Township of Center v. Gilmore

The opinion of the court was delivered by Horton, C. J.: This was an action brought by John S. Gilmore, the proprietor and publisher of the Wilson County Citizen, against the township of Center, in Wilson county, to recover the sum of $89.50, with interest, for publishing a notice of a special election held May 30, 1882, in the town [676] ship, upon a proposition for the township to subscribe to the capital stock of a railroad company proposing to construct a railroad through the township. To the petition, the plaintiff in error, defendant below, interposed a general demurrer, which was. overruled by the court, and j udgment rendered for the claimant. The ruling upon the demurrer is complained of. The question is, whether the township of Center is liable to pay for publishing the notice of the special election ? The election was ordered by the board of county commissioners of Wilson county, under §§1-5, ch. 107, Laws of 1876. (§§68-72, ch. 84, Comp. Laws of 1879.) Section 3 of said chapter prescribes among other things that— “The commissioners . . . for such township . . upon the presentation of the foregoing' petition, and such other conditions as may be deemed advisable by the authority ordering such election to the chairman of the board . . . shall convene and make an order, which order shall embrace the terms and conditions set forth in the petition, and shall fix the time for holding said election, which shall be within sixty days from the day on which the commissioners . shall be convened.” Section 4 reads: “Thirty days’ notice of such election shall be given in some newspaper published or having a general circulation in such . . . township, .■ . . and the election shall be held and the returns made and the results ascertained in the same manner as provided by law for general elections.” Section 8 of said chapter further prescribes: “Before any railroad company shall be entitled to receive any bonds issued in pursuance of the foregoing provisions for the stock of such company, said company shall deliver to the treasurer of such . . . township stock in its said road equal in amount with the bonds authorized to be issued, dollar for dollar.” These provisions make it apparent that the board of county commissioners in calling the special election of 30th of May, 1882, acted simply as the agent of the township of Center. As the board of county commissioners has the authority to [677] order the election, and as such order must fix the time for holding the election, and also embrace the terms and conditions set forth in the petition presented to the board, it is fairly inferable that the commissioners, as the agents of the township, may cause the notice of the election to be published. Therefore, we think that the township is liable for the publication of the notice of the election. The voting or not voting of the bonds in Center township affects the tax-payers of that township, but not the tax-payers of the other townships of Wilson county. It seems but just, therefore, that the township interested should be liable for the expense of the publication of the notice of the election. There are some expressions in the opinion of Thacher v. Comm’rs of Jefferson Co., 13 Kas. 182, somewhat conflicting with these views. It does not follow, however, that because the county of Jefferson was liable under the facts in that particular case, that the township of Center is not liable in this. The decision in Thacher v. Comm’rs, supra, was made in 1874. The statute referred to in that decision is ch. 90, Laws of 1870. The election in this case was ordered under §107, Laws of 1876. Our conclusion is, that the township should pay for publishing the notice of the election, and also pay the expense of issuing the bonds voted by the tax-payers of the township at such election. The judgment of the district court must therefore be affirmed.