street, or alley in any incorporated town in such county, setting forth in such petition the beginning, course, and termination of such road or highway, street or alley, proposed to be located and opened for public use, established, changed, or vacated, together with the names of the owner or owners of the land through which the same will pass, said petition may be presented to the county clerk of said county, and the clerk shall lay said petition before the board of county commissioners at their next meeting after the reception of said petition, and thereupon said board of commissioners shall, within 30 days thereafter, proceed to locate, open to public use, establish, change, or vacate such road, highway, street, or alley. Before opening any new road, street, or alley, or changing same, through private property, such property shall be condemned for public use, as follows: * * *"" It is alleged in the petition filed in this court that plaintiff will sustain great damage and injury by the opening of said road, and that, unless restrained, defendants intend to and will proceed to locate, establish, and open said road, through plaintiff's said land, until the same is completed, to plaintiff's irreparable damage, and that, for several reasons stated, the board exceeded its jurisdiction in making the order before recited. It is well settled that a board of county commissioners is a body possessing but limited and special powers; that, when its 'power or authority to do any particular thing is questioned, the record must show affirmatively all the facts necessary to give it authority to perform the act complained of, and that, when this is not the case, the presumption is against its jurisdiction. Swift v. Commissioners of Ormsby Co., 6 Nev. 97; State v. Board of Commissioners, 12 Nev. 19; Curran v. Shattuck, 24 Cal. 435; Finch v. Tehama Co., 29 Cal. 454. It is just as well established, also, that “the exercise of the right of eminent domain, whether directly by the state or its authorized grantee, is necessarily in derogation of private rights; and the rule is that the authority is to be strictly construed. * * * What is not granted is not to be exercised." Lance's Appeal, 55 Pa. St. 26. Stanford v. Worn, 27 Cal. 172, was an action to condemn lands for state prison purposes, under a statute passed to that end. The court said: "In order to render proceedings of this. character effectual for any purpose, the provisions of the statute by which they are authorized must be strictly followed. The power must be exercised precisely as directed, and there can be no departure from the mode prescribed without vitiating the entire proceedings. When certain steps are authorized by statute in derogation of the common law, by which the title of one is to be divested and transferred to another, every requisite having the semblance of benefit to the former must be strictly complied with." Atkins v. Kinnan, 20 Wend. 241. "The right to appropriate private property to public uses lies dormant in the state, until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appropriation. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which the fact is determined, must be held to be, for this purpose, the law of the land,' and no further finding or adjudication can be essential, unless the constitution of the state has expressly required it. When, however, action is had for this purpose, there must be kept in view that general, as well as reasonable and just, rule, that whenever, in pursuance of law, the property of an individual is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law which are made for his protection and benefit, or the proceedings will be ineffectual. Those provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance." Cooley, Const. Lim. 657. And see Nichols v. Bridgeport, 23 Conn. 208; Kroop v. Forman, 31 Mich. 144; Sharp v. Speir, 4 Hill, 86; Bensley v. Water Co., 13 Cal. 315; Dalton v. Water Commissioners, 49 Cal. 222; Mitchell v. Railroad & C. Co., 68 Ill. 286; Sharp v. Johnson, 4 Hill, 92. * The last case shows that the twenty-fourth section of the act incorporating the village of Williamsburgh provided as follows: "The trustees of said village shall or may, on an application in writing of a majority of the persons owning the property described in any such application, and who are intended to be benefited thereby, or whose property shall be assessed for the payment of the expenses attending the same, and upon such application they are hereby fully authorized and empowered to, widen and alter all public roads, streets, and highways already laid out in said village." The court said: "Let us see what authority the trustees had to proceed. They had a paper signed by fourteen persons, in which they suggest the propriety of having the street opened.' * * Although the petitioners say that they are inhabitants in and about North Third street,' they do not suggest that they own a single foot of land in the street, or elsewhere; nor is any land described' in the application, as the statute requires. There are only fourteen petitioners, while there are forty-four different assessments. The burden lay on the defendant of showing that the application came from a majority of the persons owning the property,' and he has not only failed to show it, but the evidence is nearly or quite conclusive that a majority did net apply. The trustees, therefore, had no authority whatever to open the street, and the plaintiff's land in the site of the street has not been taken according to law. She owns it still." * * * We quote also from the court's opinion in the case of In re Grove St., 61 Cal. 444. The case shows that the second and third sections of the act "to provide for the opening of streets in the city of Oakland" provided that proceedings should be commenced by petition of five or more residents and freeholders within said city, addressed to the city council; the petition to contain, among other things, "a statement that, in the opinion of the petitioners, the public interests require that the improvement asked for (describing it generally) should be made." But the statement of the residents and freeholders to the city council was that, "in the opinion of the petitioners, the improvement asked for should be made." Said the court: "It may be said it is enough if the freeholders express a desire that the street be opened, or other improvements made. This must be all required by the statute, since it must be presumed the legislature has not attempted to give the powerpower which it could not give to five or more residents and freeholders of deciding whether the public interests require a municipal improvement; in other words, its necessity or expediency. But the statute does not purport to confer such power upon the petitioners. The fourth section of the act provides that, at the regular meeting next after the meeting at which the petition of freeholders is presented, the council may, by resolution, determine the lands to be benefited,' etc. Thus the ultimate power of determining the necessity and expediency of the work is placed in the city council. The power, however, like every other power of the council, is derived from the charter or statute, and can be employed only in the manner and with the limitations prescribed in the statute. The statute authorizes the city council to proceed with the acts looking to the opening of the street only after a certain petition shall be filed with the clerk. It was for the legislature to prescribe, and the legislature has prescribed, what the petition shall contain. Until a petition is presented containing substantially all that the law declares shall be inserted in a petition to initiate the proceeding, the council has no power or jurisdiction to act with reference to the opening of a street. A statement in the petition that, in the opinion of the petitioners, an improvement should be made,' is not in substance the same as a statement that, in the opinion of petitioners, the public interests require the improvement should be made.' In the case before us it was the duty of the board, and consequently within its jurisdiction, in 30 days after March 2, 1886, (its first meeting after the petition was filed having been held on that day,) to proceed with the acts looking to the opening of the 1oad in question, as the statute required; provided, the petition contained-First, a majority of the resident tax-payers of Willow Point road-district, according to the last previous assessment roll; and, second, the beginning, course, and termination of the said road; and, third, the names of the owners of the land through which the same would pass. The statute does not require, in terms, the first fact to be stated in the petition, but it does the second and third. If we admit that the first fact may have been determined by the board, upon evidence presented, although not shown by the petition, (Hetzel v. Board of Commissioners of Eureka Co., 8 Nev. 309) yet it must appear affirmatively, from the records of the board, that the board found as a fact that "a majority of the resident tax-payers of Willow Point road-district, according to the last previous assessment roll," had signed the petition. What the board did find is that "said petition was signed by a majority of the resident tax-payers of said Willow Point road-district. It was not found that a majority of the resident tax-payers of the road-district, according to the last previous assessment roll, had signed it. The board found that a majority of the then resident tax-payers of the road-district had signed the petition, while the statute required à majority according to the last previous assessment roll. Eleven persons signed the petition before it was filed, and four after filing. The most that can be claimed is that the board found that, at the time of the hearing, 15 constituted a majority of the resident tax-payers of the road-district; that at that time there were not more than 29 in all. But these findings do not show that no more than 29 resident tax-payers of the road-district appeared upon the last previous assessment roll. That may have shown more than 29, and hence more than 15 may have been required to constitute the requisite number under the statute. The legislature had the right to require the majority to be estimated from the number appearing on the last previous assessment roll, and it did so. It could have required a petition, signed by every resident tax-payer, or by a aumber less than a majority. In the present case the board had no power to locate the road in question without finding as a fact, from competent evidence, that a number of resident tax-payers of the road-district, exceeding one-half the number appearing upon the last previous assessment roll, had signed the petition. This was a jurisdictional fact, without which the board had not power to make the order complained of. Again, under the statute, it was just as necessary to insert in the petition the names of the owners of the land through which the road would pass as it was to set forth therein the beginning, course, and termination of the road. The statute declares that all these facts shall be stated in the petition; and, aside from the fact that their insertion is a statutory requirement, they ought to be in the petition for the protection of land owners, and the guidance of road viewers. It is unnecessary to consider other questions raised by counsel for plaintiff. The order of the board of county commissioners of Humboldt county, dated May 5, 1886, granting the petition of Edward Lyng and others, to locate, establish, and open the road therein described, and to run in part through the lands of Louisa Godchaux hereinbefore mentioned, is declared and adjudged to be null and void, and plaintiff will have judgment for her costs. (36 Kan. 725) In re Petition of SECREST and others. 1. CRIMINAL PRACTICE-PRELIMINARY HEARING-WAIVER-EFFECT. Where a defendant charged with murder in the first degree waives a preliminary examination for such offense, he not only waives his right to be let to bail, but also to have the facts of the alleged offense examined into on habeas corpus; but, where said waiver is made under fear of personal violence, he will not be estopped by reason of such waiver. 2. BAIL-MURDER. A person charged with murder in the first degree is entitled to be let to bail where the proof is not evident, nor the presumption great. (Syllabus by Clogston, C.) Original proceedings in habeas corpus. The facts are these: That the petitioners are in the custody of the sheriffs of Ford and Finney counties under a warrant of commitment issued by a justice of the peace of Wichita county, upon the complaint charging them with murder in the first degree. The defendants appeared before the justice of the peace, and waived preliminary examination. Bail was refused by the court, and the defendants now petition for a writ of habeas corpus, asking that the charge against them be examined into, and that they be discharged or let to bail. J. W. Ady, for petitioners. Waters & Chase, for respondents. CLOGSTON, C. The respondent insists that because the petitioners have once waived a preliminary examination for the offense of murder in the first degree, that they are not now entitled to have the charges against them investigated, or be let to bail. We will first consider this question. A defendant who is charged with murder in the first degree, and who has waived a preliminary examination for such offense, not only waives his right to be let to bail, but also to have the facts and circumstances of the alleged offense examined into on a writ of habeas corpus. But to this rule there are exceptions. Where, at the time of such waiver of examination, there is good ground to believe that, if an examination is gone into, personal violence will be used against defendants, and under such apprehension an examination is waived, they will not be estopped by reason of such waiver. To be estopped, they must have waived their right to an examination from a free choice, after a fair opportunity to have had an impartial examination. No mere imaginary danger would be enough to justify it, but a well-grounded belief, founded upon such information or observation as would be calculated to excite fear of bodily harm in the mind of a reasonable person under like circumstances. After a careful examination of the vast amount of testimony in this case, we are of the opinion that the defendants waived their preliminary examination from fear of personal violence. It must be remembered that, at the time of their arrest, great excitement prevailed in that county, and great animosity and bad feeling existed between Leoti and Coronado, two rival towns situated within three miles of each other. This feud and animosity had grown up over a county-seat contest and quarrel; and, after defendants were arrested, they were taken from Coronado to Leoti, and confined in the second story of a frame building. Large bodies of armed men were in the town, and many threats of violence were made by the friends of the men who had been killed. Under the fear of further bloodshed, the adjutant general went from Topeka to that county to prevent, if possible, additional trouble; and he, together with other citizens, counseled and advised the defendants to waive their examination. Under these circumstances, we can readily see how they might waive their examination, and without losing their right afterwards to have the charges against them investigated; and in doing so they are not estopped from this inquiry. The second question to be considered is, are the defendants entitled to be discharged or let to bail? The constitution and as well the statutes of this state provide that, where persons are charged with an offense punishable by death, they shall not be admitted to bail where the proof is evident or the presumption great. The evidence in this case is voluminous and conflicting on many questions. On one question, however, there is no dispute. Three persons were killed, and some others wounded, and under such circumstances as to constitute murder, if unexplained; and, as far as defendants are concerned, no explanation has been given. But, in view of the fact that the question of guilt or innocence of the petitioners must be submitted to a jury for their determination, we express no opinion in the case further than to say that, on the evidence submitted to us, the petitioners must be held for trial, and under all the circumstances, as we now understand them, (necessarily submitted in an unsatisfactory way,) they are entitled to be let to bail. It is therefore recommended that petitioners be remanded into the custody of the officers having them in charge, and that they be let to bail, and be required to give bonds for their appearance at the next term of the district court of Wichita county in the sum of $3,000. BY THE COURT. It is so ordered; all the justices concurring. (36 Kan. 407) HART PIONEER NURSERY Co. v. SCRUGGS. (Supreme Court of Kansas. June 11, 1887.) ERROR-TO JUSTICE COURT-PRACTICE. A ruling of the justice of the peace on the trial, in admitting testimony or excluding the same, against and over the objections of a party thereto, cannot be reviewed by the district court on petition in error. (Syllabus by Clogston, C.) Error from McPherson county. This action was originally brought in justice court, and taken on petition in error to the district court, and at the April term, 1885, the judgment of the justice was affirmed. Defendant now brings the record to this court for review. The facts are stated in the opinion. Frank G. White, for plaintiff in error. Lucien Earle, for defendant in error. CLOGSTON, C. Scruggs brought an action against the Hart Pioneer Nursery Company, to recover for services claimed to have been rendered by him as salesman for the defendant. At the trial before the justice he obtained a judgment for the amount claimed, being $79.45, and costs. The cause was taken to the district court on error. Judgment of the justice affirmed by the district court, and now brought to this court for review. Plaintiff complains of the ruling of the justice on the trial in admitting in evidence certain parts of a deposition, and a letter written by the plaintiff in error, over the objections of the plaintiff, for the reason that the same was incompetent, and, upon examination of the evidence admitted and objected to in the deposition, we are of the opinion that the same was incompetent and improperly admitted. But, if this be correct, can it avail the plaintiff? Defendant in error insists that the plaintiff had no remedy by petition in error. This we think correct, and it has so been held by this court in Rice v. Harvey, 19 Kan. 144, and cases therein cited. Again, this court has since that case repeatedly held that the erroneous admission or exclusion of evidence cannot be reviewed by petition in error. See Thompson v. Brooks, 29 Kan. 504, and Theilen v. Hann, 27 Kan. 778. Therefore, within these authorities, it is imv.14p.no.3-10 |