clerk appointed by the governor to the matters therein solely enumerated, their powers would be most lame and impotent, disregarding the provisions of said chapter 25, relating to county officers, the special commissioners and clerk would not be required to hold their offices at the county-seat, and the compensation of these offices would be indefinite and uncertain. If the persons appointed by the governor to act as commissioners for a county being organized are limited in their duties to matters stated in the act relating to the organization of new counties and its amendments, then the rights and duties of the county clerk are limited in the same way, and under such acts alone it would be impossible for a county clerk to perform his duties beneficially or properly. With the construction we have given to the statutes we cannot hold that the commissioners and clerk appointed by the governor are confined in their duties and powers to those specifically enumerated in chapter 24, Comp. Laws 1885, p. 256, and chapter 128, Sess. Laws 1887. These officers may also exercise the powers conferred by chapter 25, Comp. Laws 1885, p. 261, relating to county officers, where such duties are not in conflict with those enumerated in the acts relating to the organization of new counties.

The judgment of the district court will be reversed, with direction to that court, also, to reverse the judgment of the contest court. All the justices concurring.

(39 Kan. 265)

KUHNERT v. Conde.

(Supreme Court of Kansas. May 4, 1888.) ABATEMENT AND REVIVAL-DEATH OF PARTY-APPEAL.

After a judgment was rendered in the district court in favor of the plaintiff, he died, and afterwards the defendant, for the purpose of reversing such judgment, filed a petition in error and case in the supreme court, purporting to make the former plaintiff, and him only, the defendant in error. More than one year after the judgment was rendered it was revived in the district court in the names of the representatives and successors of the former plaintiff. Held, that the proceeding in error in the supreme court must be dismissed for the reason that it was not legally brought in the supreme court, and there has at no time been any defendant in error.

(Syllabus by the Court.)

Error to district court, Doniphan county; R. C. BASSETT, Judge.

W. D. Webb, for plaintiff in error. L. F. Bird, for defendant in error.

VALENTINE, J. On April 22, 1886, a judgment was rendered in the district court of Doniphan county in an action of ejectment, in favor of Peter C. Conde, the plaintiff, and against William F. Kuhnert, the defendant. On v.18p.no.2-13

January 23, 1887, Conde died. On April 2, 1887, a petition in error and case were filed by W. D. Webb as attorney for Kuhnert in the office of the clerk of the supreme court, making Kuhnert the plaintiff in error, and purporting to make Peter C. Conde the defendant in error, and praying for a reversal of said judgment. Webb was the attorney of record for Kuhnert. L. F. Bird, who had formerly been an attorney in the case for Conde, waived the issuance of summons and the service thereof, and no summons was ever issued in the case. On October 11, 1887, a notice was served by Samuel Woodworth, the attorney and next friend of the representatives and successors of Conde, upon Kuhnert's attorney of record, Webb, of an application to revive the judgment aforesaid, in the district court, in the names of the representatives and successors of Conde. This notice gave the names of the representatives and successors of Conde, and was signed by Bird as attorney for plaintiff. Webb, as the attorney of Kuhnert, accepted service of the notice, and consented to the revivor. Afterwards, and on January 11, 1888, the judgment was revived by order of the judge of the district court. On April 3, 1888, Woodworth and Bird, as the representatives and attorneys of the representatives and successors of Conde, appeared specially in this court, and moved that the case be dismissed. It will be observed that at the time of Conde's death the case was wholly and entirely in the district court, and there is no pretense that anything connected therewith was in the supreme court. No attempt had yet been made to bring the case or anything connected therewith to the supreme court. Hence no revivor could at that time have been had either of the action or of the judgment except in the district court; and no revivor was attempted in that court, or in any other court, within one year after the time of the rendition of the judgment or of Conde's death. Before any revivor was had or even attempted, an attempt was made to bring the case to the supreme court. Of course that attempt was abortive. It was attempted to make Conde the defendant in error, but as Conde was dead, he could not be made a defendant in error. He could not appear in any court and defend. Nor could Bird, nor anyone else, legally appear for him, as an attorney or otherwise. Bird ceased to be an attorney for Conde when Conde died. No service of summons could be made upon Conde after his death, and no waiver of service or of summons could be had by the consent of Bird, or otherwise, and no attempt was made to make the representatives or successors of Conde parties to the proceedings in this court; and they have never been made parties to any such proceedings. Indeed, there never has been any defendant in error in this court. The case has never legally been brought to this court, and in law has never been in this court at all, and it is now too late to bring it here. A proceeding in error to reverse an order or judgment of the district court can be brought to the supreme court only within one year after the order or judgment complained of has been made or rendered. Civil Code, §.556. In this case a judgment is complained of, and that judgment was rendered more than two years ago, and yet, in legal contemplation, no part of the case in which the judgment was rendered has ever been brought to this court; for, as before stated, there has never been any defendant in error in this court. It was about nine months after the time when the judgment was rendered before Conde's death took place, and nearly two years before the judgment was revived in the district court, and yet the deceased, Conde, after his decease, is and has been the only defendant in error, or supposed defendant in error, in this court. The case has never legally been in this court, and it will be dismissed.

All the justices concurring.

(39 Kan. 276).

CHALLISS v. CITY OF ATCHISON et al.

(Supreme Court of Kansas. May 4, 1888.)

TAXATION-LEVY-INJUNCTION TO RESTRAIN-WHEN LIES.

Before an injunction can be granted to restrain the levying or the collection of a tax, some step must be taken by the taxing officers towards the levying or collection of the same. The case of Bridge Co. v. Commissioners, 10 Kan. 326, cited and followed.

(Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Atchison county; D. MARTIN, Judge.

L. F. Bird, for plaintiff in error. Wm. R. Smith, for defendants in error.

SIMPSON, C. The plaintiff in error commenced an action in the district court of Atchison county to restrain the city of Atchison and one Charles Taylor from issuing and receiving certain sidewalk bonds that were claimed to be charges against the real property of the plaintiff in error, and to restrain the levy and collection of taxes to pay said bonds. There was a demurrer to the petition that was sustained by the court below; and, the plaintiff in error electing to stand upon his petition as filed, judgment was rendered against him, denying the relief sought, and for costs; and this is the error complained of. Numerous questions are raised as to the power of the city authorities, under the existing state of the law, to pass an ordinance providing for the construction of sidewalks, whether or not there was such an ordinance, as to the notice required to the property owner and others; and as to all those we are not to be understood as expressing any opinion. They may arise in the future, and be the subject-matter of careful consideration. We think this action is prematurely brought. Section 253 of the Code provides: “An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same. It is the levy, collection, or proceeding to enforce an illegal tax, charge, or assessment that may be enjoined. The petition does not allege either a levy, collection, or proceeding to enforce, but does expressly aver such a state of facts that it necessarily follows that these are to happen in the future if the regular order in such matters is to be followed. At the time of the filing of the petition, the city had made a contract with the defendant Taylor to construct sidewalks, and were about to issue bonds in payment thereof. These bonds are paid by an assessment on lots and pieces of ground abutting on the improvement, according to the front feet thereof. The petition was filed on the 30th day of November, 1885. The sidewalk contract was let to Taylor in September, 1885. The special assessments for improvements, such as sidewalks, are levied and collected as taxes, and must be certified by the city clerk to the county clerk, to be placed on the tax-roll on or before the 25th day of August annually. Months would intervene between the issue of the sidewalk bonds and the levy of the special assessments for improvements, with which to pay them. In the mean time, they are not declared, by statute or city ordinance, to be a lien on the lots or pieces of ground, and probably do not become so until after the levy, so that all the reasons enumerated by this court in the case of Bridge Co. v. Commissioners, 10 Kan. 326, why that action could not then be maintained until after a levy, apply with equal force in this case. As we regard it, this case falls within the case reported in 10 Kan., and must therefore necessarily be controlled by it.

We recommend that the judgment of the district court of Atchison county be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 278)

MANLEY V. CITY OF ATCHISON et al.

(Supreme Court of Kansas. May 4, 1888.)

Error to district court, Atchison county; D. MARTIN, Judge.

L. F. Bird, for plaintiff in error. W. R. Smith, for defendants in error.

PER CURIAM. This case is similar to that of Challiss v. City of Atchison, ante, 195, and, for the reasons given in the opinion in that case, we recommend that the judgment in this case be affirmed.

(39 Kan. 279)

MCKINNEY et al. v. WARD et al.
(Supreme Court of Kansas. May 4, 1888.)

1. APPEAL-REVIEW-SUFFICIENCY OF EVIDENCE.

Where a question of fact is submitted to the court, and the court finds generally for the defendant, such findings are conclusive upon the plaintiff, unless it is shown that there was no competent evidence to sustain such findings.

2. FRAUDULENT CONVEYANCES-FROM HUSBAND TO WIFE-LIABILITY OF LAND FORMERLY ACQUIRED BY WIFE.

Where a husband is engaged in the dry-goods business, and is largely indebted to parties for goods purchased, and he sells such goods, and receives, in part pay ment therefor, 80 acres of land, which is conveyed to the wife by the purchaser of such goods, and where it is also shown that the husband is legally indebted to the wife in a sum equal to the value of said land, such transaction, even though fraud ulent, is not a sufficient foundation for an action to subject other and different real estate, owned by the wife in her own right long before this transaction took place, to the payment of her husband's debts.

(Syllabus by Clogston, C.)

Commissioners' decision. Error from district court, Allen county; L. STILLWELL, Judge.

This was an action brought by A. E. McKinney and others, plaintiffs in error, against the defendants in error, to subject a certain lot and building in Iola, Kan., to a judgment obtained by the plaintiffs in error against John Ward. The record shows substantially the following facts: That John Ward and Bridget Ward were husband and wife, and came to Allen county, Kan., about the year 1877, at which time Bridget Ward had $2,000 in money in her own right. John Ward had no property of any kind. The money belonging to Bridget Ward was by her husband invested in farming lands in Allen county, upon which they resided, and engaged in farming and stockraising, until the fall of 1881, when they sold their stock and farm, and moved into the town of Iola. The title to the farm land was taken in the name of John Ward. After moving to Iola, the money arising from the sale of their farm and property was invested in lots and buildings in Iola, and the title taken in the name of Bridget Ward. At this time they were out of debt. Upon one of the lots, so purchased, was a dwelling-house, which was occupied by Ward and wife as a homestead. In the summer of 1882, John Ward engaged in the dry-goods business in Iola, and on the 11th day of December purchased a bill of goods from the plaintiffs in error, amounting to $626.57. At the time of the purchase of said goods, John Ward made statements to the agent of the plaintiffs of the amount of property owned by him, and enumerated the property owned and purchased by his wife, Bridget Ward, being the lots and building in Iola. Afterwards, on the 22d day of December, Ward mortgaged his stock of goods for $2,800, and in January, 1883, he sold the entire stock of goods to one McNutt for $1,600. McNutt, in part payment, conveyed to Bridget Ward 80 acres of land, paying the balance, $400 or $500, in money. Afterwards, Ward and wife mortgaged the 80 acres of land, and afterwards sold the land. About the 20th of December, Mrs. Ward traded her homestead for a half interest in a lot upon which was being erected a two-story store building, and shortly afterwards purchased, with money arising from the sale of other real estate owned by her, the other half