State ex rel. Bradford v. Board of Commissioners

[297] The opinion of the court was delivered by Horton, C. J.: Sherman county was organized September 20,1886, at which time Eustis was designated by the governor as the temporary county seat of the county. A special election was held on November 8,1886, for the permanent location of the county seat. Eustis received three hundred and seventy-six votes; Sherman Center, three hundred and fifteen votes; and Voltaire, two hundred and forty-one votes. The election therefore resulted in no choice, as none of the towns voted for received a majority of the votes cast. On October 3,1887, a petition was filed under §1, eh. 26, Comp. Laws of 1885, of the “Act concerning the location and removal of county seats ” for an election for the permanent location of the county seat of the county. On October 10, 1887, upon the petition presented, the board of county commissioners ordered an election to be held November 22, 1887. The election was held, and Goodland received eight hundred and seventy-two votes; Eustis, six hundred and eighty-two votes; and Voltaire, twelve votes. On the part of the plaintiff, it is alleged that this election was void. The defendants contend that the election was legally called and held; and, as Goodland received a majority of the votes cast, that it is the permanent county seat of the county. It is admitted that the petition presented to the board of county commissioners prior to the calling of the election, was legal and sufficient. It is also admitted that a legal registration was held in each of the voting precincts of the county, in accordance with the provisions of the statute, prior to November 22, 1887. The number of electors registering was one thousand six hundred and eighty-one. Of these, one thousand five hundred and sixty-six voted at the election. [298] 1. New counties, organization of; cumulative acts. [297] I. It is claimed, on the part of the plaintiff, that the provisions of ch. 26, Laws of 1885, concerning the location of county seats, have no application to Sherman county; and in order to locate the permanent county seat of that county, that proceedings must have been taken under ch. 24, Comp. Laws [298] of 1885, “relating to the organization of new counties;” and ch. 128, Session Laws of 1887, amending chapter 24. It is further claimed, on the part of the plaintiff, that on account of § 8, in said chapter 128, no election could be held in Sherman county for the location of the permanent county seat, without further legislation, as the second election must be held in not less than thirty nor more than forty days after the first election. Both of these claims are untenable. The general county-seat-location law is broad, and may include every organized county, no matter under what circumstances its county seat has been located, or what buildings have been erected. (Benton v. Nason, 26 Kas. 658.) If proceedings are commenced under that law, of course its provisions must be strictly followed out. The act relating to the organization of new counties, and chapter 128, Session Laws o£ £ggi^ amendatory thereof, are additional, or cumulative. Under § 8 of said chapter 128, it was the duty of the sheriff of Sherman county, after the passage of said act, to issue his proclamation for another election for the permanent location of the county seat, to be held in not less than thirty nor more than forty days after the issuance of his proclamation; and if the provisions of said chapter 128 had been pursued in the calling of the election of November 22,1887, the election could have taken place under that act, and the county seat located thereby. If the allegations in the petition for the injunction, “that R. G. Albright, the duly-qualified and acting sheriff of said county, issued his proclamation pretending to call another election for the location of the permanent county seat of said county, in pursuance of § 8 of chapter 128 of the Session Laws of 1887, which proclamation was first issued and published on October 23, 1887, giving notice that an election for the location of the permanent county seat of the county would be held on November 22, 1887,” were true, then the election was called in strict compliance with the provisions of chapter 128, Session Laws of 1887. It appears, however, from the agreed statement of facts, that he proclamation of the sheriff for the second election for the [299] permanent location of the county seat of the county was not proclaimed or published until October 28, 1887, less than thirty days prior to the election held on November 22. [300] 2. Notice; county-seat election, not set aside. [299] II. It is next claimed that no legal notice, as required by the general county-seat-location law, was given. That law provides that the county commissioners “shall cause thirty days’ notice of any such election to be given, by publication in one or more newspapers published in the county, or by posting printed or written notices at the several voting places in the county.” The order calling the election of November 22, 1887, was published in the Shaman County Dark Horse, on October 20 and 27, 1887, respectively. This notice was published as a part of the commissioners’ proceedings, but it was signed by John Bray, chairman, and attested by George W. Benson, county clerk. Therefore it was an official publication ; and although it was published with the commissioners’ proceedings, it does not appear to have been overlooked by the voters of the county, or to have misled them in any manner whatever. This was followed by the official publication in the Sherman County Republican, on October 28, and in each succeeding issue until November 22, of a further notice of the election, signed by John Bray, chairman, and attested by George W. Benson, county clerk. On October 23, 1887, the sheriff posted at the several voting precincts in the county, notices of the election, and also caused a copy thereof to be published in the Sherman County Republican on October 28, 1887, and in each succeeding issue thereof until November 22, which notice was officially signed by such sheriff. At the election on November 22, all of the persons registered voted, excepting one hundred and fifteen. Goodland received a majority over Eustis and Voltaire of one hundred and seventy-six. Therefore if all the registered persons not voting at the election had voted against Goodland, that town would have received about sixty majority. The notice of the county-seat election published in the Sherman County Dark Horse on October 20,1887, was more than thirty days prior to the election of November 22,1887; and the most that can be said against [300] the notice is that it was not as complete as it might have been, and that it was published with other official proceedings of the board of county commissioners. But as thirty days’ notice of the election was given officially by publication in a newspaper of the county, and as this was followed up by other official publications of the election in the newspapers of the county, and as there was an election in accordance with the order of the board of county commissioners and the notices given of such election, and as the people of the county voted, and as it is not shown that any portion of them failed in knowledge of the pendency of the question, and as Goodland received a majority not only of all the persons voting, but also of all persons registered, we do not think that the people of Sherman county are to be disfranchised, or are to be de- . _ „ . . ♦ , , . pnved ot their voice as to the location ot tne county seat of their county, because the notice published October 20,1887, was not more formal, or because it appeared as a part of the proceedings of the commissioners. A notice was given in time, and the electors of the county were in fact informed of the time, place and purpose of the election. No one was misled by the official proclamation published October 20, and the electors not only had actual notice of the election by the various official publications made, but they in fact took part in the election, and determined for themselves the permanent location of the county seat. Jones v. State, 1 Kas. 273, is not applicable, because in that case no proclamation or notice was issued by the commissioners. In deciding this case, however, we do not intend to go beyond the case before us as presented by its own peculiar facts. All that this court has heretofore said concerning the necessity of notices to be given of special elections, is fully affirmed. [301] 3. Location of election within time — injunction. [300] III. Finally, it is claimed that the election was not held within fifty days after the presentation of the petition. Gossard v. Vaught, 10 Kas. 162, is cited. In that case the petition was presented on February 16, 1872, and the election ordered and held on the 1st day of June — one hundred and six days thereafter. In this case the petition was presented [301] on October 3, 1887, and when the board of county commissioners was about to consider the same, it was restrained from calling the election by an order of the district court. Subsequently the restraining order was vacated, and on October 10, 1887, the election was ordered. October 10 to November 22 is less than fifty days. The county commissioners did not voluntarily defer any action, but their action was postponed through the restraining order of the district judge, and the time of the presentation of the petition was extended from October 3 to October 10; and therefore, within the statute, the election was held within fifty days after the presentation of the petition. The judgment of the district court will be affirmed. All the Justices concurring.