case they shall levy a special tax of one-half the amount agreed upon to be levied, not exceeding three mills on the dollar, for said purpose, in eighteen hundred and eighty-six, and a like amount in eighteen hundred and eighty

seven.

"Sec. 2. The said board shall employ a competent and qualified architect, of known skill and ability in his profession, who shall submit plans, specifications, and estimates for the said jail and jailer's residence, which being adopted by said board, they shall advertise for bids, either for the whole work, or for parts of said work, each bidder to file with his bid a bond with two sureties, worth, over and above all legal liabilities and exemptions, double the amount of the said bid, conditioned for the faithful performance of the work should the contract be awarded to him. The architect shall make all estimates on work performed and material furnished on all contracts, reserving to the county ten per centum in authenticating all estimates of work performed, or material furnished, until such contract shall be completed, inspected, and accepted by the said board.

"Sec. 3. As soon as practicable after the passage of this act, the contract for said jail and jailer's residence shall be let to the lowest responsible bidder, and estimates for work performed and material furnished shall be submitted monthly to the said board by the architect; whereupon the said board is hereby authorized to issue scrip, to be designated as “Shawnee County Jail Scrip," bearing seven per cent. interest per annum, which scrip shall be signed by the chairman of said board, and attested by the county clerk, and be redeemed by the county treasurer at his office, according to date of issue of said scrip, just as rapidly as money arising from the levy herein provided for shall accumulate in the country treasury.

"Sec. 4. This act shall be in force on and after its publication in the Daily Topeka Capital.

666 Approved February 4, 1886.

666

"I hereby certify that the foregoing is a true and correct copy of the original enrolled bill now on file in my office, and that the same was published in the official state paper, February 5, 1886.

"E. B. ALLEN, Secretary of State.' "The plaintiffs further state that the defendant is about to employ an architect under the provisions of the before-mentioned act, and will do so at once unless restrained by the order of this honorable court.

"The plaintiffs further state that the defendant is about entering into a contract for a jail and jailer's residence under the provisions of said act, and will do so unless restrained by the order of this honorable court.

"The plaintiffs further state that the defendant will, at the time fixed by law for making the next general annual levy of taxes, levy a special tax on all the taxable property within said county of Shawnee, and including all the property of the plaintiffs, both real and personal, and will do so unless restrained by the order of this honorable court.

"The plaintiffs further state that the defendant, in addition to making the contract aforesaid, will speedily thereafter issue scrip, to be designated as Shawnee County Jail Scrip,' under the provisions of said act, and will do so unless restrained by this honorable court.

"The plaintiffs further state that all the acts of the defendant aforesaid, threatened to and about to be done, are illegal and void in this: (1) That the pretended law hereinbefore recited, and under whose pretended provisions all the aforesaid acts of the defendant are threatened to be done, is void; (2) that the subject-matter is not embraced within the title of the act; (3) that the title of the act does not authorize them to levy a tax, nor is the levy of a tax within the scope of the title of said act; (4) that the authority to contract for a jail and jailer's residence, and to employ an architect, is not embraced or included in the title of the act; (5) that the expenditure of money for, or the

levy of a tax to pay for, a jailer's residence, is not for a public purpose; (6) that there is now, and has been for a long period of years, within the county of Shawnee, and in use, a jail, provided and built according to the general law, and pursuant to and by a levy of tax for the payment thereof on the taxable property of Shawnee county; (7) that there is upon the statute books a requirement of law, and which is unrepealed, that requires the defendant, before they shall proceed to build any permanent county buildings, and assess a tax for that purpose, that the defendant shall first submit the question to a vote of the electors of the county at some general or special election, and must be authorized by an affirmative vote cast at said election.

"And the plaintiffs aver that the defendant proposes to let the contract for said jail and jailer's residence without submitting it to the electors of Shawnee county.

"And the plaintiffs further aver that the jail and jailer's residence proposed to be built by the defendant is intended to be, and will be, a permanent county building, and that no election whatever has ever been held or submitted to the electors of said county authorizing the same to be done.

"The plaintiffs further state that the defendant proposes to employ said architect, and make said contract, and pay for the same by the issuance of Shawnee county jail scrip, bearing seven per cent. interest per annum, and which these plaintiffs aver will be done without having any of the claims concerning the same audited, and contrary to the law in such cases made and provided concerning expenditures in said county. And for such other reasons as may be urged in argument upon the hearing hereof, the plaintiffs again aver, and charge the fact to be, that all of said contemplated acts of the defendant under said pretended law, and the law itself, are null and void.

"The plaintiffs further state that if the defendant is permitted to hire said architect, to contract and build said jail and jailer's residence, issue scrip therefor, and levy said tax to pay said scrip, that it will inflict a large amount of illegal expenditure and unnecessary tax charges upon the property of the plaintiffs, and to their, and each of their, great and irreparable injury.

"Plaintiffs aver and charge the fact to be that the taxable property of Shawnee county exceeds five millions of dollars, and that a levy made by the defendant under the statute passed in 1886 will make the current expenses of Shawnee county exceed five mills upon the dollar.

"Wherefore the plaintiffs ask that a temporary injunction may issue restraining the defendant from hiring said architect, from the building of said jail and jailer's residence, from issuing any Shawnee county jail scrip in payment thereof, or from levying said tax provided by said pretended act, and that upon a final hearing the plaintiffs demand that said injunction may be made perpetual, and for such other relief as may be proper, and for costs of suit."

This petition was duly verified.

On March 27, 1886, the plaintiffs, upon this petition, and upon no other pleadings or evidence, asked the court to grant them the temporary injunction prayed for; which the court refused; and to reverse this ruling of the court below, refusing the temporary injunction, the plaintiffs bring the case to this court.

H. H. Harris and Waters & Chase, for plaintiffs in error. Safford and Charles Curtis, for defendant in error.

Overmeyer &

VALENTINE, J. The only question involved in this case is whether chapter 74, Laws 1886, ("An act authorizing and directing the county commissioners of Shawnee county to levy an assessment to build a jail and jailer's residence," approved February 4, 1886,) is constitutional and valid or not. The court below, the superior court of Shawnee county, upon an application for a temporary injunction, held it to be constitutional and valid, and refused

the injunction, (3 Kan. Law J. 118;) and from that refusal the plaintiffs bring the case to this court. The question is now of but very little importance, for the jail and jailer's residence-one building—has already been built, and all the other matters and things which the plaintiffs wish to have restrained have been performed. Really, the only material question left in the case is, who shall pay the costs? We think the act is valid. The words "levy an assessment," in the title to the act, was intended to mean levy a tax; and, as the tax was "to build a jail and jailer's residence,” the legislature had authority to provide in the body of the act, as they did, for the building of such jail and jailer's residence, including all the necessary details. The jail and jailer's residence was intended to be only one building.

Even if Shawnee county already had a jail, that fact would not prevent the legislature from giving authority to the county commissioners to build another jail; and the fact that there may have been a general law authorizing the building of county jails would not prevent the legislature from passing a special act for the same purpose, provided the general law could not well be made applicable. Also, the fact that the act authorizes the county commissioners to build a jail, without submitting the question to a vote of the electors of Shawnee county, we do not think renders the act void. In fact, we think the act is valid, and the judgment and order of the court below will be affirmed.

(All the justices concurring.)

(37 Kan. 226)

STATE . DORSEY.

(Supreme Court of Kansas. October 8, 1887.) LARCENY-APPEAL-RECORD OMITTING EVIDENCE AND INSTRUCTIONS.

Where defendant claims, on appeal, that he was erroneously tried and convicted for larceny generally, while he should have been tried under the statute relating t pick-pockets, and the record does not properly show the evidence or the instructions refused by the trial court, and does not otherwise show the manner in which the property was stolen, the judgment will be affirmed; following State v. McClintock, 14 Pac. Rep. 511.

Appeal from district court, Summer county; J. T. HERRICK, Judge.

S. B. Bradford, Atty. Gen., and J. L. Grider, for the State. Roy & Neustadt, for appellant.

PER CURIAM. The defendant, Robert Dorsey, was charged upon a criminal information with stealing certain United Stated treasury notes and certain national bank-notes of the aggregate value of $30, and the property of Charles Carr. He was tried upon this charge and convicted, and was sentenced to imprisonment in the penitentiary for the term of two years; and from this sentence he now appeals to this court. He now claims that the larceny was committed by means of his taking the money from the pocket of said Charles Carr; and claims that the conviction was therefore erroneous; and this he claims upon the theory that the defendant was charged, tried, and convicted for larceny generally, under section 78 of the act relating to crimes and punishments; while he should have been and could only be tried or convicted for pocket-picking, under chapter 105 of the Laws of 1886, relating to pick-pockets. The question, however, which is attempted to be presented to this court, is not in the case; for neither the evidence nor the instruction refused by the trial court have been properly preserved in the record, nor is there anything else in the record which shows the manner in which the money was stolen. The judgment of the court below will be affirmed upon the authority of the case of State v. McClintock, 14 Pac. Rep. 511.

(37 Kan. 253)

Board of Co. COM'RS OF WABAUNSEE Co. v. BISBY.
(Supreme Court of Kansas. October 8, 1887.)

HIGHWAYS-AWARD OF DAMAGES-APPEAL-REVIEW.

Where an appeal is taken by a land-owner from an award of damages allowed for the location of a public road across his lands, held, that the only question the court has jurisdiction to hear and determine on said appeal is the amount of damages appellant is entitled to; and further held, that it is no defense to said action that a public road had been previously laid out and established over the same right of

way.

(Syllabus by Clogston, C.)

Error from district court, Wabaunsee county; R. B. SPILMAN, Judge.

This was an appeal to the district court of Wabaunsee county from the allowance of damages by the board of county commissioners on account of the location and establishment of a public.road through the lands of the defendant in error. Trial by the court, jury being waived, and judgment for the plaintiff below, defendant in error, for $99.40 costs, and the county brings the case here for review.

W. A. Doolittle, for plaintiff in error. H. A. Pierce, for defendant in er

ror.

CLOGSTON, C. The only errors complained of in this case are--First, that the court erred in refusing to allow the defendant to introduce in evidence the township record, tending to show a location and establishment of a public road through plaintiff's land in 1859; second, the court erred in refusing to admit in evidence the record of the county clerk, tending to show the location of a public road over a part of the plaintiff's land in 1868; and, third, that the judgment ought to have been for the defendant below, instead of for the plaintiff. The statute under which this appeal was taken is as follows:

"Sec. 7. It shall be the duty of the viewers, at the same time that they make their report of the view, to make also a separate report to the county commissioners in writing, stating the amount of damages, if any, by them assessed, and to whom. They shall also be required to submit with such report the written application on which assessments have been made. All allowances for damages, as provided in this act, shall be subject to revision by said board of county commissioners; and any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decision of the said board of county commissioners to the district court, upon the same terms, in the same manner, and with like effect as in appeals from judgments of justices of the peace in civil cases."

Under this provision the only thing that the district court had jurisdiction to hear and determine was the amount of damages plaintiff was entitled to; nothing else. The location and establishment of the road was final when it was located and established by the board of county commissioners. Then only such testimony as tended to establish or show the damages of the plaintiff was competent. The proceedings before the county commissioners were the regular proceedings to establish a public road. A petition had been presented; publication had; viewers appointed; notice to land-holders given. The viewers met, together with the surveyor, and surveyed and located the road. They heard claims for damages, and made awards of damages, and allowed the plaintiff $10. Their report was properly made to the board of county commissioners. The commissioners confirmed their report, and allowed the plaintiff the same damages awarded by the viewers. From this award of damages he appeals.

The evidence sought to be introduced to show, or tending to show, that a road had been established over this same route by the county some years before, was not competent for the purpose of showing the amount of his damv.15p.no.5-16

ages. The county was treating this matter as if no road had ever been located there. Whatever proceedings had taken place prior to that time they were entirely ignoring. They were saying to the defendant, "We are going to locate and establish a road over your land, and, if you claim damages, you must present your claim;" and after it has done this it cannot be heard to say, "A public road is already established over this same route, and therefore you are not damaged.' Such a claim would be proper if this was an application to compel the defendant to open a public road which it was alleged he had obstructed or closed up. The evidence clearly shows that the plaintiff was entitled to at least the amount found by the court.

It is recommended that the judgment of the court below be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 212)

SACHROWITZ v. ATCHISON, T. & S. F. R. Co.

(Supreme Court of Kansas. October 8, 1887.)

RAILROAD COMPANIES-ASSAULT UPON PASSENGER BY STRANGER.

Where it appears that the plaintiff, while standing upon the platform of one of the cars of a train, which he was about to enter as a passenger, was knocked off and robbed, just as the train started, by a person holding a lantern in one hand and a club in the other; and where it does not appear that the person committing the assault and robbery was an employe of the railroad company, otherwise than that he carried a lantern with letters on it, and wore a cap with a badge upon it; and where it does not appear that the assault was made in ejecting, or attempting to eject, the plaintiff from the cars, by any one connected with the operation of the train, or having any charge of the depot, its grounds, or the road; and where it further appears that the alleged assault was wholly disconnected from any service in which any employe of the railroad company was engaged: held, that the railroad company operating the train is not responsible for the wrongful acts committed upon the plaintiff, under a petition charging that the plaintiff was assaulted and injured by the servants and employes operating and controlling a train of the company.

(Syllabus by the Court.)

Error from district court, Reno county; L. HOUK, Judge.

W. T. Buckner, for plaintiff in error. Geo. R. Peck, A. A. Hurd, and C. N. Sterry, for defendant in error.

HORTON, C. J. This action was brought by the plaintiff in error to recover damages for personal injuries which he alleges he sustained through the conduct of one of the servants or agents of the defendant in error. The defendant, in its answer, averred that the plaintiff sustained his injuries in attempting to climb upon a freight car while in motion, with the intention of riding on the car without paying any fare.

On the trial, the plaintiff gave evidence tending to show that he was a Hebrew, and had only been living in the United States some two years; that just previous to his injuries he had started to go from Pueblo to Kansas City, and had purchased a ticket to be transported from Pueblo to Kansas City over defendant's road; that he had a grip-sack containing his personal effects, which he shipped by express to Kansas City, not wishing to be bothered with it on the cars; that when he had reached a point between Hutchinson and Burrton, the conductor put him off the train he was riding on because he had either lost the pasteboard given him by a former conductor, or that conductor had taken it up; that when he was put off the train he had about five dollars in money; that he walked on to Burrton, reaching their shortly after noon; that while at Burrton he met a young man with whom he could talk a little, as this young man could talk German; that he gave this young man a half dollar in exchange for a cigar-case, and then walked around with him until towards evening, when they went into a private house and got a meal;