The second estimate is substantially the same in form as the first. It will be seen that nothing is said in these estimates about the character of the excavation or excavations, nor in what part or parts of the alleys the excavation or excavations were to be made. It will also be seen that nothing is said about the character of the paving, or what material or materials were to be used,-whether brick, stone, wood, concrete, asphalt, or something else, or whether partly one and partly another; and nothing is said about the thickness of the pavement,-whether two inches, two feet, or some other thickness. This does not constitute a compliance with said section 22 of the first-class city act, which requires that "before" any work is done or even contracted for, "a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council." The plaintiffs claim that a compliance with these provisions of section 22 is a condition precedent to the making of special improvements in cities of the first class, and that a failure to comply with such provisions will invalidate all proceedings having for their object the making of special improvements and the levying of special taxes; and we are inclined to agree with the plaintiffs in these particulars. Gilmore v. Hentig, 5 PAC. REP. 781; Welker v. Potter, 18 Iowa, 85, and the cases heretofore cited.

3. It also appears from the record that the oath taken by the appraisers who appraised the lots for taxation was not, in terms, just such an oath as is required by the statute. First-class City Act, § 13. The statute provides that the appraisers may appraise the property "after having taken and subscribed an oath to make a true and impartial appraisement;" and it does not provide that they may appraise the property at any time before taking and subscribing such an oath; while the only oath that was in fact taken by the appraisers was that they would "faithfully and impartially discharge their duties. as appraisers." The statute, as will be seen, does not give the form of the oath, but simply states what it should be; yet the plaintiffs claim that the exact oath provided for by the statute must be taken and subscribed, and that it is a condition precedent to the levying of the taxes; and cite as authority therefor the cases heretofore cited. See, especially, the case of Merritt v. Portchester, 71 N. Y. 309. It is hardly necessary for us to express our opinion with reference to the sufficiency of the oath that was in fact taken.

4. It also appears from the record that at no time prior to the completion of the work, or even afterwards, was there any money in the city treasury, or set apart or appropriated, for the payment of the work. Is this material? Will it invalidate the taxes? Section 22 of the first-class city act, as amended on March 7, 1883, provides, among other things, as follows:

"Before any such work or improvement, except building sidewalks, shall be commenced, the money to pay therefor must be set aside in the city treasuny by an appropriation ordinance, regularly passed and published; and it

shall be the duty of the city treasurer to take notice of such ordinance, and be governed thereby."

And the fortieth and forty-first subdivisions of section 11 of the first-class city act read as follows:

"Fortieth. To appropriate money and provide for the current expenses of the city: provided, that no indebtedness shall be incurred, or order or warrant or evidence of indebtedness of the city shall be drawn or issued on the treasurer, in payment of any indebtedness to exceed the amount of funds on hand in the treasury at the time: and provided further, that every order or warrant drawn on the treasury shall express on its face to whom issued, and for what purpose allowed, and the same shall be payable to such person or his order.

"Forty-first. All expenditures of moneys, and for any purpose whatever, shall be in pursuance of a specific appropriation made by ordinance, and in no other manner."

The work was all done after these statutes took effect, and while they were in force. The members of this court have been unable to agree with reference to what should be the true interpretation or construction of said section 22 with regard to this subject. Hence we shall pass the question for the present.

5. It is also claimed by the plaintiffs that the estimates were made for a stone pavement, while the material used was asphalt. But such does not seem to be the case from the findings of the court below. There is nothing in those findings that shows that the estimates were for stone pavements, or that the pavements were in fact constructed of asphalt. Both the findings and the estimates contained in the findings are entirely indefinite with respect to this matter. There was some evidence, however, introduced which tends to prove that this claim of the plaintiffs is true.. Now, if this claim of the plaintiffs is true, that is, if the estimates were in fact made for stone pavements, and if the materials used for the construction of the pavement were not stone, but were some other kind of material,-then we would think there was such a departure from the original plan of the work as would render the special taxes levied for the payment of the costs thereof illegal and void. Sloan v. Beebe, 24 Kan. 343.

case.

6. Of course, special taxes for local improvements must be levied with reference to the special benefits conferred upon the owners of the property taxed; but such seems to have been done in the present The taxes were levied, in accordance with section 13 of the first-class city act, upon the adjacent property in proportion to its value without the improvements thereon; and this, as a general rule of apportionment, we think is valid. Gilmore v. Hentig, 5 PAC. REP. 781; Downer v. Boston, 7 Cush. 277; Wright v. Boston, 9 Cush. 233; Brewer v. Springfield, 97 Mass. 152. Of course, there might be special instances where the taxes would not be legal or valid under such an apportionment; but the rule, we think, would be that the taxes would be valid if nothing else rendered them invalid.

7. It also appears from the record that the special taxes levied in

the present case were levied to pay for the grading of the alleys as well as for the paving of the same. Is this valid? Section 13 of the first-class city act provides, among other things, as follows:

"Sec. 13. For opening, widening, extending, and grading any street, lane, alley, or avenue, and for doing all excavating and grading necessary for the same, and for all improvements of the squares and areas formed by the crossings of streets, and for building culverts, bridges, viaducts, and all crossings of streets, alleys, and avenues, the cost or contract price thereof shall be paid out of the general improvement fund; and for all paving, macadamizing, curbing, and guttering of the streets and alleys, the assessment shall be made for the full cost thereof on each block separately, on all lots and pieces of ground to the center of the block," etc.

It will be seen from this section that the cost of all grading must be paid for out of the general improvement fund, and payment for such improvements cannot be made or provided for by the levying of special assessments or special taxes upon the property of the adjacent lot-owners. In the present case, we think that only the cost of the paving can be provided for by the levying of special taxes upon the adjacent property owners. Of course, where an alley has been sufficiently graded, or where it does not need to be graded, the small cost of simply preparing it for pavement might be included in the cost of the pavement as a mere incident thereto; but under the foregoing statute the full cost of what is generally known or understood to be grading cannot be included in the cost of the pavement. The two kinds of improvement must be provided for separately and paid for separately. The cost of the grading must be paid for out of the general improvement fund, while the cost of the pavement may be paid for from special taxes levied upon abutting lot-owners. This might, perhaps, be different except for the foregoing statute.

We think the special taxes levied in the present case are illegal and at least voidable, and that the plaintiffs are entitled to the injunction prayed for. The judgment of the court below will therefore be reversed, and cause remanded for further proceedings. (All the justices concurring.)

(33 Kan. 202)

CLARK V. COMMISSIONERS OF MONTGOMERY Co.

Filed March 7, 1885.

1. ELECTIONS-INTENT OF ELECTOR-BALLOT.

The intention of an elector is to be ascertained from the language of his ballot, read in the light of the circumstances of a public nature surrounding the election at which it is cast; and though his will is not expressed with precision, yet, if it is fairly apparent, and can be determined beyond a reasonable doubt, it should be made effectual.

2. SAME-VOTING FOR COURT-HOUSE BONDS.

At a general election in M. county, an order was made by the board of county commissioners submitting to the electors of that county a proposition to vote bonds, and prescribing that those voting in favor of the proposition should have written or printed on their ballots the words "for the bonds," and those voting against the proposition should have written or printed on their ballots the words "against the bonds." On some of the ballots cast there were first

the names of candidates for national, state, and county offices, and at the bottom thereof there were printed the words "for the bonds." A pencil mark had been drawn through these words, and immediately underneath was written in pencil the word "against." Held, under the facts in the case, that the will of the electors in casting these ballots is fairly apparent, and that they should b counted as votes against the proposition.

Error from Montgomery county.

Kirkpatrick & Vestal, for plaintiff in error.

J. D. McCue and Dunkin & Chandler, for defendants in error. JOHNSTON, J. At an election held on November 4, 1884, the electors of Montgomery county voted upon a proposition to issue $50,000 in the bonds of that county, to be used in the building of a courthouse and jail. When the vote was canvassed the board of canvassers found that there had been 2,683 votes cast in favor of the proposition and 2,652 against it, and accordingly declared that the proposition had been adopted. E. B. Clark, who is an elector of that county, for the purpose of contesting that election, instituted this proceeding, and upon his verified petition and affidavits applied to the judge of the district court for a temporary injunction restraining the board of county commissioners from issuing the bonds declared by them to have been voted. The application was refused, and the plaintiff assigns the refusal as error.

The controversy in this case arises over 76 ballots cast in two election precincts, which the plaintiff claims should have been counted against the proposition, but which the election boards refused to count because of their informality. It will be noticed that the vote was taken upon the day of the general election. The ballots rejected by the election board had printed thereon and at the bottom of the ballot, and underneath the names of the candidates for national, state, and county offices, the words "for the bonds." A pencil line had been drawn through these words, and immediately beneath the words so marked was written in pencil the word "against." The order of the board of county commissioners, submitting the question to the electors of the county, provided that all those voting in favor of the proposition should have written or printed on their ballots the words "for the bonds," and those voting against the proposition should have written or printed on their ballots the words "against the bonds." If the rejected ballots had been counted as negative votes the proposition was defeated by a majority of 45 votes.

On the hearing before the district judge it was agreed that the only question to be decided was whether the ballots which were cast as above stated should be counted against the proposition, and this is the question submitted to us. The leading consideration, and the one on which the decision of the case must turn, is, what was the will of the electors casting these ballots? In determining the intention of voters, election boards as well as courts should be guided by the language of the ballots cast, interpreted in the light of the circumstances surrounding the election. If the terms used by the voter upon

his ballot are so vague and uncertain as not to disclose his purpose, it should be rejected; but, on the other hand, if the terms employed by him on his ballot, though not technically accurate, are such as to make known his will beyond a reasonable doubt, effect must be given to it. State v. Metzger, 26 Kan. 395, and cases cited; McCrary, Elect. c. 7.

It is conceded by counsel not to be imperative that an elector, in voting upon the proposition to vote bonds, should use the exact language prescribed in the order submitting the proposition, and that any words of similar import, and which will show with a reasonable degree of certainty the intention of the voter, will be sufficient. The act of the elector in drawing a pencil mark through the printed words which would make it an affirmative vote, clearly shows that his intention was specially called to the proposition, and that he had under advisement the question of whether he should favor or oppose it. It also shows beyond question that he did not desire that his vote should be recorded in favor of the bonds. After he had thus expressed his purpose not to favor the bonds, and while he had the subject under consideration, he writes, presumably at the same time, with the same pencil, and immediately underneath the canceled words, the word "against." The word used was the controlling one in the form prescribed by the order of the board of county commissioners to express opposition to the voting of the bonds, and in its ordinary signification means opposition. Opposition to what? Obviously it did not refer to the candidates whose names appeared on the upper part of the ticket,-in that connection it would be meaningless. The action of the voter in writing the word "against" was not only directly associated with his act in penciling the words relating to the bond proposition, but it was directly and closely connected with them upon the ticket.

In view of these considerations we cannot escape the conviction that the ballots were intended as negative votes upon the proposition. Common observation shows that this is the method usually adopted by voters in scratching a printed ticket. When a voter finds upon a ticket presented to him the name of a candidate to whom he is opposed, it is usual to cancel such name by a pencil-mark, and write immediately under or near to the name canceled the name of the candidate for whom he desires to vote. Here the words to be used in expressing the elector's concurrence or dissent to the proposition were "for" and "against," and we think there can be no reasonable doubt that it was the intention of the voter to only scratch and cancel that which would make it an affirmative vote, and, adopting the usual method in scratching a ticket, he wrote in close proximity, and in connection therewith, the word "against," and thereby, it seems to us, expressed his dissent to the subject in his mind, namely, the voting of the bonds.

We acknowledge the force of the defendant's argument, and recognize that this is a "border" case; but, under the facts in the record, we