seven miles long and four miles wide, and embraces many surveys of unoccupied land, and numerous stock ranches and farms."

One of the relators testified that he resided in the Town of Hamilton, and that he knew the extent and limits of the town, and that “it does not extend from its central point more than three fourths of a mile, and would be entirely embraced by a circle whose radius is three fourths of a mile in length.' This testimony is wholly uncontradicted, and the facts testified to must be taken as established. If they were not true, witnesses could easily have been found to disprove them.

It therefore appears that at the time the election was ordered the real Town of Hamilton embraced an area of not more than two square miles, and the question arises whether the Statute authorizing the incorporation of towns and villages was intended to confer upon the inhabitants of any district of country including a town the power to incorporate with limits embracing many square miles of rural territory. If it be held that this power does not exist then the attempted incorporation under consideration is void, and it is unnecessary to determine any other question in the case. In determining whether the power exists or not, we must not lose sight of the purpose of the Statute under which it is sought to be exercised, nor of other statutes upon similar subjects. It is not the object of the Statute in question to confer the power upon the inhabitants of any district in a county to vote a tax upon themselves for the support of the public schools, in addition to the state tax which is levied for that purpose. That power is conferred upon the inhabitants of the school districts by the Act of February 6, 1884. Sayles, Ann. Stat. art. 3733.

The Statute which authorizes towns and villages to establish by a vote a corporation for school purposes only, is by its terms made a part of that chapter of the Revised Statutes which provides a mode for the incorporation of such municipalities. It is only "towns and villages authorized to incorporate under" that chapter which are authorized to incorporate for school purposes only. Id. art. 541a.

The Revised Statutes authorize towns to establish a corporation by an election, provided they contain more than 200 and less than 10,000 inhabitants. Article 506.

No definition of the word "town" is given, and it follows that we must take the word in its ordinary signification,-a collection of inhabited houses. The term carries with it the idea of a considerable aggregation of people

living in close proximity. A town population is distinguished from a rural population, which is understood to signify a people scattered over the country, and engaged in agricultural pursuits, or similar avocations, requiring a considerable area of territory for its support. A section of country so inhabited cannot be called a town, nor treated as part of a town, without doing violence to the meaning ordinarily attached to that word. It follows, from this, that the Legislature did not intend to confer the power of incorporating by election upon a district of country inhabited by people living in residences widely disseminated over its area. The power is conferred only upon towns and villages, and is confined to the actual residents of such localities; and does not carry with it, and confer upon a town, authority to extend the boundaries of the corporation beyond its own actual limits. This ruling is in accordance with the policy of other statutes of a like character. A city already incorporated cannot extend its limits by any one election further than a half of a mile. East Dallas v. State, 73 Tex. 370.

The object of the limitation is to prevent a city from extending its limits, so as to take in a population purely rural; and the policy of the limitation is founded upon the idea that it is unjust to subject a people to the burdens of a municipal government who share none of its benefits. We are aware that in the application of the rule here laid down difficulties are likely to arise. In many instances it may be no easy task, without giving to the town a most irregular shape, so to define its limits as to embrace all its residents, and to exclude at the same time all the rural population living in the vicinity. What should be done in such cases, when a few people not properly belonging to the town have been included, we need not now determine. This case presents no question of difficulty of that character. Here the attempt was to establish a municipal corporation, extending over twenty-eight square miles of territory, not more than two of which were covered by the town. We think this cannot be done, and that the attempted Act of Incorporation was without authority of law, and is void.

The judgment of the District Court is therefore reversed, and a judgment here rendered declaring the attempted Act of Incorporation void, and ousting the respondents from the exercise of the functions of trustees of the alleged Town. The respondents are also adjudged to pay all costs, both in this court and the court

below.

et al.,

C.

A. A. LE SUEUR, Secretary of State.

(....Mo.....)

1. An association for the encouragement of debating, reading and litera

amusements, and the playing of ten-pins, chess and checkers and other lawful games, having no pecuniary profit in view, and no connection with any business purposes, or with politics, and whose articles provide that no saloon shall be kept in connection with it and no drinks sold by the club or any of its members, may be regarded as an educational association, entitled to be incorporated without the payment of a tax on capital

2. Section 2834, Rev. Stat. 1889, which provides for the incorporation of pleasure clubs without requiring them to pay a tax on capital stock, is void in so far as it undertakes to allow the creation of corporations for other than benevolent, religious, scientific or educational purposes.

(Ray, Ch. J., and Brace, J., dissent.)

(February 24, 1890.)

lators.

ment of rational social amusements, and the playing of ten-pins, chess and checkers, and other lawful games of the kind. But it is hereby expressly declared that there shall be no saloon in connection with said club, and no drinks shall be sold by the said club or any of

Black, J., delivered the opinion of the

court:

The relators joined in articles of agreement for the purpose of being incorporated by the name of the "La Fayette Park Club," under art. 10, chap. 42, Rev. Stat. 1889, which article consists of sections numbered from 2821 to 2835. On the petition of the relators, the Circuit Court of the City of St. Louis made a pro forma decree, declaring that the articles of agreement and the purposes of the association came within the purview of said article, and

were not inconsistent with the Constitution or laws of the United States or of this State. The decree was made pursuant to section 2822.* The articles of agreement and the decree having been duly recorded in the office of the recorder of deeds, the relators presented the same to the Secretary of State, and, without the payment or offer to pay the tax mentioned in section 21 of article 10 of the Constitution, requested him to file the same, and make out and deliver to them a certified copy thereof, that being the final act which gives to the association a corporate existence. The secretary refused to file the articles and issue a certified copy, and hence this proceeding against him by manda

mus.

The refusal of the secretary is put upon the ground that the proposed corporation is not one

*The material portions of that section are as follows;

"If the court shall be of the opinion that such articles of agreement and the purposes of the association come properly within the purview of this article, and are not inconsistent with the Constitution or laws of the United States, or of this State, the court shall enter of record an order to that effect, a certified copy of which order shall, by the clerk, be indorsed upon or attached to said articles.

The Secretary of State shall issue to the petitioners a certified copy of such articles of agreement, with the several certificates thereon as filed in his office, which certificates shall be the charter of incorporation; and thereupon the petitioners, their associates and successors, shall be created and be a body corporate and politic, by the corporate name designated in such charter, and such charter. together with this article, shall be received in all courts and places as legal evidence of the incorporation of such association." [Rep.]

its members. It is further declared that this manufacturing, agricultural or business purposes of any kind, nor shall it have any connection with politics or a political organization, nor shall it have in view any pecuniary profit of any kind, but it shall be limited to the general objects above set forth."

Section 21 of article 10 of the Constitution

provides: "No corporation, company or association, other than those formed for benevoshall be created or organized under the laws of lent, religious, scientific or educational purposes, this State, unless the persons named as corporators shall, at or before the filing of the articles of association or incorporation, pay into the state treasury fifty dollars for the first fifty thousand dollars or less of capital stock, and a further sum of five dollars for every additional ten thousand dollars of its capital stock," etc

Section 2821 of the Revised Statutes of 1889 provides, in general terms, that associations may be incorporated for "benevolent, religious, scientific, fraternal, beneficial or educational purposes;" and section 2825 enters more into details, and, after providing for the formation of corporations for benevolent and religious purposes, provides: "Any school, college, institute, academy or other association formed for educational or scientific purposes, including therein any association formed especially to promote literature, history, science, information or skill among the learned professions, intellectual culture in any branch or department, . . and, in general, any association, society, company or organization which tends to the public advantage, in relation to any or several of the objects above enumerated, and whatever is incident to such objects, may be created a body corporate and politic."

In the view we take of this case, it is unnecessary to recite other statutory provisions. Section 21 of article 10 of the Constitution is

That section is as follows: "Any association formed for the purpose of establishing a gymnasium or club-house, or for promoting boating, field sports or other rational amusements, or for any other purpose not excluded by section 2829, lawful in itself and not otherwise specially provided for, may also, by complying with sections 2821 and 2822, become a body corporate and politic and under this article shall possess all the rights and privileges and be subject to the limitations and requirements herein provided, so far as the same are applicable thereto." [Rep.].

The Legislature can neither enlarge nor reduce the corporate limits of a city.

Gray v. Crockett, 30 Kan. 138; Wyandotte v. Wood, 5 Kan. 603.

But such power may be conferred upon some tribunal or officer not specially prohibited by the Constitution from exercising such functions. People v. Provines, 34 Cal. 540.

The jurisdiction exercised by the judge is not legislative in its nature.

Burlington v. Leebrick, 43 Iowa, 252; Wahoo v. Dickinson, 23 Neb. 426; Kirkpatrick v. State, 5 Kan. 673; Mendenhall v. Burton, 42 Kan. 570; Re Johnson, 12 Kan. 102; Intoxicating-Liquor Cases, 25 Kan. 751; Blanchard v. Bissell, 11 Ohio St. 96; Morristown v. Shelton, 1 Head (Tenn.) 24; Kayser v. Bremen, 16 Mo. 88; Cincinnati, W. & Z. R. Co. v. Clinton Co. 1 Ohio St. 88.

Simpson, C., delivered the following opin

ion:

This case was commenced in the district court of Geary County to restrain the City of Junction City, a city of the second class, and the other defendants in error, who were ap pointed appraisers to assess damages occasioned by laying out and opening streets through the land of the plaintiff in error, from further proceedings. An application was made to the district judge to grant a temporary restraining order, all parties being represented by counsel, and the writ was denied. The case is here to review the order denying the temporary writ. The case was heard below on the petition, answer and reply, and the facts admitted by the pleadings are as follows: The land of plaintiff in error is a three-cornered tract, containing about 28 acres. This tract of land was embraced within the corporate limits of the City by an ordinance approved July 9, 1889,

that reads as follows:

to wit:

"An ordinance relating to and extending the corporate limits of the City of Junction City. Whereas, a petition in due form has, in manner provided by law, been presented to the Hon. M. B. Nicholson, judge of the District Court of Geary, formerly Davis County, Kansas, asking said M. B. Nicholson, as judge of said district court, to make findings as to the advisability of extending the corporate limits of the City of Junction City so as to include therein the body of land adjacent to said City, and commonly known as Callen's Field,' the particular description thereof being as follows, Lot two (2), section one (1), town twelve (12) south, range five (5) east of the sixth (6th) principal meridian in Kansas. And whereas, said M. B. Nicholson, as judge of the District Court of Geary, formerly Davis County, Kansas, on the 18th day of May, 1887, at the City of Council Grove, in Morris County, Kansas, upon the hearing of the matter contained in said petition, did find as follows, to wit: (1) That it will be to the interest of the City of Junction City to extend the corporate limits thereof so as to include therein the body of land adjoining said City, more particularly described as follows, to wit: Lot two (2), section one (1), town twelve (12) south, range five (5) east of the sixth (6th) principal meridian in Kansas, and generally known as 'Callen's

|

Field.' (2) That it will be no manifest injury to the owners of the aforedescribed land to have the same included within the corporate limits of said City of Junction City. And whereas, upon appeal taken from said findings to the Supreme Court of the State of Kansas by the owners of said described land, the said supreme court duly found and ordered and adjudged that it had no power to reverse, vacate, set aside or modify said findings: Therefore, be it ordained by the mayor and councilmen of the City of Junction City: Section 1. The corporate limits of the City of Junction City are hereby extended so as to include therein the body of land adjacent to said City, more particularly described as follows, to wit: Lot two (2), section one (1), town twelve (12) south, range five (5) east of the sixth (6th), principal meridian in Kansas, and generally known as 'Callen's Field.' Sec. 2. This ordinance shall take effect and be in force from and after its publication once in the Junction City papers. "Chas. P. Fogelstrom, Mayor.

"Approved July 9, 1889. (L. s.)

'Attest: J. B. Callen, City Clerk."

The

This ordinance is pleaded by the defendants in error as justification of their acts. reply of the plaintiff in error to this answer alleges that the Statutes and ordinances under and by virtue of which all proceedings were had and acts done are, and were at the time, unconstitutional and void, and all of said proceedings were had without authority of law, and are null and void. The contention of the plaintiff in error is this: That section 1 of chapter 69 of the Laws of 1886 *is unconstitutional for the following reasons: First. That, as no remedy is provided for the aggrieved party by appeal to any court or tribunal whatever, it is in conflict with section 1, art. 14, of the Constitution of the United States, and thus deprives a person of property without the due process of law. Second. It is in conflict with article 7 of the Constitution of the United States, in this: that there is no provision made

*That section is as follows:

SECTION 1. That section 1 of an Act entitled "An

Act to Enable Cities of the Second Class to Extend Chapter 100 of the Laws of 1872, and Chapter 73 of Their Corporate Limits, and to Repeal Section 133 of the Laws of 1875," approved March 4, 1885, shall be and is hereby amended so as to read as follows: city of the second class desire to enlarge the limits Section 1. That whenever the city council of any thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the judge of the district court of the county in which said city is situated, setting forth by metes and bounds the territory sought to be added, and asking said judge to make a finding as to the advisability of adding said terrritory to said city. Upon such petition being presented to said judge with proof that notice of the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper timony as to the advisability of making such addipublished in said city, he shall proceed to hear tes tion, and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to the persons owning real estate in the territory to its interests, and will cause no manifest injury sought to be so added, he shall so find; and thereupon the city council of said city may add such the same: Provided, That no such proceeding shall territory to said city by an ordinance providing for be necessary where the territory sought to be added is subdivided into lots and blocks; but in such cases the city council of said city shall have power to add such adjacent territory to said city by ordinance. [Rep.]

nor an opportunity given whereby a party at interest may obtain a trial by jury. Third. For the reason given, it is unconstitutional, being in violation of section 5 of the Bill of Rights of the State of Kansas, by violating the right of trial by jury. Fourth. That the com pensation provided for by law for property taken for public use, as followed in this case, is inadequate, unjust and an unconstitutional method, inasmuch as the appraisers provided for by law are authorized to take into consideration the benefits to be derived by, as well as the damages incurred to, the owner. Fifth. Said Law of 1886 is unconstitutional, and in violation of section 18 of the Bill of Rights of the State of Kansas, which provides that all persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law and justice administered without delay.' This proceeding takes private property for public use without just compensation. Sixth. It is in conflict with section 4 of article 12 of the Constitution of the State of Kansas, which provides that no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation. Seventh. Said Law of 1886 is unconstitutional, and in violation of section 1, art. 2, of the Constitution of the State of Kansas, in attempting to delegate a legislative power to the judiciary. Eighth. The law is a special one, conferring corporative power."

As to the first objection assigned, it is only necessary to say that the change of the status of a tract of land from a farm to city lots, by the exercise of a power granted cities to extend their limits, is not a deprivation of property without due process of law. As to the second and third objections, it may be remarked that, if the extension of the limits of a city is a purely legislative power, as the plaintiff in error claims, such a power is not exercised by means of a jury trial. To the fourth objection a sufficient answer is found in the statement that neither the Statute we are consider ing, nor the ordinance passed in pursuance of it, has anything to do with the question of compensation. He might raise the question embraced in the objection on an appeal from the award of the commissioners. The fifth objection mingles legislative and judicial considerations, but the pith of it is contained in the last sentence; but it must be obvious to all that a mere change in the use of land from agricultural to city purposes is not taking private property for public use. The case of Pottawatomie Co. v. O'Sullivan, 17 Kan. 58, holds that section 4, art. 12, of the Constitution of this State has application only to canals, railroads and other similar cases in which some corporation takes a use or benefit in the land other than that enjoyed by the public. It is claimed in the eighth objection that the law is a special one, but this is entirely unsupported. By the express terms of the Act, it applies to all cities of the second class.

This leaves the seventh objection to contain the spinal marrow of the contention of the attorneys of the plaintiff in error,-that by this Statute the Legislature attempted to delegate a

legislative power to a judicial officer. The Legislature of this State has in express terms conferred upon the judges of the district courts the power to hear and determine whether a proposed ordinance of a city of the second class, extending its limits so as to embrace certain described tracts of land, will be to the interest of the City, and will cause no manifest injury to the persons owning the land. If the findings of the district judge are in favor of the extension, the city is then empowered to pass such an ordinance. If the findings are against the extension, the City has no power to enact that ordinance. While the mode of procedure prescribed by the Act conferring the power is different from that provided in the commencement and conduct of an ordinary action, yet all the essential features and requirements of that "due process of law" that is necessary to give vitality, force and effect to judicial proceedings everywhere are scrupulously observed. The ordinance must be published in the official paper of the City a certain length of time, so as to give notice to all persons whose property interests are in any manner changed or affected by its operation. All such persons are given the right and opportunity to be heard on the question, and to offer evidence to show the injurious operation of the ordinance. The judge has power, after such a hearing, to approve, disapprove or modify the proposed ordinance, and to make findings which, in effect, control the extension of the limits of the City. It would seem that by its terms the section in question does not require the judge to perform any other duty than one purely judicial in its character. The precise question, however, is that, while the exercise of the power conferred is through the instrumentalities of a court, with a close assimilation of the mode and manner of the ordinary exercise of judicial power, the power itself is legislative, and not judicial; that the manner of its exercise does not change the character of the power; that this is legislative power, although attempted to be exercised by the judge, and is violative of, and repugnant to, the distribution of power made by the Constitution among the co-ordinate branches of the state government. This question is one about which courts of last resort differ, their decisions being both contradictory and antagonistic. It being a question of doubt, therefore, it should be resolved against the plaintiff in error, as it is a well-settled rule that the action of the law-making power must in all cases be applied, unless it is manifestly in contravention of the Constitution. In favor of the jurisdiction under statutes similar in scope and expression to our own, see the following cases: Kayser v. Bremen, 16 Mo. 88; Blanchard v. Bissell, 11 Ohio St. 96; Borough of Little Meadows, 35 Pa. 335; Wahoo v. Dickinson, 23 Neb. 426; Burlington v. Leebrick, 43 Iowa, 252.

Against the jurisdiction, see the cases of Galesburg v. Hawkinson, 75 Ill. 152; People v. Bennett, 29 Mich. 453; State v. Simons, 32 Minn. 540; People v. Carpenter, 24 N. Y. 86.

There may be other cases, but these are sufficient to indicate the conflict on the question. Our own view can be expressed in a few sentences.