with all the other questions. State v. Gould, 40 Kan. 258, 19 Pac. Rep. 739.

Several other alleged errors are referred to and discussed in the briefs. All of these have been examined, but we find no prejudicial error therein. The judgment of the district court will be affirmed. All the justices concurring.

(51 Kan. 496)

BLAND v. JACKSON, Councilman, et al, (Supreme Court of Kansas. June 10, 1893.) ELECTION OF CITY OFFICERS CONTEST BEFORE CITY COUNCIL-APPEAL FROM.

1. The mayor and council of a city of the first class may, by ordinance, provide for contesting the election of any person to any city office, but the rules or by-laws adopted must not conflict with the laws of the state.

2. A city council, when organized for the trial of a contested election over a city office, is a tribunal exercising judicial functions, and a petition in error will lie from its decisions to the district court.

3. It is the duty of a city council organized for the trial of a contested election case to settle and sign a correct bill of exceptions, so that its judgment may be reviewed; but its decision as to the truthfulness of a bill, like that of a trial judge, is conclusive and final. Of course, in settling a bill of exceptions the trial judge or tribunal hearing the case should act fairly and impartially, and state fully the truth in the bill signed.

(Syllabus by the Court.)

Original application by W. T. Bland for mandamus to Charles W. Jackson, councilman, and president of the council of the city of Atchison, and others. On motion to quash alternative writ. Motion denied.

The other facts fully appear in the following statement by HORTON, C. J.:

An election was held in the city of Atchison for city officers on Tuesday, the 4th day of April, 1893. W. T. Bland and Marshall J. Cloyes were the candidates for the office of mayor. On Friday, the 7th day of April, 1893, the mayor and councilmen of the city, sitting as a board of canvassers to canvass the returns of the election, declared W. T. Bland had been elected mayor, and directed that the certificate of election to such office be given to him. On the 8th of April, 1893, he took the oath of office, and attempted to assume the duties thereof. On Saturday, April 9, 1893, Marshall J. Cloyes, claiming that he was elected mayor, and desiring to contest the election of W. T. Bland, filed a statement in writing with the city council, alleging his grounds of contest. The council fixed the 17th of April, 1893, at 7:30 P. M., as the time and place for hearing such contest. At such hearing the council, by resolution, proceeded to recount the ballots cast in the city of Atchison for the office of mayor on April 4, 1893, against the objection of W. T. Bland, and after such recount announced that Marshall J. Cloyes had received 1,099 votes for mayor; that W. T. Bland had received 1,098 votes only, and thereupon declared that Marshall J. Cloyes,

the contestor, had duly been elected to the office. To the declaration of the result of the election, and to all of the proceedings of the council, W. T. Bland excepted. At the conclusion of the hearing of the contest, about 3 o'clock A. M. of April 18, 1893, W. T. Bland requested the city council to adjourn to 6 P. M. of that day, or to some other reasonable time, in which to reduce to writing his exceptions, and present the same to the council, sitting as a contest court or tribunal, for examination and allowance. That application was refused, upon the ground that the council had no authority to allow or sign bills of exceptions. On April 19, 1893, W. T. Bland filed and presented his motion for a new trial before the city council, which motion was overruled, and thereupon he presented his bill of exceptions in writing to the council, and asked that the same be examined and allowed as a true bill. This application was overruled, upon the ground that the action of the council was final and conclusive, and that no provision had been made by ordinance or statute for appeal or review. On April 21, 1893, W. T. Bland filed in this court his motion or application for writ of peremptory mandamus requiring the city council and the members thereof to allow and sign a true bill of exceptions. An alternative writ was issued by one of the justices of this court on the same day. Two of the members of the council, James W. Waggener and P. S. Mitchell, on May 2, 1893, filed answers admitting the allegations of the alternative writ of mandamus, and expressed their willingness to allow and sign the bill. The other members of the council, including the president thereof, and the city clerk of the city, filed their motion to quash the alternative writ upon the ground that the written application and the alternative writ did not state facts sufficient to constitute any cause of action against the defendants, or either of them, or show any cause for the issuance of either an alternative or peremptory writ. Hearing was had upon this motion at the May term, 1893, of this court.

B. F. Hudson and H. C. Solomon, for plaintiff. J. F. Tufts, for defendants.

HORTON, C. J., (after stating the facts.) The only question in this case for our determination is whether there is any power in the courts to revise the action of the mayor and council of a city of the first class sitting as a tribunal to try a contested election over a city office. If a petition in error will lie from the decision of such a tribunal, then it was the duty of the defendants to allow and sign a correct bill of exceptions. Section 540 of the Civil Code reads: "A judgment rendered or final order made by a justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be re

versed, vacated, or modified by the district court." A city council, when sitting to hear and determine a contested election case, is a tribunal exercising judicial functions. Its acts then are not ministerial, as when sitting to canvass the returns of an election. State v. Sheldon, 2 Kan. 322; Anthony v. Halderman, 7 Kan. 50; Buckland v. Goit, 23 Kan. 327. The contention, however, is that under the powers of the mayor and council of cities of the first class, granted by the legislature, an ordinance may be enacted making the decision of a city council in a contested election case final, and that, as an ordinance of the city of Atchison provides the determination of the city council in such a contest "shall be final and conclusive," there can be no appeal or review. We are referred to the following provisions of the statute concerning contest election cases in cities: Paragraph 555, Gen. St. 1889, reads: "The mayor and council shall have power to provide for the election of city officers, and prescribe the manner of conducting the same, and the returns thereof, and for deciding contested elections, in any manner not in conflict with the laws of the state." Paragraph 637, Id., reads: "The mayor and council may by ordinance provide for contesting the election of any person to any city office." Sess. Laws 1881, c. 37, § 11, subd. 35; Id. § 83. It is a cardinal rule of construction that all statutes in pari materia are to be read and construed together, as if they formed parts of the same statute, and were enacted at the same time. Wren v. Nemaha Co., 24 Kan. 305. Courts, as a rule, construe statutes so as to give every portion thereof some force and effect, some application and some operation. Points v. Jacobia, 12 Kan. 50; Republican River Bridge Co. v. Kansas Pac. Ry. Co., Id. 409. We must therefore harmonize, if possible, the provisions of the statute cited. We think they were not intended to conflict, or to have one section repeal the other. With this construction, there was no intention upon the part of the legislature in granting authority to the mayor and council to provide by ordinance for contesting the election of any person to any city office to prescribe any rules or by-laws "in conflict with the laws of the state." Under the law of the state, any judgment or final order made by any tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified by that court. That law was in force when the ordinances of the city of Atchison were adopted, and we must assume that the ordinance for deciding contest cases was passed with full knowledge of the laws of the state. The decision referred to in the ordinance of the city council is only final and conclusive when rendered in accordance with "the existing laws." It is subject to be reversed, vacated, or modified by the district court. Again, appeals are generally favored. Tribunals for contest election cases are pro

vided for all elected officers. Their decisions are reviewable except in the contests in the legislature over the members thereof. The action of the tribunal deciding contest elections for county officers may, by the statute. be revised. State v. Sheldon, supra. The tribunal deciding contest elections for township officers is subject to supervisory control. Buckland v. Goit, supra. We perceive no good reason, if the action of those tribunals may be reviewed, why the decision of a city council over the office of mayor shall be beyond the revision of the courts. Our conclusion is that, when a city council is organized for the trial of a contest election over a city office, it then becomes a tribunal exercising judicial functions, and is subject to the supervisory control of the courts. Of course this court cannot settle a bill of exceptions in a case tried before a city council. It is the duty of the council to settle and sign the same. We can command action, but we cannot say how the council shall act. Its decision, like that of a trial judge, as to the truthfulness of a bill, is conclusive and final. State v. Sheldon, supra. After a bill of exceptions is settled and signed by the city council, if the plaintiff shall file a petition in error in the district court to review the proceedings of the council sitting as a contest court or tribunal, this will not disturb or vacate the decision rendered, unless the district judge, in his discretion, stays or suspends the judgment. That judgment is conclusive until reversed or modified, if not stayed or suspended by the district court or the judge thereof. Until reversed, modified, or suspended, it settles the rights of the contesting parties. Section 558, Civil Code; Willard v. Ostrander, 50 Kan. 32 Pac. Rep. 1092. The motion to quash will be overruled. All the justices concurring.

(51 Kan. 684)

BELL et al. v. COFFIN.1 (Supreme Court of Kansas. June 10, 1893.) DISMISSING APPEAL-RECORD.

Where the only judgment of the court below, found in the record before the supreme court, is among papers purporting to be the evidence, affidavits, and journal entries attached to the case made, but not made a part thereof by reference, signature, or otherwise, the appeal will be dismissed.

Error from district court, Graham county; C. W. Smith, Judge.

Action between Lewis A. Bell and Malinda Bell and H. A. Coffin. From the judgment entered, the Bells brought error. Defendant in error now moves to dismiss the cause. Motion granted.

G. W. Jones, for plaintiffs in error. Z. O. Tritt, for defendant in error.

PER CURIAM. And now comes on the motion filed in this cause to dismiss the same for the reasons on file, and thereupon come

'For opinion on rehearing, see 33 Pac. Rep. 621.

Judgment, and defendant brings error. Affirmed.

Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. L. B. & S. E. Wheat, for defendants in error.

the defendant in error, by his attorney Z. C. Tritt, and the plaintiffs in error, by their attorney, G. W. Jones, and said motion is thereupon duly argued and submitted to the court. And it appearing to the court that, after signing and attestation of the case made, there are about 20 pages of what purports to be questions of fact, affidavits, and a journal entry containing the judgment of the district court, but which are not included or made a part of the case made by reference, signature, or otherwise, and it further appearing that except in the papers attached, as stated, there is no entry of judgment or other final order embraced in the case made, this court cannot review any of the alleged errors, and therefore the motion to dismiss will be sustained, upon the fifth ground alleged therein. Mullaney v. Humes, 47 Kan. 99, 27 Pac. Rep. 817. In the absence of a judgment against the plaintiffs in error, this court cannot say whether any of the alleged errors are material or immaterial. The judgment, or the substance thereof, should have been stated before the signature of the judge and the attestation on the case made, or the papers attached to the case made after such signature and attestation should have been referred to, and made a part of the case made, as exhibits, or in some other clear and conclusive manner.

(51 Kan. 432)

JOHNSTON, J. This action was brought by Cornelius W. and Bridget E. Curtan against the railway company to recover damages suffered by reason of the permanent obstruction of two alleys in the rear of a lot owned by them, by which the ingress and egress to and from the same were prevented and destroyed. The Curtan property which was damaged, being lot 3, is in block 116 of Leavenworth city, through which block the railway of the plaintiff in error was built in January, 1888. The lot is 44 feet wide and 140 feet deep, and is in the east part of the block, which abuts on Broadway on the east. Shawnee street lies on the south side of the block, and Seneca street bounds it on the north; and an alley, shown to be 16 feet wide, runs through the miuule of the block from Seneca street to Shawnee street, passing on the rear of lot 3. From this alley, and at the rear of lots 3 and 4, another alley extends westwardly through the block to Eighth street. The course of the railway built through the block was from the southeast towards the northwest, across both of the alleys mentioned, and, besides making a deep excavation, the company, in fencing its right of way, built a high stone wall across the alley running from Seneca street to Shawnee street, and also across the alley extending westwardly. Upon the top of this wall a high fence was built, and a depot of a permanent character, which extended across both alleys, was constructed by the company, making it absolutely impossible to pass south or west through the alleys from the rear of lot 3. No part of lot 3 was appropriated by the company, but the stone wall and fence were built from the southwest corner of the lot in a northwesterly direction across the alley, leaving only an angle of the alley at the rear of the lot. The location and obstructions mentioned may be seen from the following sketch or plat, which was used as evidence in the trial of the cause:

LEAVENWORTH, N. & S. RY. CO. v. CURTAN et al.

(Supreme Court of Kansas. May 6, 1893.) RAILROAD IN ALLEY- OBSTRUCTIONS-DAMAGESLICENSE FROM CITY.

1. An action was brought by a lot owner to recover damages from a railroad company for obstructing the alley at the rear of his lot, and preventing passage to and from the same. It was tried by the parties and court below upon the theory that the occupancy and obstruction were permanent and enduring. Held, that it will be so considered and treated in the supreme court.

2. It is not necessary that a portion of the lot should actually have been taken by the railroad company in order to entitle the owner to damages for the obstruction; but, if access to and egress from the property have been cut off by the construction of a railroad, the owner suffers a peculiar and special injury, for which he is entitled to compensation.

3. No license or consent from the city will exempt the company from liability to the owner for placing an obstruction across the alley which practically excludes access to the lot for the ordinary purposes for which an alley is used by

an owner.

4. Although the obstruction may not wholly prevent access to the property, if it is such as to practically preclude the ordinary and reasonable use of the alley as a means of entering and leaving the rear of the lot the company is liable for the injury suffered.

(Syllabus by the Court.)

Error from district court, Leavenworth county; Robert Crozier, Judge.

Action by Cornelius W. Curtan and another against the Leavenworth, Northern & Southern Railway Company. Plaintiffs had

It is alleged that the obstruction destroyed the approaches and means of access and egress to and from the rear of the lot, and deprived the owners of the benefits of the alleys in taking provisions, fuel, and other things onto the lot, whereby they were damaged in the sum of $2,000.

The railway company answered by a general denial, and, further, that it occupied the alleys with municipal consent. The trial resulted in a verdict in favor of Curtan for $1,000, and the railway company now insists that, as no part of the lot was actually taken, no damages can be recovered by reason of the obstruction; and, further, that if the alleys were occupied by it without authority, and their obstruction was a public nuisance, the owners have not by their pleadings or proof alleged or shown that which would entitle them to recover. The case appears to have been brought and tried throughout upor. the theory of a permanent occupancy and obstruction of the alleys by the railway company. The answer specifically alleges, as we have seen, the passage of an ordinance by the city authorizing the building of its road over both or the alleys, but no proof of the ordinance or the giving of municipal consent was offered. No question appears to have been raised as to the existence of such an ordinance, nor was any claim made during the trial that there was a lack of municipal consent. The plaintiff below, in asking damages and in proving the same, and also in the instructions requested, chose to consider the occupancy and obstruction as permanent or lasting, and damages were awarded upon that theory. In Railroad Co. v. Andrews, 26 Kan. 710, which was a similar action, it was said that "the plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots, as a quasi condemnation and permanent taking and appropriation of a certain interest in his property; and he can therefore recover merely for the consequent depreciation in value of his property by reason of such permanent injury, by reason of such permanent taking and appropriation, by reason of such quasi condemnation. He had the privilege to con sider the obstruction of the alley as only a temporary injury, and to have sued for any special or temporary damage which might have occurred at any time by reason of the obstruction. But it seems that he did not choose to so consider the obstruction. He chose to consider it as permanent; and, as he has chosen to consider it as permanent, and amounting to a permanent taking and appropriation of an interest in his property, he must be governed by the rules generally governing condemnation proceedings." Treat ing it in the light of a permanent appropriation, as the parties and court have done, have the landowners suffered a loss for which they can recover? It is not necessary that a portion of the lot should actually

have been taken by the company in order to entitle the owners to damages for the obstruction. In this state it is well settled that if the access to and egress from property have been cut off by the construction and operation of a railroad upon the streets or alleys, the owner suffers a peculiar and special injury, for which he is entitled to compensation. Railroad Co. v. Garside, 10 kan. 552; Railroad Co. v. Twine, 23 Kan. 585; Railroad Co. v. Andrews, 26 Kan. 702; Id., 30 Kan. 590, 2 Pac. Rep. 677. Numerous decisions have been made to the effect that for the construction of a railroad upon a street or alley with authority from the city, where it was restored to its former condition, or where the structure did not deprive the owner of the reasonable use of the street or alley as a means of ingress to and egress from his lots, no recovery could be had. The fact that the street or alley, may be narrowed by the structure, or made less convenient, or that by reason thereof the property would be less attractive or desirable, will create no liability against the company f the owner's special use and private right of entering and leaving his property have not been unreasonably abridged. Heller v. Railroad Co., 28 Kan. 625: Railroad Co. v. Larson, 40 Kan. 301, 19 Pac. Rep. 661; Railway Co. v. Cuykendall, 42 Kan. 234, 21 Pac. Rep. 1051; Railway Co. v. Smith, 45 Kan. 264, 25 Pac. Rep. 623. While adhering to the doctrine stated in these latter cases, we are of opinion that the lot owners in this case suffered an injury from the obstruction placed over the alleys, for which they are entitled to compensation. If we assume that the city undertook to authorize the occupancy of the alleys with the company's road, that fact would not prevent a recovery. No license or consent from the city would exempt the company from liability for placing an obstruction across the alleys which practically excluded access to the lot for the ordinary purposes for which alleys are used by a private owner. In Railway Co. v. Fox, 42 Kan. 494, 22 Pac. Rep. 583, it was said that "if the city had granted permission to lay the railroad in the street, and it had been constructed in a proper manner, so as not to impair the usefulness of the street for public travel, or to prevent access therefrom to the abutting lots, Fox would suffer no injury for which he could recover; but neither the authority nor the manner of construction can make any difference where the entire street is appropriated, and the lot owner is cut off from all access to the street from his property. He suffers an injury not shared by the public generally when he is denied the use and enjoyment of the adjoining street, and it is immaterial whether the proper and skillful construction of the road required the appropriation of the entire street or ret. The right of access from the street to his property is an indi

vidual one, as inviolable as the property itself, of which he cannot be deprived in any way without creating a liability against the wrongdoer for the damages occasioned." Although the obstruction in this case does not wholly prevent access to the property, it is built in such a way as to practically preclude the ordinary use of the alley as a means of entering and leaving the rear of the lot. A person can enter the alley from the east, and reach the rear of the lot; but a team and wagon cannot pass through to the west or north, as formerly, and the alley is so narrow that a team and wagon cannot be turned therein. When a person with a team and wagon loaded with material drives in, he meets an impassable barrier just at the rear of the lot, and to get out it is necessary to unhitch the team, and push the wagon out by hand, or pull it out from the rear. If the stable, coal house, or other storeroom is built on the northwest corner of the lot, as the owner may desire, it cannot be reached at all. The obstruction angles from the corner of the lot to the other side of the alley, leaving a point or wedge-shaped piece of ground at the rear of the lot, and hence a building on the west side, at the point of the angle, could not be reached for the unloading of hay, grain, coal, or wood by any reasonable means. It thus appears that the owners are deprived of the enjoyment of the appurtenant right which they have in the alley, and suffer a loss in kind and degree differing from the public generally. The company, having encroached upon this right and obstructed the reasonable and ordinary use and enjoyment of the alley as a means of access and egress to and from the lot, is liable for the injury suffered.

Some criticism is made upon the instructions given to the jury in respect to being shut off by the obstruction from passage to other streets, but, in view of the nature of the obstruction and the testimony offered, we see nothing substantial in the objections. One objection was that the court told the jury “that plaintiff's are entitled to a verdict on the facts as they exist. Plaintiffs are not required by law to widen the alley at their expense to reduce damages or for any purpose." It is contended that a party who claims to be damaged is obliged to reduce his damages as low as possible, and that upon certain testimony that was offered it was the duty of the owners to take off a portion of the rear of their lot, in order that wagons might be turned in the alley. The rule invoked has no application here. The owners are not required to devote the rear of their lot for a highway, nor were they under any obligations to construct one from Broadway, on the front, in order to reach the rear. They had an appurtenant right in the alley obstructed, and tne simple question to be tried was, what injury was sustained by the obstruction? The fact that the lot was accessible from a street at the other

end will not prevent a recovery for the injury resulting from the obstruction at the rear. Railway Co. v. Fox, 42 Kan. 496, 22 Pac. Rep. 583.

Complaint is made that witnesses were permitted to state their conclusions as to how much the obstruction depreciated the value of the lot. Both parties were careless in the examination of witnesses in this respect. They were frequently asked the value of the property, and, after stating the value, they were asked how much less it was worth by reason of the obstruction. These questions were asked and answered in most cases witnout objection, and afford no ground for reversal. Railroad Co. v. Fisher, 42 Kan. 675, 22 Pac. Rep. 713. The judgment of the district court will be affirmed. All the justices concurring.

(51 Kan. 599)

STATE ex rel. WILKINSON, County Treasurer, v. RALL.

(Supreme Court of Kansas. June 10, 1893.) MANDAMUS-DISMISSAL.

While relator in mandamus cannot, as a strict matter of right, dismiss the action after final submission, still the court will dismiss the proceeding when it is of importance and it is desirable that plaintiff's case be fully presented.

Original proceedings, in the name of the state, on the relation of Levi Wilkinson, county treasurer of Finney county, for mandamus to Eugene Rall. The attorney general now moves to dismiss the proceedings without prejudice. Motion granted.

John T. Little, Atty. Gen., and G. L. Miller, for the State. Milton Brown, for defendant.

PER CURIAM. This action was instituted to compel the defendant to pay over to the plaintiff, who is county treasurer of Finney county, the funds in defendant's hands as former treasurer of Garfield county, in accordance with the provisions of chapter 98 of the Laws of 1893. The case was submitted to the court at its last session on an agreed statement of facts by the county attorney of Finney county and the attorney for the defendant, and also signed by the attorney general. No brief has been furnished by counsel for plaintiff, nor was any oral argument made at the time the cause was submitted. The attorney general now asks leave to withdraw the submission, and dismiss the case without prejudice. This is objected to by counsel for defendant. While the plaintiff cannot, as a strict matter of right, dismiss his case after its final submission to the court, inasmuch as public interests are involved in this case, and a considerable sum of money,-about $10,000,-which had been collected by the defendant from the taxpayers of the territory called Garfield couuty, the court is not inclined to decide