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and that the sewer had been accepted by the “Suits may be brought and prosecuted against city. The court sustained a demurrer to this any one or more of those who are so liable." part of the answer. Gen, Stat. 1909, 8 1641.

The referee found that while the city paid In Martin v. City of Chanute, 96 Kan. 433, Brooks & Gilmore the balance due on the 152 Pac. 20, it was held that the effect of contract, it took no other action toward acthese statutory provisions is that liability or cepting the sewer and the work upon the conobligation is not merged in the judgment tract. Had there been no false charges, no against one of the contractors, and where bribery or fraud, there might be some force such judgment remains unsatisfied it is no in the claim that the city, by paying the balbar to a subsequent action against another ance to the contractors, accepted the work as of the debtors, citing Jenks v. School District, completed according to the contract. But 18 Kan. 356. The judgment was not res

the city was not aware of the fraud and the judicata because the parties are not the conspiracy whereby it suffered a loss. The

Martin v. City of Chanute, supra. obligation of the surety company was an unThe defendants could not better their posi-conditional promise to make good the de tion by offering to pay a judgment to which faults of the contractors. Under the authorthey were not parties and which had been ity of McMullen v. Loan Association, 64 Kan. released by the judgment creditor.

298, 308, 67 Pac. 892, 56 L. R. A. 924, 91 Am. [3] 3. In the Gilmore Case the city was

St. Rep. 236, and Hier v. Harpster, 76 Kan. obliged to pay the costs, and also incurred 1, 90 Pac. 817, 13 L. R. A. (N. S.) 204, 13 Ann. certain expenses for attorneys' fees and for Cas. 919, we must hold that there was no procuring evidence to establish the fraud of positive duty resting upon the city to disthe contractors. The court included in the cover the fraud sooner, and that, notwithjudgment in the present case the sum of $1,- standing the delay in seeking to enforce the 052.25 for these costs and expenses. This it surety's liability, and regardless of the fact is claimed was error. The referee found the that the surety had in the meantime surrenexpenses to be reasonable and necessary in dered its indemnity, the city is entitled to order to establish liability against Gilmore. recover upon the bond the full amount of the As a result of the litigation with Gilmore the loss sustained through the fault of the princity recovered and applied on the liability of cipals. the defendants in this action $3,580.88, which

The judgment is affirmed. All the Justices it owed to Gilmore for paving, and to that

concurring. extent the defendants received the benefit, having been allowed credit for that amount

(100 Kan. 319; 101 Kan. 87) in the judgment in this case. The recitals of BROWN et al. v. PAUL et al. (No. 20775.) the surety bond bound the surety company to (Supreme Court of Kansas. April 7, 1917. On pay all damages, costs, and expenses of ev

Rehearing, June 9, 1917.) ery kind, character, and nature incurred in

(Syllabus by the Court.) consequence of the contract for constructing 1. Highways (30(6)—NOTICE OF VIEW. the sewer. The costs and expenses were Certain land was taken for a highway, no properly included in the judgment. Bank v. notice of the view being served on the wife, a Williams, 62 Kan. 431, 63 Pac. 741; Bourke joint life tenant, who lived in the county, and v. Spaight, 80 Kan. 387, 102 Pac. 233.

no notice in fact to or waived by her. Held,

that as to her the proceedings were void. Gen. [4] 4. The surety company presents one Stat, 1915, 8 8759. more contention. At the time it executed the [Ed. Note.-For other cases, see Highways, bond it received from Brooks and Gilmore Cent. Dig. $8 43, 65-67.) the sum of $7,500 in cash to indemnify it 2. DEEDSC133(1), 136–CONSTRUCTION-Esfrom loss upon the bond, but under an agree TATE OF LIFE TENANT. ment which bound it to return the money as

A warranty deed was made to a son of the soon as the bond was released without lia- above described premises to belong to the said

grantors subject to the conditions that "the bility to the surety company. It alleged in Ira H. Kasbeer during his life and to his wife its answer these facts, and, further, that jointly if he should marry and while she reafter the completion of the sewer it retained mains his wife, or his widow, and in case he dies

and leaves no issue and his widow should marry the money for a time, but was forced to sur- again, then the title to the said premises shall render it to Brooks and Gilmore by threats vest in the legal heirs of the said Ira H. Kasbeer, and a demand to return the same made by excepting the said widow so marrying, with the the insurance department of the state of appurtenances, and all the estate, title and in

terest of the said parties of the first part thereKansas at the instance of the contractors, in.” He married one of the plaintiffs, and to and by reason of an impending suit against them were born the others, and they are all it by the contractors. It was further alleged | Claimed to the son all their right, title, and in

living. Subsequently the original grantors quitthat the money was returned to Brooks & terest in the land “to him during his life and Gilmore only upon notice from James F. Mc- the heirs of his body

to have and to Cabe, city engineer, duly attested by the city hold unto the said party of the second part, bis clerk, that the contractors had completed dren are mere heirs apparent with no vested in.

heirs and assigns forever." Held, that the chilthe work in accordance with their contract, Iterest or remainder, but the wife is joint tenant

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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for life during wifehood or widowhood, and [1-3] It will be observed that this conveytherefore entitled to notice.

ance seems to have vested a life estate in Ira [Ed. Note.-For other cases, see Deeds, Cent. H. Kasbeer and his wife jointly, should be Dig. $$ 368-370, 372, 431-433.]

marry, to continue as such joint life estate to 3. DEEDS O CONVEYANCES.

the two and to her surviving, while she t'nder section 2052 of the General Statutes should remain his wife or widow; that in of 1915, one may convey an interest in land to

case he should die without issue, and she take effect in the future. Miller v. Miller, 91 Kan. 1, 136 Pac. 953, L. R. A. 1915A, 671, should marry again, then the title to vest Ann, Cas. 1917A, 918.

in his legal heirs, counting out the widow, (Ed. Note.-For other cases, see Deeds, Cent. so that in case his parents were living it Dig. $ 5.)

would go to them under the statute of de4. HIGHWAYS 64-INJUNCTION-DEMUBRER. scents and distributions. What should hap

The demurrer to the petition was properly pen in case he died leaving children and she sustained as to the children on account of their remarried was not stated, and need not trouuncertain and contingent interest, if any, in the ble us, for the reason that he and his wife land. [Ed. Note. For other cases, see Highways, the parents executed a quitclaim deed to Ira

and two daughters are still living. In 1897 Cent. Dig. $$ 165, 334.]

H. Kasbeer running to him during his life 5. HIGHWAYS 64-INJUNCTION-DEMURRER.

As to the wife the demurrer was erroneously and to the heirs of his body to have and to sustained, and unless within 60 days from the bold “unto the said party of the second part, bling hereof with the clerk she signify her will. his heirs and assigns forever.” This would ingness to proceed no further, the injunction is seem to vest him with their reversionary into be made permanent. [Ed. Note.-For other cases, see Highways, when making the first conveyance.

terest, or with whatever fee they retained Cent. Dig. $$ 165, 334.)

Section 2049 of the General Statutes of Appeal from 'District Court, Anderson 1915 provides that the term “heirs," or other County.

words of inheritance, shall not be necessary Suit by Hannah F. Brown, Lola F. Gregg, and to create or convey an estate in fee simple; Clara A. Kasbeer against N.'T. Paul and others. "and every conveyance of real estate shall Judgment for defendants on sustaining a demur- pass all the estate of the grantor therein. rer to the petition, and plaintiffs appeal. Order unless the intent to pass a less estate shall sustaining the demurrer sustained as to plaintiffs Hannah F. Brown and Lola F. Gregg, and expressly appear or be necessarily implied reversed as to plaintiff Clara A. Kasbeer, with in the terms of the grant.” In Kirby v. directions to grant the injunction in her favor, Broaddus, 94 Kan. 48, 50, 145 Pac. 875, the unless she indicates her willingness not to pro- court, in discussing the rule in Shelley's Case, ceed further.

said of the grantor : F. J. Oyler, of Iola, for appellants. J. Q. Wycoff, of Garnett, for appellees.

"His essential purpose is, as the rule interprets it, to vest the fee in the grantee, but to

disable him from alienating it. This he cannot WEST, J. A road was established through do, and the attempted restriction is ineffective." certain land in which the plaintiffs claim an

In Howe v. Howe, 94 Kan. 67, 145 Pac. 873, interest, and, not having been served with the conveyance was to the parties of the secDotice of the view, and having had no notice ond part, "their blood heirs and assigns": thereof, and not having been present thereat, the warranty running to the second parties, they brought this suit to enjoin the opening their heirs and assigns, a life estate to the of the proposed highway. A demurrer to grantor being reserved by a separate clause. their petition was sustained, and costs as- It was held that under this conveyance the sessed against the plaintiffs, who appeal. grantees were to have power to convey, but They claim to be remaindermen and to have if no conveyance were made the land was to such an interest in the land as entitled them descend to their blood heirs only, and that to notice and to the maintenance of this suit. the words "blood heirs" were words of limiThe defendants contend that the plaintiffs tation, and not of purchase; that the limitahave no vested interest, and have no right tion was void, and the grantees took estates to require notice or to be heard. The plain- in fee simple, and not estates for life. In tiffs are the wife and daughters of Ira H. the opinion (94 Kan. at page 69, 145 Pac. 873) Kasbeer. In 1884 the land was conveyed by a sentence from Washburn on Real Property, John S. and Hannah Kasbeer to their son, (6th Ed.) $ 163, was quoted with approval, to Ira H. Kasbeer, by warranty deed, subject the effect that an estate to one and his heirs to the following conditions:

male or heirs female would be regarded as a "The above described premises to belong to the fee simple; the limitation to the particular said Ira H. Kasbeer during his life and to his class of heirs being regarded as surplusage. wife jointly if he should marry and while she remains his wife, or his widow, and in case he Another quotation from Hammond's Blackdies and leaves no issue and his widow should stone's Commentaries followed to the effect marry again, then the title to the said premises that the grantor cannot change the state's shall vest in the legal heirs of the said Ira | law of descent and make the property deH. Kasbeer, excepting the said widow so marry scend to his sons only. ing, with the appurtenances, and all the estate, title and interest of the said parties, of the

In Miller v. Miller, 91 Kan. 1, 136 Pac. 9.3, first part therein."

L. R. A. 1916A, 071, Ann. Cas. 1917A, 918, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 164 P.-19

the deed ran to the son for life, the remain-, junction prayed for, and it was held that as der to his wife for life, or so long as she nothing of substantial benefit could have should remain his widow, remainder in fee been gained, the court was not required to to the heirs of his sons of and in default of give a judgment which could not be effective. such heirs, reversion to the grantor. It was To a somewhat similar effect is Hurd v. held that the heirs of the body of the gran- Beck, 88 Kan. 11, 45 Pac. 92, and Teterick v. tee could not be ascertained until his death, Parsons, 90 Kan. 21, 64 Pac. 1028, where, and that the children in being at the time of pending an appeal from an order granting the trial would take nothing under the deed, mandamus, the subject of the controversy unless they outlived their father. It was was disposed of; held that the appeal would also held that under section 3 of chapter 22 be dismissed on the ground that the order of the General Statutes of 1868, and section had become incapable of enforcement. These 2052 of the General Statutes of 1915, present actions neither in principle nor in fact apply and future, as well as vested and contingent, to the one before us. Here the wife's land estates can be passed by deed.

was taken and the road opened without juUnder the most favorable construction of risdiction, and while the suit was to enjoin the two deeds the children are contingent re- the defendants from establishing a road maindermen and heirs apparent in whom no across the land, it was not the plaintiff's estate has as yet vested, and the wife, in fault that before her rights could be adjudi. addition to being heir apparent to her hus- cated on appeal the road was open. In addiband, is joint life tenant with him during tion to setting out the facts in her petition her wifehood and widowhood. The first deed she prayed for such "further and equitable expressly provided that when Ira H. Kas-relief as to the court may seem just and beer took a wife she should become joint proper under all the facts and circumstances tenant with him in the life estate granted of the case." Bonnewell v. Lowe, 80 Kan. subject to the conditions referred to, and, 769, 104 Pac. 853. Had the notice been givhaving become his wife, and thus come into en, or had the wife waiving this matter apher inheritance so to speak, it was not in the peared and demanded damages, injunction power of the grantors to divest her of the would not lie. Doubtless in case of allowestate with which they had already clothed ance to her of proper damages she would not her. She was entitled to notice.

desire further to obstruct the continued use The wife being a resident of the county of the road. where the land is situated, and having done In view of the foregoing and of all the cirnothing to take the place of notice, the au- cumstances the order sustaining the demurthorities were without jurisdiction to appro rer is sustained as to the children Hannah F. priate her land for highway purposes. Gen. Brown and Lola F. Gregg, and reversed as Stat. 1915, § 8759. This doctrine was settled to the wife Clara A. Kasbeer, with directions as long ago as 1877, and has been repeatedly to grant the injunction, unless within 60 declared since. Com’rs of Wabaunsee Coun- days from the filing of this opinion with the ty v. Muhlenbacker, 18 Kan. 129; State v. clerk of this court the plaintiff Clara A, KasFarry, 23 Kan. 731; Com’rs of Chase Co. v. beer shall signify to the court below her willCartter, 30 Kan. 581, 1 Pac. 814; Bourbon ingness to proceed no further herein. All the County v. Ralston, 79 Kan. 432, 100 Pac. 288. Justices concurring. [4, 5]. It appears that after the ruling on

On Rehearing. the demurrer and prior to the filing of formal notice of appeal the road was formally the controversy might be adjusted.

The former order was made on the theory that

But the opened, and is now in general use. Counsel defendants have moved for leave to answer, and for the defendants contends that this ren- the cause will therefore be remanded for further ders this suft moot, and an injunction order proceedings in accordance with the former opin

ion, including leave to answer as to Clara A. incapable of enforcement, and cites authori- Kasbeer. The motion for rehearing is denied, ties on the proposition that under such cir- All the Justices concurring. cumstances a ruling sustaining a demurrer will not be reviewed. In Knight v. Hirbour,

(100 Kan. 399) 64 Kan. 563, 67 Pac. 1104, the injunction suit STATE ex rel. BREWSTER, Atty. Gen., v.

BENTLEY, Mayor, et al. (No. 21333.) involved the possessory right to a corpse after it had rested in an Ohio cemetery for two

(Supreme Court of Kansas. April 7, 1917.) years. The court said that when the subject

(Syllabus by the Court.) matter of the suit has ceased to exist, and 1. MUNICIPAL CORPORATIONS @ww48(1)-STATany order in respect thereto has become im UTES 94(1), 120(3)-CITY MANAGEB PLAN possible of performance, the controversy pre

-CONSTITUTIONALITY. sents nothing to be adjudicated but the ques. relating to the government of all cities in Kan

The act of the Legislature entitled "An act tion of costs. In State ex rel. v. Insurance sas, and to establish an optional form of governCo., 88 Kan. 9, 127 Pac. 761, it appeared that ment,” approved February 17, 1917, is a valid during the pendency of an action to restrain and constitutional enactment, so far as its opcompanies from unlawfully combining an act

eration and effect is challenged in this action.

[Ed. Note.-For other cases, was passed, covering the matter, so that no Corporations, Cent. Dig. 88 127, 128; Statutes,

see Municipal substantial benefit could be gained by the in- 'Cent. Dig. SS 103, 171.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to the individ

2. MUNICIPAL CORPORATIONS Om 48(1)-CITY , the government of all cities of Kansas, and MANAGER PLAN-ELECTION-PETITION.

| to establish an optional form of government." The provision in the act which requires the mayor to call a special election to submit to the

It applies to all cities which shall adopt its electors the question of the adoption of the new provisions. It creates a governing board to form of government upon the filing of a petition consist of the number of commissioners pro"signed by not less than twenty-five per cent.

vided for in the commission government act, of the total number of legally qualified electors voting for mayor at the last preceding city elec

and declares that "no distinction shall be tion" is construed to mean that the petition made in titles or duties among the commismust be signed by 25 per cent. of the number sioners, except as the board sball organize itof legally qualified votes cast for mayor at the

self for business.” The chairman chosen by last elec

without reference to the indi uals who cast them,

the commission takes the title of "mayor" [Ed. Note. For other cases, see Municipal during the year and becomes the head of the Corporations, Cent. Dig. 88 127, 128.)

city “on formal occasions." Each commis

sioner draws a nominal salary, in no case to (Additional Syllabus by Editorial Staff.)

exceed $100 a year. The commission or gov3. CONSTITUTIONAL LAW Om 48 - CONSTRUC

erning board is empowered to pass all ordiTION-PRESUMPTION OF VALIDITY. Every presumption must be indulged to up

nances and to provide for such offices as are hold an act of the Legislature, and every rea necessary to carry out the provisions of the sonable doubt will be resolved in its favor. act and fix the salaries thereof. (Ed. Note.-For other cases, see Constitution

The act requires the commission to apal Law, Cent.Dig. $ 46; Statutes, Cent.Dig. $ 56.]

point a city manager in whose hands the ad4. STATUTES 159-SUSPENSION-POWER OF

ministration of the business of the city is LEGISLATURE. The Legislature always has the power by

placed. He holds office “at the pleasure of the adoption of a later act to suspend the op- the board," is chosen "solely upon the basis eration of an earlier act, and where the two of administrative ability,” and without refacts are in conflict the later expression of the

erence to residence qualifications. He relegislative will controls. [Ed. Note.-For other cases, see Statutes,

ceives a salary to be fixed by the commisCent. Dig. $ 229.]

sion, and is held responsible to the commis5. MUNICIPAL CORPORATIONS O125CIVIL sion for the administration of all the affairs SERVICE LAW-REPEAL.

of the city. Administrative departments of The civil service law has not the force of

| law, service, public welfare, safety, and fia constitutional provision, and may be repealed

nance are created. All appointments "except as to one class of cities and remain in effect

department heads" are made by the manager, as to others.

and "department heads" are required to reOriginal mandamus by the State of Kan-port to him. The act also establishes what sas, on relation of S. M. Brewster, Attorney is known as the "budget system” of accounts General, against 0. H. Bentley, Mayor, and and expenditures. others, being the Board of Commissioners of The foregoing presents a summary of the the City of Wichita and others. Peremptory principal changes established in the governwrit allowed.

ment of cities adopting the act. S. M. Brewster, Atty. Gen., and Chester 1. [3] We have often declared that every preLong, Earl Blake, and Thos. C. Wilson, all of sumption must be indulged to uphold an act Wichita, for plaintiff. Jas. A. Conly, of of the Legislature, and that every reasonable Wichita, for defendants.

doubt will be resolved in its favor. The de

fendants realize that the statute in question PORTER, J. This is an original proceed.

lies intrenched behind these presumptions. ing in mandamus, and the question to be de- More than 20 reasons are presented for striktermined is whether an act of the Legisla

ing down the statute, and the attack is made ture approved February 27, 1917, which au

from all sides and leveled at every supposed thorizes cities to adopt what is known as the

salient, the general assault being preceded city manager plan, is constitutional

by what may be regarded as a "tir de barThe alternative writ. issued less than a rage" or "curtain of Bre," consisting of obmonth after the law was enacted, directed

jections that the title of the act is not suffithe defendants, the mayor, the board of com

oard of com cient, and because of this and other reasons missioners, and the clerk of the city of Wich

of the city of Wich the act is in conflict with article 12, § 1, of ita, to print and distribute ballots and sub

| the state Constitution, and that it attempts mit to the electors the question of adopting |

to delegate legislative powers in violation of the provisions of the act at the regular elec- section 2 of the Bill of Rights. • tion April 3d. The election resulted in a ma-l (1) The title of the act is sufficient. The jority of votes for establishing the new form act contains but one subject, which is clearof government. Whether the peremptory ly expressed in the title, and which is to auwrit shall issue depends upon the validity of thorize the establishment of an optional form the statute.

of government in all cities. The ConstituSince 1909 the city of Wichita has been tion does not contemplate that the title shall governed by the city commissioners' law. be an abstract of the entire act. Rural The new act is entitled "An act relating to School District v. Davis, 96 Kan. 647, 152

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Pac. 666. The contention that the title is too fix the duties and compensation of all such narrow on the ground that the act changes appointees." Section 8 of the act authorizes the primary election law will be considered the park board to "create and provide for the presently in connection with other general payment of debts; draw warrants upon the objections to the act.

city treasurer; purchase, possess, sell and The act is in no sense a special one. It is convey real and personal property; make as general as possible for the Legislature to contracts; issue bonds; levy taxes and spemake it covering the subject. It applies to cial assessments; and do all other acts propall cities which see fit to adopt or submit for er or necessary to carry out the provisions of adoption the city manager plan of govern- this act, subject only to the limitations conment. It is said, and the court takes judi- tained in this act." In many other respects cial notice of the fact, that a dozen or more the Legislature conferred power and authorcities adopted its provisions at the recentity limited only by the judgment and discreelection. The decision in Cole v. Dorr, 80 tion of the park board. In passing upon the Kan. 251, 101 Pac. 1016, 22 L. R. A. (N. S.) contention that the act is repugnant to ar534, upholding chapter 114 of the Laws of ticle 12, § 5, of the Constitution, the follow1907, empowering cities to adopt the commis- ing extract from the opinion in the early sion form of government, completely answers case of Hines v. Leavenworth, 3 Kan. 186, the contention that the act attempts to dele- 204, was quoted: gate powers. See, also, Wulf v. Kansas City, “When a law is passed embracing any of the 77 Kan. 358, 365, 94 Pac. 207.

subjects mentioned in the fifth section, it is the A general assault is made against the act mine whether it contains restrictions, and if it

duty of the court, when called upon, to deteron the ground that it violates article 12, § 5, does contain them the law must be held to be of the state Constitution. It is said that the valid, notwithstanding the members of the governing board or commission is permitted court might doubt their sufficiency to prevent

It is a subject wholly under the conto employ a city manager and fix his salary trol of the political departments of the governwithout restrictions as to the amount. What ment. Whatever the Legislature determines to has come to be known as the city manager be a suflicient restriction, if it be a restriction plan or Dayton plan of administration of at all, must be final." municipal affairs contemplates the employ

It was held that the park board act was not ment by the city of an executive experienced in conflict with section 5 of article 12 of the in business and with technical skill and Constitution, and further that it does not knowledge which will enable him to conduct attempt to delegate legislative powers. It the city's business so far as practicable just is urged, however, that the act is in direct as a great private business is successfully conflict with this provision of the Constituconducted and thereby substitute efficiency tion (article 12, g 5), because, it is said, it and economy for inefficiency and waste. The places no restrictions on the powers of cities Legislature was not proceeding blindly in in taxation, assessment, borrowing money, leaving the matter of his salary to the dis- contracting debts, and loaning their credit. cretion of the governing board. The fixing Aside from creating the office of a general of his salary was not only left with the board, manager, upon whose shoulders are placed but the act expressly declares that in select- all the purely administrative functions here. ing the manager qualifications as to resi- tofore exercised by the commissioners or by dence should not control, so that, if deemed the mayor and council, and directing that advisable, the board may choose as manager certain administrative departments be estaba nonresident of the state. Recognizing the lished, the only other radical change in the difficulty in fixing a salary without informa- plan of city government which the new act tion as to the amount necessary for a city provides for is the budget system, which is to pay in order to secure the services of a especially designed as a restriction upon the manager suitable to its requirements, the power of the city in contracting debts. The Legislature also saw fit to leave to the dis- very purpose of the budget is to compel the cretion and judgment of the commission the adoption of practical business methods in determination of what the city could afford the appropriation and expenditure of the to pay for the services of its manager. In finances of the city. To this end the act the wisdom of the Legislature no special requires the manager to prepare and submit restriction was deemed necessary to prevent to the governing body a yearly budget and an abuse of power in fixing the salary of the to keep the city fully advised as to its finanmanager.

cial condition and needs. The public is In Wulf v. Kansas City, supra, the valid- to have ample opportunity to be heard upon ity of chapter 115 of the Laws of 1907 was the various items of the proposed budget beattacked on the ground that it attempted to fore it is finally adopted by the governing delegate to a park board the power to incur body. Section 14 of the act provides : indebtedness and levy taxes in violation of

“Sec. 14. The accounts of the city shall be this same section of the Constitution. Sec- kept by the treasurer of the city in such a way tion 4 of the act authorizes the park board that a full statement of the city finances may at will to "appoint, employ and discharge such be made each month. Expenditures shall be

legal only on the basis of appropriations in the engineers, surveyors, attorneys, agents, clerks budget, and on the authority of warrants issued and servants as it may deem necessary, and by the director of finances countersigned by the

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