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Also that:

"Suits may be brought and prosecuted against any one or more of those who are so liable." Gen. Stat. 1909, § 1641.

In Martin v. City of Chanute, 96 Kan. 433, 152 Pac. 20, it was held that the effect of these statutory provisions is that liability or obligation is not merged in the judgment against one of the contractors, and where such judgment remains unsatisfied it is no bar to a subsequent action against another of the debtors, citing Jenks v. School District, 18 Kan. 356. The judgment was not res judicata because the parties are not the same. Martin v. City of Chanute, supra. The defendants could not better their position by offering to pay a judgment to which they were not parties and which had been released by the judgment creditor.

[3] 3. In the Gilmore Case the city was obliged to pay the costs, and also incurred certain expenses for attorneys' fees and for procuring evidence to establish the fraud of the contractors. The court included in the judgment in the present case the sum of $1,052.25 for these costs and expenses. This it is claimed was error. The referee found the expenses to be reasonable and necessary in order to establish liability against Gilmore. As a result of the litigation with Gilmore the city recovered and applied on the liability of the defendants in this action $3,580.88, which it owed to Gilmore for paving, and to that extent the defendants received the benefit, having been allowed credit for that amount in the judgment in this case. The recitals of the surety bond bound the surety company to pay all damages, costs, and expenses of every kind, character, and nature incurred in consequence of the contract for constructing the sewer. The costs and expenses were properly included in the judgment. Bank v. Williams, 62 Kan. 431, 63 Pac. 744; Bourke v. Spaight, 80 Kan. 387, 102 Pac. 253.

[4] 4. The surety company presents one more contention. At the time it executed the bond it received from Brooks and Gilmore the sum of $7,500 in cash to indemnify it from loss upon the bond, but under an agreement which bound it to return the money as soon as the bond was released without liability to the surety company. It alleged in its answer these facts, and, further, that after the completion of the sewer it retained the money for a time, but was forced to surrender it to Brooks and Gilmore by threats and a demand to return the same made by the insurance department of the state of Kansas at the instance of the contractors, and by reason of an impending suit against it by the contractors. It was further alleged that the money was returned to Brooks & Gilmore only upon notice from James F. McCabe, city engineer, duly attested by the city clerk, that the contractors had completed the work in accordance with their contract,

and that the sewer had been accepted by the city. The court sustained a demurrer to this part of the answer.

The referee found that while the city paid Brooks & Gilmore the balance due on the contract, it took no other action toward accepting the sewer and the work upon the contract. Had there been no false charges, no bribery or fraud, there might be some force in the claim that the city, by paying the balance to the contractors, accepted the work as But completed according to the contract. the city was not aware of the fraud and the conspiracy whereby it suffered a loss. The obligation of the surety company was an unconditional promise to make good the defaults of the contractors. Under the authority of McMullen v. Loan Association, 64 Kan. 298, 308, 67 Pac. 892, 56 L. R. A. 924, 91 Am. St. Rep. 236, and Hier v. Harpster, 76 Kan. 1, 90 Pac. 817, 13 L. R. A. (N. S.) 204, 13 Ann. Cas. 919, we must hold that there was no positive duty resting upon the city to discover the fraud sooner, and that, notwithstanding the delay in seeking to enforce the surety's liability, and regardless of the fact that the surety had in the meantime surrendered its indemnity, the city is entitled to recover upon the bond the full amount of the loss sustained through the fault of the principals.

The judgment is affirmed. All the Justices concurring.

(100 Kan. 319; 101 Kan. 87)

BROWN et al. v. PAUL et al. (No. 20775.)
(Supreme Court of Kansas. April 7, 1917. On
Rehearing, June 9, 1917.)

(Syllabus by the Court.)
1. HIGHWAYS 30(6)—NOTICE OF VIEW.

Certain land was taken for a highway, no
notice of the view being served on the wife, a
joint life tenant, who lived in the county, and
no notice in fact to or waived by her.
that as to her the proceedings were void. Gen.
Stat. 1915, § 8759.

Held,

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 43, 65-67.]

2. DEEDS 133(1), 136-CONSTRUCTION-ESTATE OF LIFE TENANT.

A warranty deed was made to a son of the grantors subject to the conditions that "the above described premises to belong to the said Ira H. Kasbeer during his life and to his wife jointly if he should marry and while she remains his wife, or his widow, and in case he dies and leaves no issue and his widow should marry again, then the title to the said premises shall vest in the legal heirs of the said Ira H. Kasbeer, excepting the said widow so marrying, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein." He married one of the plaintiffs, and to them were born the others, and they are all claimed to the son all their right, title, and inliving. Subsequently the original grantors quitterest in the land "to him during his life and to have and to the heirs of his body hold unto the said party of the second part, bis heirs and assigns forever.' Held, that the children are mere heirs apparent with no vested interest or remainder, but the wife is joint tenant

*

for life during wifehood or widowhood, and therefore entitled to notice.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 368-370, 372, 431-433.]

3. DEEDS 9-CONVEYANCES.

Under section 2052 of the General Statutes of 1915, one may convey an interest in land to take effect in the future. Miller v. Miller, 91 Kan. 1, 136 Pac. 953, L. R. A. 1915A, 671, Ann. Cas. 1917A, 918.

[1-3] It will be observed that this conveyance seems to have vested a life estate in Ira H. Kasbeer and his wife jointly, should he marry, to continue as such joint life estate to the two and to her surviving, while she should remain his wife or widow; that in case he should die without issue, and she should marry again, then the title to vest in his legal heirs, counting out the widow, so that in case his parents were living it would go to them under the statute of deScents and distributions. What should happen in case he died leaving children and she remarried was not stated, and need not trouble us, for the reason that he and his wife [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.]

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 5.]

4. HIGHWAYS 64 INJUNCTION-DEMURRER. The demurrer to the petition was properly sustained as to the children on account of their uncertain and contingent interest, if any, in the land.

5. HIGHWAYS 64-INJUNCTION-Demurrer. As to the wife the demurrer was erroneously sustained, and unless within 60 days from the filing hereof with the clerk she signify her willingness to proceed no further, the injunction is to be made permanent.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 165, 334.]

H. Kasbeer running to him during his life and to the heirs of his body to have and to hold "unto the said party of the second part, his heirs and assigns forever." This would seem to vest him with their reversionary interest, or with whatever fee they retained when making the first conveyance.

Section 2049 of the General Statutes of

Appeal from 'District Court, Anderson 1915 provides that the term "heirs," or other County.

Suit by Hannah F. Brown, Lola F. Gregg, and Clara A. Kasbeer against N. T. Paul and others. Judgment for defendants on sustaining a demurrer to the petition, and plaintiffs appeal. Order sustaining the demurrer sustained as to plaintiffs Hannah F. Brown and Lola F. Gregg, and reversed as to plaintiff Clara A. Kasbeer, with directions to grant the injunction in her favor, unless she indicates her willingness not to proceed further.

F. J. Oyler, of Iola, for appellants. J. Q. Wycoff, of Garnett, for appellees.

WEST, J. A road was established through certain land in which the plaintiffs claim an interest, and, not having been served with notice of the view, and having had no notice thereof, and not having been present thereat, they brought this suit to enjoin the opening of the proposed highway. A demurrer to their petition was sustained, and costs assessed against the plaintiffs, who appeal. They claim to be remaindermen and to have such an interest in the land as entitled them to notice and to the maintenance of this suit. The defendants contend that the plaintiffs have no vested interest, and have no right to require notice or to be heard. The plaintiffs are the wife and daughters of Ira H. Kasbeer. In 1884 the land was conveyed by John S. and Hannah Kasbeer to their son, Ira H. Kasbeer, by warranty deed, subject to the following conditions:

"The above described premises to belong to the said Ira H. Kasbeer during his life and to his wife jointly if he should marry and while she remains his wife, or his widow, and in case he dies and leaves no issue and his widow should marry again, then the title to the said premises shall vest in the legal heirs of the said Ira H. Kasbeer, excepting the said widow so marrying, with the appurtenances, and all the estate, title and interest of the said parties, of the first part therein."

words of inheritance, shall not be necessary to create or convey an estate in fee simple; "and every conveyance of real estate shall pass all the estate of the grantor therein. unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant." In Kirby v. Broaddus, 94 Kan. 48, 50, 145 Pac. 875, the court, in discussing the rule in Shelley's Case, said of the grantor:

"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 do, and the attempted restriction is ineffective."

the conveyance was to the parties of the secIn Howe v. Howe, 94 Kan. 67, 145 Pac. 873, ond part, "their blood heirs and assigns": the warranty running to the second parties, their heirs and assigns, a life estate to the grantor being reserved by a separate clause. It was held that under this conveyance the grantees were to have power to convey, but if no conveyance were made the land was to descend to their blood heirs only, and that the words "blood heirs" were words of limitation, and not of purchase; that the limitation was void, and the grantees took estates in fee simple, and not estates for life. In the opinion (94 Kan. at page 69, 145 Pac. 873) a sentence from Washburn on Real Property, (6th Ed.) § 163, was quoted with approval, to the effect that an estate to one and his heirs male or heirs female would be regarded as a fee simple; the limitation to the particular class of heirs being regarded as surplusage. Another quotation from Hammond's Blackstone's Commentaries followed to the effect that the grantor cannot change the state's scend to his sons only. law of descent and make the property de

In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, L. R. A. 1916A, 671, 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 jurisdiction, and while the suit was to enjoin the defendants from establishing a road across the land, it was not the plaintiff's fault that before her rights could be adjudicated on appeal the road was open. In addition to setting out the facts in her petition she prayed for such "further and equitable relief as to the court may seem just and proper under all the facts and circumstances of the case." Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853. Had the notice been given, or had the wife waiving this matter appeared and demanded damages, injunction would not lie. Doubtless in case of allowance to her of proper damages she would not desire further to obstruct the continued use of the road.

Under the most favorable construction of the two deeds the children are contingent remaindermen and heirs apparent in whom no estate has as yet vested, and the wife, in addition to being heir apparent to her husband, is joint life tenant with him during her wifehood and widowhood. The first deed expressly provided that when Ira H. Kasbeer took a wife she should become joint tenant with him in the life estate granted subject to the conditions referred to, and, having become his wife, and thus come into her inheritance so to speak, it was not in the power of the grantors to divest her of the estate with which they had already clothed her. She was entitled to notice.

The wife being a resident of the county where the land is situated, and having done nothing to take the place of notice, the authorities were without jurisdiction to appropriate her land for highway purposes. Gen. Stat. 1915, § 8759. This doctrine was settled as long ago as 1877, and has been repeatedly declared since. Com'rs of Wabaunsee County v. Muhlenbacker, 18 Kan. 129; State v. Farry, 23 Kan. 731; Com'rs of Chase Co. v. Cartter, 30 Kan. 581, 1 Pac. 814; Bourbon County v. Ralston, 79 Kan. 432, 100 Pac. 288. [4, 5]. It appears that after the ruling on the demurrer and prior to the filing of formal notice of appeal the road was formally opened, and is now in general use. Counsel for the defendants contends that this renders this suft moot, and an injunction order incapable of enforcement, and cites authorities on the proposition that under such circumstances a ruling sustaining a demurrer will not be reviewed. In Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104, the injunction suit involved the possessory right to a corpse after it had rested in an Ohio cemetery for two years. The court said that when the subjectmatter of the suit has ceased to exist, and any order in respect thereto has become impossible of performance, the controversy presents nothing to be adjudicated but the question of costs. In State ex rel. v. Insurance Co., 88 Kan. 9, 127 Pac. 761, it appeared that during the pendency of an action to restrain companies from unlawfully combining an act was passed, covering the matter, so that no substantial benefit could be gained by the in

In view of the foregoing and of all the circumstances the order sustaining the demurrer is sustained as to the children Hannah F. Brown and Lola F. Gregg, and reversed as to the wife Clara A. Kasbeer, with directions to grant the injunction, unless within 60 days from the filing of this opinion with the clerk of this court the plaintiff Clara A. Kasbeer shall signify to the court below her willingness to proceed no further herein. All the Justices concurring.

On Rehearing.

The former order was made on the theory that the controversy might be adjusted. But the defendants have moved for leave to answer, and the cause will therefore be remanded for further proceedings in accordance with the former opinion, including leave to answer as to Clara A. Kasbeer. The motion for rehearing is denied. All the Justices concurring.

(100 Kan. 399)

STATE ex rel. BREWSTER, Atty. Gen., v.
BENTLEY, Mayor, et al. (No. 21333.)
(Supreme Court of Kansas. April 7, 1917.)

(Syllabus by the Court.)
1. MUNICIPAL CORPORATIONS 48(1)—STAT-
UTES 94(1), 120(3)—CITY MANAGER PLAN
-CONSTITUTIONALITY.

The act of the Legislature entitled "An act relating to the government of all cities in Kansas, and to establish an optional form of government," approved February 17, 1917, is a valid and constitutional enactment, so far as its operation and effect is challenged in this action.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128; Statutes, Cent. Dig. §§ 103, 171.]

The provision in the act which requires the mayor to call a special election to submit to the electors the question of the adoption of the new form of government upon the filing of a petition "signed by not less than twenty-five per cent. of the total number of legally qualified electors voting for mayor at the last preceding city election" is construed to mean that the petition must be signed by 25 per cent. of the number of legally qualified votes cast for mayor at the last election, without reference to the individ

2. MUNICIPAL CORPORATIONS 48(1)-CITY | the government of all cities of Kansas, and MANAGER PLAN-ELECTION-PETITION. to establish an optional form of government." It applies to all cities which shall adopt its provisions. It creates a governing board to consist of the number of commissioners provided for in the commission government act, and declares that "no distinction shall be made in titles or duties among the commissioners, except as the board shall organize itself for business." The chairman chosen by the commission takes the title of "mayor" during the year and becomes the head of the city "on formal occasions." Each commissioner draws a nominal salary, in no case to exceed $100 a year. The commission or gov

uals who cast them.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128.]

(Additional Syllabus by Editorial Staff.)

TION-PRESUMPTION OF VALIDITY.

3. CONSTITUTIONAL LAW 48. CONSTRUC-erning board is empowered to pass all ordiEvery 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 Constitutional Law, Cent.Dig. § 46; Statutes, Cent. Dig. § 56.] 4. STATUTES 159 SUSPENSION-POWER OF LEGISLATURE.

The Legislature always has the power by the adoption of a later act to suspend the operation of an earlier act, and where the two acts are in conflict the later expression of the legislative will controls.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 229.]

5. MUNICIPAL CORPORATIONS

125-CIVIL

He re

The act requires the commission to appoint a city manager in whose hands the administration of the business of the city is placed. He holds office "at the pleasure of the board," is chosen "solely upon the basis of administrative ability," and without reference to residence qualifications. ceives a salary to be fixed by the commission, and is held responsible to the commission for the administration of all the affairs of the city. Administrative departments of law, service, public welfare, safety, and finance are created. All appointments "except department heads" are made by the manager, 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 O. H. Bentley, Mayor, and and expenditures. others, being the Board of Commissioners of the City of Wichita and others. Peremptory writ allowed.

SERVICE LAW-REPEAL.

The civil service law has not the force of a constitutional provision, and may be repealed as to one class of cities and remain in effect

as to others.

S. M. Brewster, Atty. Gen., and Chester I. Long, Earl Blake, and Thos. C. Wilson, all of Wichita, for plaintiff. Jas. A. Conly, of Wichita, for defendants.

PORTER, J. This is an original proceeding in mandamus, and the question to be determined is whether an act of the Legislature approved February 27, 1917, which authorizes cities to adopt what is known as the city manager plan, is constitutional.

The foregoing presents a summary of the principal changes established in the government of cities adopting the act.

[3] We have often declared that every presumption must be indulged to uphold an act of the Legislature, and that every reasonable doubt will be resolved in its favor. The defendants realize that the statute in question lies intrenched behind these presumptions. More than 20 reasons are presented for striking down the statute, and the attack is made from all sides and leveled at every supposed salient, the general assault being preceded by what may be regarded as a "tir de barThe alternative writ, issued less than a rage" or "curtain of fire," 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- cient, and because of this and other reasons missioners, and the clerk 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 majority of votes for establishing the new form of government. Whether the peremptory writ shall issue depends upon the validity of the statute.

[1] The title of the act is sufficient. The act contains but one subject, which is clearly expressed in the title, and which is to authorize the establishment of an optional form of government in all cities. The ConstituSince 1909 the city of Wichita has been tion does not contemplate that the title shall Rural governed by the city commissioners' law. be an abstract of the entire act. 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 presently in connection with other general objections to the act.

The act is in no sense a special one. It is as general as possible for the Legislature to make it covering the subject. It applies to all cities which see fit to adopt or submit for adoption the city manager plan of government. It is said, and the court takes judicial notice of the fact, that a dozen or more cities adopted its provisions at the recent election. The decision in Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, 22 L. R. A. (N. S.) 534, upholding chapter 114 of the Laws of 1907, empowering cities to adopt the commission form of government, completely answers the contention that the act attempts to delegate powers. See, also, Wulf v. Kansas City, 77 Kan. 358, 365, 94 Pac. 207.

the park board to "create and provide for the payment of debts; draw warrants upon the city treasurer; purchase, possess, sell and convey real and personal property; make contracts; issue bonds; levy taxes and special assessments; and do all other acts proper or necessary to carry out the provisions of this act, subject only to the limitations contained in this act." In many other respects the Legislature conferred power and authority limited only by the judgment and discretion of the park board. In passing upon the contention that the act is repugnant to article 12, § 5, of the Constitution, the following extract from the opinion in the early case of Hines v. Leavenworth, 3 Kan. 186, 204, was quoted:

"When a law is passed embracing any of the 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 abuses. 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 sufficient restriction, if it be a restriction plan or Dayton plan of administration of at all, must be final." municipal affairs contemplates the employment by the city of an executive experienced in business and with technical skill and knowledge which will enable him to conduct the city's business so far as practicable just as a great private business is successfully conducted and thereby substitute efficiency and economy for inefficiency and waste. The Legislature was not proceeding blindly in leaving the matter of his salary to the discretion of the governing board. The fixing of his salary was not only left with the board, but the act expressly declares that in selecting the manager qualifications as to residence should not control, so that, if deemed advisable, the board may choose as manager a nonresident of the state. Recognizing the difficulty in fixing a salary without information as to the amount necessary for a city to pay in order to secure the services of a manager suitable to its requirements, the Legislature also saw fit to leave to the discretion and judgment of the commission the determination of what the city could afford to pay for the services of its manager. In the wisdom of the Legislature no special restriction was deemed necessary to prevent an abuse of power in fixing the salary of the

manager.

In Wulf v. Kansas City, supra, the valid ity of chapter 115 of the Laws of 1907 was attacked on the ground that it attempted to delegate to a park board the power to incur indebtedness and levy taxes in violation of this same section of the Constitution. Section 4 of the act authorizes the park board at will to "appoint, employ and discharge such engineers, surveyors, attorneys, agents, clerks and servants as it may deem necessary, and

It was held that the park board act was not in conflict with section 5 of article 12 of the Constitution, and further that it does not attempt to delegate legislative powers. It is urged, however, that the act is in direct conflict with this provision of the Constitution (article 12, § 5), because, it is said, it places no restrictions on the powers of cities in taxation, assessment, borrowing money, contracting debts, and loaning their credit. Aside from creating the office of a general manager, upon whose shoulders are placed all the purely administrative functions heretofore exercised by the commissioners or by the mayor and council, and directing that certain administrative departments be established, the only other radical change in the plan of city government which the new act provides for is the budget system, which is especially designed as a restriction upon the power of the city in contracting debts. The very purpose of the budget is to compel the adoption of practical business methods in the appropriation and expenditure of the finances of the city. To this end the act requires the manager to prepare and submit to the governing body a yearly budget and to keep the city fully advised as to its financial condition and needs. The public is to have ample opportunity to be heard upon the various items of the proposed budget before it is finally adopted by the governing body. Section 14 of the act provides:

"Sec. 14. The accounts of the city shall be kept by the treasurer of the city in such a way that a full statement of the city finances may be made each month. Expenditures shall be legal only on the basis of appropriations in the budget, and on the authority of warrants issued by the director of finances countersigned by the

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