Baugh v. Rural High School Dist. No. 5, Linn County

• Citation: 340 P.2d 891,185 Kan. 123
• Decision Date: 13 June 1959
• Docket Number: 41469,Nos. 41453,s. 41453
• Parties: Owen BAUGH et al., Appellees, v. RURAL HIGH SCHOOL DISTRICT NO. 5, LINN COUNTY, Kansas, et al., Appellants. Owen BAUGH et al., Appellees, v. COMMON SCHOOL DISTRICT NO. 78, LINN COUNTY, Kansas, et al., Appellants.
• Court: United States State Supreme Court of Kansas

Page 891

340 P.2d 891

185 Kan. 123

Owen BAUGH et al., Appellees, v. RURAL HIGH SCHOOL DISTRICT NO. 5, LINN COUNTY, Kansas, et

al., Appellants.

Owen BAUGH et al., Appellees, v. COMMON SCHOOL DISTRICT NO. 78, LINN COUNTY, Kansas, et al.,

Appellants.

Nos. 41453, 41469.

Supreme Court of Kansas.

June 13, 1959.

Syllabus by the Court

1. Under G.S.1957 Supp. 72-2018, which requires notice of a school bond election to be published in a newspaper of general circulation in the district once each week for three consecutive weeks, the first publication to be not less than twenty-one days prior to such election, it is held in construing the statute that the printed date of the newspaper is generally to be regarded as the date of publication even though the newspaper was actually printed on the preceding day and some copies were distributed to the public on the day it was printed.

2. The provisions of the foregoing statute requiring the first publication to be not less than twenty-one days prior to such election are construed and held to mean that twenty-one clear days must intervene between the date of first publication in the newspaper and the date of the bond election. In computing the time both the first day of publication and the day of the election are to be excluded. The statutory rule of computation prescribed in G.S.1949, 60-3819 and 3819a, which directs the exclusion of the first day and the inclusion of the last in computing the time within which an action is to be done, does not apply.

3. The statutory provisions for notice of a special election are mandatory rather than directory, and failure to comply with such mandatory provisions renders the election void.

Glenn Jones, Parsons, argued the cause and was on the brief for appellants.

M. K. Hoag, Pleasanton, argued the cause and was on the brief for appellees.

SCHROEDER, Justice.

These injunction actions were instituted by a group of taxpayers against the appellant school districts and their board members to challenge the validity of proceedings to issue school bonds, on the grounds that notice of the bond elections were published for an insufficient period of time. The trial court rendered judgment for the appellees, permanently enjoining the issuance, registration and sale of the bonds.

Appeals have been duly perfected to this court by the school districts from all adverse rulings.

The sole and controlling question presented is whether the notice given of the bond elections was sufficient to comply with the statutory requirements. The foregoing question is treated in two phases: (1) What is the publication date of a newspaper regarding legal notices? and (2) Does G.S.1957 Supp. 72-2018, require twenty-one clear days notice?

Common School District No. 78 and Rural High School District No. 5 are located in Linn County, Kansas, and cover practically the same territory. The city of Pleasanton, Kansas, is a city of the third class and is included within the boundaries of both districts.

Pursuant to G.S.1957 Supp. 72-2017 and 2018, the respective school districts called an election upon the question whether bonds should be issued for the purpose of providing funds to acquire a site and construct and equip a school building. The election was held on May 22, 1958, and the bonds carried in both districts. After the election and before the bonds were issued and registered, the appellees filed the present actions to enjoin the issuance, registration and sale of the bonds on the grounds that the elections were void because of insufficient notice and because of certain irregularities in the conduct of the elections. The allegations in the petition in case No. 41,453 and the petition in case No. 41,469 are identical except as to the parties defendant, the amount of the proposed bond issues, and the number of yes and no votes in the respective districts. The evidence adduced at the trial applies equally to both cases. In all material respects the cases are identical concerning the issues, and the parties have stipulated that the decision of the court in one case shall control the decision in the other case.

Paragraph 8(a) of the petitions alleges: 'The said proposed election was null and void and contrary to G.S.1957 Supp. 72-2018 in that Twenty One (21) days did not elapse from the time of the first publication of said notice of election on May 1, 1958, until the election was held on May 22, 1958, * * *' Other subsections of paragraph 8 deal with alleged irregularities in the conduct of the election.

The defendants in their answer bring in new matter and allege that notwithstanding the May 1, 1958, date line of the paper in which said bond election notice first appeared, said newspaper was in truth and in fact printed, published and circulated on April 30, 1958, and twenty-one clear days did elapse prior to said election.

The trial court found the allegations in regard to the irregularities in conducting the election to be true, but not sufficient to vitiate the election for the reason that there was no evidence that a sufficient number of votes was influenced thereby to change the result of the election. (This question is not before us on appeal.) The trial court further found that the first publication of notice was had on May 1, 1958, and the election was held on May 22, 1958; that twenty-one clear days did not elapse from the time of the first publication until the time of the election; that the notice did not comply with the statute and the election held on May 22, 1958, was void.

There is little if any conflict in the evidence. The notices given of the bond election to be held on May 22, 1958, were published in the Pleasanton, Kansas, Observer-Enterprise, which is a weekly newspaper published and circulated in the two school districts involved. This paper is qualified to publish legal publications. The notices were published for three consecutive weeks, the first publication being made in the paper which carried a date line of May 1, 1958. This edition of the paper was printed sometime between 3:30 and 5:00 o'clock p. m., Wednesday, April 30, predated May 1, 1958. After the papers were printed they were taken to the Pleasanton post office for mailing to the subscribers. With the exception of approximately twenty-five papers sold from a rack in front of the newspaper office on April 30, the entire circulation is had through the U. S. mail. Some of the Pleasanton city subscribers called at the post office Wednesday evening, April 30, and received their paper. General circulation was had on Thursday, May 1, and no subscriber, other than those calling at the post office Wednesday evening, could have received his paper prior to May 1.

Pleasanton city covers an area of about one square mile and each of the school districts is more than eighty square miles in area.

Total circulation of the Pleasanton Observer-Enterprise is about 1,200; approximately 300 in the city of Pleasanton and approximately 125 on each of the four rural routes out of Pleasanton. The balance of the circulation is made up of bundles to nearby towns and single mailings to various more distant points.

Papers for the rural route subscribers are placed on the carriers' desks for delivery the following morning, which in this case would be May 1.

Papers for subscribers with a nearby town address are tied in bundles; each bundle being properly identified with the name of the town written on the outside. There were bundles for Mound City, Boicourt, Prescott and La Cygne. The number of these subscribers who lived within the school districts involved is not disclosed by the evidence. These bundles are placed in a sack labeled to the particular town they are to go and are taken to the train. The bundles are not opened by the local postal employees and it would have been impossible for these subscribers to receive their paper until May 1. The bundle for Boicourt frequently did not arrive at the Boicourt post office until Friday of each week. Boicourt subscribers live within the districts involved.

The Pleasanton, Kansas, Observer-Enterprise has carried a Thursday date line for many years and has published legal notices for a long time. The legal publications have always carried a Thursday date line and the proof of publication has always had a date line of Thursday.

The bond election notices in question here as published were annotated: '(First published in the Pleasanton, Kansas, Observer Enterprise, May 1, 1958.)' In proof of publication the publisher's affidavit states that such notices were first published on May 1, 1958.

We shall first consider whether the notice of the bond elections which appeared in the Pleasanton, Kansas, Observer-Enterprise was first published on April 30 or on May 1. While it is true that city subscribers in Pleasanton could have received their paper Wednesday evening, April 30, and some did by calling at the post office, the general circulation, taking into account the rural routes out of Pleasanton and the nearby towns, was not achieved until Thursday, May 1. It is not challenged that the newspaper bore a publication date of May 1 and that proof of service of publication disclosed that the publication was first made on May 1.

G.S.1957 Supp. 72-2018, reads in part:

'* * * Notice of the election shall be published in a newspaper of general circulation in the district once each week for three consecutive weeks, * * *' (Emphasis added.)

The Supreme Court of Indiana in Board of Com'rs of Decatur County v. Greensburg Times, 215 Ind. 471, 19 N.E.2d 459, 20 N.E.2d 647, said:

'* * * General circulation as applied to a newspaper depends largely upon the diversity, rather than on mere number of subscribers * * *' 215 Ind. at page 476, 19 N.E.2d at page 461.

The purpose of a legal publication is to give notice. Here the notice was available on April 30 to a fraction of the public in an area of about one square mile but not available or circulated to the public...