pel the railroad company to compromise and settle such right of way appeal cases, and with the expectation and belief that this case would be compromised and settled by the railroad company, and dismissed by the plaintiff upon said settlement of said right of way cases." In respect to the petition upon which the election was called, the court found that on October 12, 1886, the entire number of resident tax-payers of Chase county, Kan., was 1,425, and that the petition praying for an election, to which 827 names were attached, contained only 567 legal petitioners or resident tax-payers, which was just three less than the number necessary to have signed it in order to constitute two-fifths of the number of electors as found by the court. Motions were made by the railroad company for judgment on the findings, and also for a new trial, both of which were overruled and excepted to. The railroad company brings the case here, and insists, among other things, that it was not properly brought into the case, and made a party in the action; that no cause of action was set forth in the petition against the company; and hence its objection to the introduction of any testimony and its demurrer to the evidence were erroneously overruled. officers * * * from executing, issuing, It is clear from the nature of the proceeding and the language employed by the statute that the elector cannot contest any other question, or proceed against any other persons, than those named in the statute. The right of the elector to enter and carry on the contest is both created and limited by this statute, and by it he is limited to the mere question of contesting the election, and to accomplish this can only proceed against the officers of the county, township, or municipal corporation upon whom the duty of executing and delivering the bonds voted at the election is devolved. It has always been held that when an elector invokes the remedy thus specially given he must bring himself strictly within the provisions of the statute conferring the same, and must follow the procedure which the special statute prescribes. State v. Smith, 31 Kan. 129, 1 Pac. Rep. 251; Clark v. Commissioners, 34 Kan. 632, 9 Pac. Rep. 756; State v. Commissioners, 36 Kan. 180, 12 Pac. Rep. 942. In the case last cited it is said that, "under this act, an injunction can be allowed only after the election, after the canvass, and only after the result has been declared; and in such elections as the one in this case it can be allowed only to restrain the officers from subscribing for stock, or from executing, issuing, or delivering bonds, or from loaning the credit of their county, township, or municipal corporation." The railroad company had no duty to perform in holding the election, and derived no authority from the result of the election. It was held for the purpose of empowering the county commissioners of the county to act for the people in the making of a contract of subscription between them and the railroad company. Even an affirmative vote creates no contractual right between the railroad company and the county. Such right arises only when the subscription is made by the proper officers in pursuance of a favorable vote. Railroad Co. v. Commissioners, 38 Kan. 597, 16 Pac. Rep. 828. But, as the statute gives the elector no The question first presented and argued here is whether in this special proceeding the plaintiff can bring in any defendants other than those named in the statute under which the action was brought, or have any question tried and determined except the contest of the election. The action brought by Evans can only be maintained under chapter 79 of the Laws of 1871. According to the allegations of his petition, he has no interest in the subject-matter of the action different from other citizens and electors of the county, and has no right to sue or appear in behalf of the public, except as he is specially authorized by the statute mentioned. That statute provides a special method for contesting county-seat elections, and all elections other than those held for choosing public officers, and permits an elector to institute a contest, giving him a right which did not previously exist to interfere in public matters, and in which he has no special interest. The act provides in terms that elections may be con-authority to proceed against any person other tested at the instance of the elector, the style of the action, the parties thereto, and the procedure governing the same. In section 1 of the act it is provided that such an election may be contested by the elector "in the district court of the proper county, as hereinafter provided." The fifth section provides how such an election as the one we are considering may be contested. Omitting the portions not applicable to this action, it reads as follows: "Whenever, after any election, * * * the board of canvassers shall declare * * ** any question or proposition voted upon at such election to have been adopted, any elector * aggrieved thereby may commence an action * to enjoin and restrain the proper officer or * * * than the officers of the municipality, there is little room to contend that the railroad company or any outside persons can be brought into court and made parties to the contest, and thus be required to litigate with this elector questions not contemplated by the statute. In this case the proposition was voted on, was declared to have been carried, the subscription of stock was ordered to be made, and was made, received, and accepted. After a contract was thus entered into between the county and the railroad company, the company built the road in accordance with the contract, and complied with every condition of the proposition. After all this *had been done, and with knowledge of every step, the elector, Evans, instituted this pro 5. A block is a portion of a city inclosed by streets or avenues, and where such block or square is subdivided by alleys or lanes it still remains one block, and the parts thereof, though surrounded by public ways, are not made blocks thereby, but remain subdivisions of the block enclosed by streets or avenues. (Syllabus by Holt, C.) F. G. Hentig, for plaintiffs in error. W. A. S. Bird, for defendants in error. ceeding, which is designed alone to contest | it subject to taxation, for such improvements; it an election, for purposes other than to con- is sufficient if it lies in that half of the block next to the street paved and curbed. test, and sought to bring in outside parties, and to inquire into and cancel a contract already made between the county and the railroad company. This cannot be done; at least, not in this special proceeding. Deriving his rights solely under a statute, he is strictly confined within its limitations, and must leave all other matters to be inquired Commissioners' decision. Error to disinto at the instance of the proper public of-trict court, Shawnee county; JOHN GUTHRIE, ficer, who has full authority, and who may Judge. in a suitable action bring in the necessary parties, and have such matters inquired into. There is no controversy here between the elector and the county commissioners, nor HOLT, C. The plaintiffs filed their petiwas there an issue formed between them in tion in the district court of Shawnee county, the district court, as the commissioners an- praying that the defendants be enjoined from swered, admitting the truth of the allegations taking steps looking to the collection of a contained in the plaintiff's petition; and this special assessment, or threatened assessment, ended the contest between the parties who on their property near Sixth avenue in the were properly before the court. As the rail- city of Topeka, for the improvements being road company was not a proper party, and is made thereon. The petition states that the alone in bringing the case to this court, we plaintiffs are the owners of certain lots, decannot in this proceeding inquire into the scribing them, in the city of Topeka, on Toquestion of whether the elector was estopped peka avenue, Van Buren, Tyler, Polk, and from maintaining the action by reason of Taylor streets; averring, further, that the city delay or bad faith in instituting the same, or of Topeka had entered into a contract to because the rights of third parties were in-grade, curb, and pave Sixth avenue from the volved before the action was begun, nor any west line of Jackson street to the western of the other questions so fully presented by the briefs of counsel. The judgment of the district court against the Chicago, Kansas & Western Railroad Company will be reversed, and the cause remanded, with directions to dismiss it from the action, and enter judgment in its favor for costs. All the justices concurring. boundaries of the city; that it made such contract without authority; and also that the lots above named do not abut upon Sixth avenue, and are not benefited by the grading, curbing, and paving of said avenue, and that the several lots named are not liable for the costs of such improvement. They also further allege that the city council directed a special assessment and levy to be made; that the city clerk had threatened and was about OLSON et al. v. CITY OF TOPEKA et al. to certify said special assessment to the coun(Supreme Court of Kansas. Feb. 9, 1889.) ty clerk of Shawnee county, to be placed on INJUNCTION-EVIDENCE-PAVING ESTIMATES-As- the tax-rolls of said county, etc. A tempoSESSMENTS-PROPERTY SUBJECT-MUNICIPAL SUB-rary restraining order was issued by the pro (42 Kan. 709) DIVISIONS. 1. On the hearing to dissolve a temporary in junction, on a motion which was silent concerning the nature of the evidence to be offered at the hearing, the admission of oral evidence was not error, after both parties had announced themselves ready for trial. 2. It is the duty of the city engineer of a city of the first class to make, under oath, a detailed estimate of the cost of paving and curbing the street proposed to be improved. Such estimate is sufficient if it states the surface to be paved, the kind of pavement, the cost per yard, and the aggregate cost of the same, the number of lineal feet of curb ing, its character, and the cost per foot and the aggregate cost. ing of a certain street is to be stone and asphalt, If the estimate states that the pay its character is sufficiently described. 3. In assessing the cost of paving and curbing a street under the provisions of section 4, c. 99, Laws 1887, such cost of improvement must be assessed for the full amount thereof upon all the lots and pieces of ground to the center of the block on either side of said street, the distance to be improved, according to the assessed value of each lot and piece of ground; and such block on either side of such improved street, the distance of a block, becomes a block or taxing district as contemplated by said section. Blair v. City of Atchison, 40 Kan. - 19 Pac. Rep. 815. 4 It is not necessary that a lot should abut upon the street to be paved and curbed in order to make bate court of Shawnee county on August 30, 1888. On the 6th day of September a motion was made to dissolve such order, giving as a reason therefor that the allegations in plaintiffs' petition were untrue, except as specially admitted in defendants' answer. This motion was heard upon the 7th, upon oral testimony, and the injunction dissolved. The plaintiffs are here as plaintiffs in error. The plaintiffs complain-First, that the court allowed oral testimony to be introduced at the hearing of the motion; second, that estimate of the cost of grading, curbing, and the city engineer had made no special detailed paving this avenue or street; third, that the court erred in holding that the lots in question were liable for improvements upon a street upon which they did not abut. Concerning the first objection, it appears that both parties met and announced themselves ready for trial, and, although the plaintiffs objected to the introduction of oral testimony, they did not ask for a continuance; and oral evidence was offered both by plaintiffs and defendants on the hearing of the motion. It is doubtful whether this objec-|dition, the kind and nature of paving are set tion is fairly raised by the record. In any forth. The reasons given in those cases why event, after the plaintiffs themselves offered the estimates were not sufficient have been oral testimony without any application for a complied with in this instance. We believe continuance, or any showing that they were the estimates were sufficient, under section prejudiced in any way by the ruling of the 22, c. 18, Comp. Laws 1885. court, we are of the opinion that whatever ground the plaintiffs may have had for error in this proceeding was waived. It is not in their mouth to claim now, under the circumstances, that the court erred in proceeding with the trial after they had announced themselves ready. The second objection is that there have been no detailed estimates of the grading, curbing, and paving of this avenue. There had been estimates submitted by the city engineer, stating the number of yards to be graded and the cost per yard, number of yards to be paved and cost per yard, number of lineal feet of curbing and the cost per lineal foot, and of the engineering and other expenses. The only concern these plaintiffs could have in the estimates made by the city engineer is in the paving and curbing of the avenue in question. The engineering and grading were to be paid out of the general improvement fund by the city, and we therefore shall only examine the estimates made for paving and curbing. Part of the avenue was to be paved with stone and asphalt, and the estimate of the city engineer on that part to be thus paved was 2,633 square yards, at a cost of $2.85 per square yard; curbing, 600 lineal feet, at 85 cents per lineal foot. The number of yards is given, and price per yard, and the aggregate cost of paving. The number of lineal feet of curbing is given, and price per foot, and aggregate amount. We would suppose this was sufficiently detailed and definite, but the plaintiffs say that it was specified it should be of stone and asphalt, which is an uncertain, if not an improbable, description of the paving of the street. We cannot agree with them in that contention. The ordinary paving called "asphalt" is the overlaying of a mixture of asphalt, lime, and sand upon a body of rock or stone, and we do not believe that any one could have been misled by the statement that it was stone and asphalt. Part of the estimates provided that the paving should be of red cedar wood, and the number of square yards, giving cost per square yard, and aggregate amounts, and also the curbing, as above set forth. The further and last objection we shall notice is that these lots do not abut upon the street to be paved and curbed, and therefore are not liable for the expense of paving and curbing. It is not necessary that they abut upon the streets to be improved. City of Ottawa v. Barney, 10 Kan. 270. The statute has provided in what way streets shall be improved, and what property is liable for the improvement. Section 4, c. 99, Sess. Laws 1887, provides: "For all paving, curbing, and guttering of the streets and alleys assessment shall be made for the full cost thereof on each block separately, and all lots or pieces of ground to the center of the block on either side of each street or avenue, the distance to be improved." This provision has been construed in Blair v. City of Atchison, 40 Kan. 19 Pac. Rep. 815. It appears in evidence that these lots, while they are within that half of the square next to the street to be improved, are separated from that portion of the lots nearest the street by an alley running through the square, but not through the center thereof, and the lots in question, although they were on the other side of the alley from the street improved, were in that half of the square next to it. This brings them within the rule enunciated in Blair v. City of Atchison, supra. To break its force, the plaintiffs contend that a block is any compact body of land in a city surrounded by any public ways, whether they be streets, avenues, lanes, or alleys, and that the part of the city inclosed by streets should be denominated a square, as distinguished from a block. They further say this construction could be readily applied in Topeka, especially for the reason that the squares have not been numbered here as blocks, as they have been in most of the other cities of the state. The statute provides that words shall be construed according to the approved usages of the language, except technical words, and those that have acquired a peculiar meaning, which shall be construed according to their peculiar meaning. Section 1, c. 104, Comp. Laws 1885. We have no hesitation in saying that the orThe plaintiffs cite us to Gilmore v. Hen- dinary signification of a block in a city is tig, 33 Kan. 175, 5 Pac. Rep. 781, and Hen- understood to be a part of the city inclosed tig v. Gilmore, 33 Kan. 234, 6 Pac. Rep. 304. by streets. It is certain that a block has no In those cases the estimates were held to be such technical and peculiar meaning in Kaninsuflicient. They were not made under sas as contended for by plaintiffs; on the oath, as provided by law, and, although they contrary, its ordinary signification has been gave the number of feet, and price per foot, approved and emphasized in this court in the of paving, they failed in any way to intimate case of City of Ottawa v. Barney, supra. what the pavement should consist of, Judge BREWER, in rendering the opinion of whether wood, stone, stone and asphalt, the court, says: A block is defined by Webplank, brick, or concrete; and it was there ster as a square, or portion of a city inclosed held an insufficient estimate under the law. by streets, whether occupied by buildings or But in this instance the estimate is under composed of vacant lots.' It is a portion of oath, the area and cost are given, and, in ad-ground surrounded by streets." We are well satisfied with the definition, and, taking it as our guide in this decision, it follows as a matter of course that the word "square, used by plaintiffs, is synonomous with "block," and therefore these lots in question, lying on that part of the block nearer this avenue than to the street on the opposite side thereof, are subject to taxation for these improvements, without any reference whatever to where the alley runs through the block or square. The judgment of the court in dissolving the restraining order was correct, and we recommend that it be affirmed. An alternative writ was allowed in this case on the 25th day of February, 1888, commanding the defendants to issue, in payment for a like amount of the capital stock of the Southern Kansas & Panhandle Railroad Company, 121 bonds, of $1.000 each, and one bond of the amount of $300, of the county of Clark, payable to bearer, 30 years after date, and bearing interest at the rate of 6 per cent. per annum, with proper coupons thereon, and requiring the defendants to deliver the same to the Southern Kansas & Panhandle Railroad Company, and, failing so to do, requiring them to show cause for their refusal on or before the 16th day of March, 1888. PER CURIAM. It is so ordered; all the The return, which was filed on the 15th day justices concurring. (41 Kan. 72) of March, 1888, set up the election notice, and the proceedings thereunder, and also the subscription of the capital stock of the railroad company. The petition for the election SOUTHERN KAN. & P R. Co. v ToWNER was as follows: et al. (Supreme Court of Kansas. March 9, 1889.) RAILROAD COMPANIES-AID FROM COUNTY. 1. Railroad Co. v. Davis, 34 Kan. 209, 8 Pac. Rep. 530, and Railroad Co. v. Commissioners, 36 Kan 121, 12 Pac. Rep. 593, followed. 2. Railway Co. v. Thompson, 24 Kan. 170, distinguished. 3. The evidence in this case considered, and the plaintiff held to be a legally organized corporation under the laws of the state, and the railroad built in the county of Clark to Ashland and Englewood, in 1887 and 1888, to have been constructed by it. 4. Bonds were voted by Clark county to the plaintiff, a railroad company, in payment of its subscription to its capital stock, upon the condition, among others, that the railroad company should receive the bonds when its road was "built of standard gauge, and completed as first class, and in operation by lease or otherwise." Held that, to entitle the plaintiff to receive the bonds of the county, its road, if c. nstructed according to the terms of the contract, need not have been perfect in every respect at the prescribed date for its completion, but it should have been completed and in operation at that date in such a manner that it might be properly and regularly used for the purpose of transporting freight and passengers. "To the Honorable Board of County Commissioners of Clark County, Kan.: We, the undersigned, your petitioners, being resident tax-payers and legal voters of the said county and state, respectfully petition your honorable body to submit to the qualified electors of Clark county, Kan., for their acceptance or rejection at a special election to be ordered by your honorable body under and in pursuance of the laws of the state of Kansas, and an act entitled An act. to enable counties, townships, and cities to aid in the construction of railroads, and to repeal section 8 of chapter 39 of the Laws of 1874,' which took effect February 25, 1876, and an amendment thereto, the following proposition, with the terms and conditions herein specified, to-wit: Shall the county of Clark, in the state of Kansas, subscribe for fourteen hundred (1,400) shares, of one hundred dollars each, of the capital Stock of the Southern Kansas & Panhandle Railroad Company, one hundred and forty (140) bonds of said county, of the enumeration of one thousand (1,000) dollars each, said bonds to be payable to bearer at the fiscal agency of the state of Kansas, in New York city, thirty years after the date thereof, bearing interest at the rate of six per cent. per annum, payable annually, for which in6. The proposition was submitted to the quali-terest coupons shall be attached, payable at fied electors of Clark county to subscribe for stock the fiscal agency aforesaid? This subscripin the railroad of plaintiff, and issue the bonds of the county in payment therefor, upon the condition of stock and issue of bonds to be upon tion, among others, that the railroad should be the following conditions, namely: As soon as completed and in operation in the county, by lease said proposition shall be determined in the or otherwise, from a connection with existing affirmative by a canvass of the votes cast at lines of road in the state, having direct and continuous lines of connection to the Missouri river, said election, the board of-county commisand also conditioned that the acceptance of the sioners of said county of Clark, for and in bonds issued in payment of the stock should be behalf of said county, shall order the county held and taken as a covenant binding upon the railroad company, its lessees or assigns, to main- clerk to make, and the county clerk shall tain and operate said line of road, by lease or oth- make, said subscription in the name of said erwise, over its route for the term of 99 years. Clark county for said fourteen hundred Held, that an agreement by the railroad company, shares of capital stock of said railroad comexecuted after the subscription of the county, to sell and transfer its road after it was completed, pany; and when the railroad of said railroad in order to obtain money for its construction, did company shall be built of standard gauge, not discharge or release the county from the pay- and completed as a first-class road, and in opment of its subscription. eration by lease or otherwise, from a con(Syllabus by the Court.) nection with existing lines of road in the state of Kansas, having direct and continu 5. Upon the evidence introduced in this case, held, that the plaintiff, a railroad company, in the construction and operation of its road in Clark county, had substantia y complied with the terms and conditions of the proposition submitted to the qualified electors of the county for the subscription of stock and the issue of bonds to its company. Original proceeding in mandamus. "C. B. NUNEMACHER, Chairman. "Attest: J. S. MYERS, County Clerk." In compliance with the above order, the county clerk of Clark county made and delivered to George W. Findley, one of the directors of the Southern Kansas & Panhandle Railroad Company, the subscription, of which the following is a copy: ous lines of connection to the Missouri river | at pages 60-1-2-3; and whereas, the board to the city of Ashland, in said Clark county, of county commissioners of said county have the Southern Kansas & Panhandle Railroad duly canvassed the votes cast at said election, Company shall receive fifty thousand ($50,- and have determined that there were eight 000) dollars of said bonds, and issue five hun-hundred and eighteen votes cast in favor of dred (500) shares of stock therefor; and when said proposition, and five hundred and ten completed, and in operation to the town of votes cast against said proposition,―said Englewood, or to the west line of said coun- board of county commissioners now, therety, said railroad company shall receive an ad- fore, determine that said proposition was ditional ninety thousand ($90,000) dollars of duly carried, and do now here order, for and said bonds, and issue therefor nine hundred on behalf of said Clark county, the county shares of its stock: provided, not more than clerk of said county to make said subscripfour thousand dollars per mile of said bonds tion in the name and for the use of said shall be issued for each mile of road so con- county of Clark, for fourteen hundred shares structed in said county. The said board of of the capital stock of said Southern Kansas county commissioners shall cause such bonds, & Panhandle Railroad Company. with interest coupons attached as aforesaid, "Dated at Ashland, this 24th day of Septo be issued in the name of said county of tember, 1886. Clark, and shall deliver the same to said railroad company on delivery or tender to the treasurer of said county by said railroad company of certificates for its shares of fully paid-up capital stock of said railroad company, equal in amount with said bonds, dollar for dollar: provided, said railroad shall be built and completed and in operation, by lease or otherwise, as aforesaid, with freight and passenger depots or stations established ready for business, within three-fourths of one mile of the center of the city of Ashland, in said county of Clark, on or before the 31st day of December, 1887, and to the west line of said county, or to the city of Englewood, on or before the 1st day of September, 1888. The acceptance of said bonds legally voted and tendered to said railroad company under this proposition shall be held and taken as a covenant binding upon said railroad company, its lessees or assigns, to maintain and operate said line of railroad, by lease or otherwise, over the route aforesaid, for the term of ninety-nine years from the 1st of September, 1888. The form of ballot to be used at said election shall be: For the subscription of stock and issue of bonds to the Southern Kansas & Panhandle Railroad Company,' and 'Against the subscription of stock and issue of bonds to the Southern Kansas & Panhandle Railroad Company.' The canvass of the returns of the election of the 21st day of September, 1886, was in words and figures following: "Whereas, there was on the 21st day of September, A. D. 1886, duly submitted to a vote of the qualified electors of the county of Clark, Kan., at a special election held for that purpose, a proposition to subscribe for fourteen hundred shares of one hundred dollars each of the capital stock of the Southern Kansas & Panhandle Railroad Company, and in payment therefor to issue to said company one hundred and forty bonds of said county of Clark of the denomination of one thousand dollars each, upon certain terms and conditions which shall more fully appear by reference to the order of submission made on the 17th day of August, 1886, by the board of county commissioners of said county, and recorded in Commissioners' Journal No. 1, "Whereas, on the 21st day of September, 1886, at an election held for that purpose, a certain proposition was submitted to the legal voters of the county of Clark, state of Kansas, as to whether said Clark county should subscribe the sum of one hundred and forty thousand dollars to the capital stock of the Southern Kansas & Panhandle Railroad Company, and issue in payment therefor bonds of said Clark county in the sum of one hundred and forty thousand ($140,000) dollars in accordance with the terms of said proposition; and whereas, at a meeting of the board of commissioners of the county of Clark, upon the 24th day of September, 1886, for the purpose of canvassing the returns of said election, it was ascertained and declared by said board that said proposition had been legally carried, and said board thereupon, for and in behalf of said Clark county, ordered the county clerk of said county to make said subscription, and which order is entered in Commissioners' Journal No. 1, at page 65 of the proceedings of said board: Now, therefore, in consideration of the above-recited premises, I, J. S. Myers, county clerk of the county of Clark, in and for the state of Kansas, do hereby, in the name of said Clark county, subscribe for fourteen hundred shares of the capital stock of the Southern Kansas & Panhandle Railroad Company, of the par value of one hundred dollars per share, the same to be paid for in the bonds of said Clark county, which shall be issued to said railroad company in accordance with the terms and conditions of said proposition above referred to. "Dated this 24th day of September, A. D. 1886. [Seal.] "J. S. MYERS, County Clerk of Clark County, State of Kansas." The return of the defendants to the alternative writ denied, under oath, that the |