Eggleston v. State Ex Rel. Lewis

• Decision Date: 05 November 1887
• Citation: 15 P. 608,37 Kan. 426
• Parties: A. J. EGGLESTON, et al., v. THE STATE OF KANSAS, on the relation of D. C. Lewis, County Attorney
• Court: Kansas Supreme Court

15 P. 608

37 Kan. 426

A. J. EGGLESTON, et al., v. THE STATE OF KANSAS, on the relation of D. C. Lewis, County Attorney

Supreme Court of Kansas

November 5, 1887

Error from Pratt District Court.

THIS is the second time this case has been in this court. (34 Kan 714.) When here before, the order setting aside the temporary injunction was reversed, and the cause remanded for further proceedings in accordance with the views then expressed. At the December Term, 1886, of the district court of Pratt county the cause came on for final hearing, and the temporary injunction was made perpetual, enjoining the county commissioners of Pratt county from canvassing the vote polled on October 1, 1885, upon the proposition for the relocation of the county seat of that county. The facts are substantially the same as when the case was here before. The defendants bring the case here.

Judgment affirmed.

Huston & Parrish, and M. P. Simpson, for plaintiffs in error.

S. B Bradford, attorney general, E. A. Austin, and Gillett &amp Whitelaw, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

At the trial the parties entered into the following stipulation:

"It is hereby stipulated and agreed by and between the parties hereto, that if the names of the 332 persons which appear on 'Exhibits CC and DD,' (to wit, 278 on 'Exhibit CC' and 54 on 'Exhibit DD,') annexed to and made a part of the plaintiff's second amended petition, or amendment to plaintiff's original petition, and which names, it is agreed, appeared on the petition calling an election to relocate the county seat from Iuka to Pratt, in said county, and which names also appear on the petition in evidence, praying a relocation of the county seat from Iuka to the city of Saratoga, in said county, are retained and counted on the petition praying for a relocation of said county seat from the town of Iuka to the said city of Pratt, then the said Pratt petition did and does contain three-fifths of the legal electors of Pratt county, as appeared, and now appear, on the assessment rolls of the several township and city assessors of said county at the last assessment before said petition was presented to the board of county commissioners in the year 1885, and was and is a legal petition. But if said 332 names mentioned in said exhibits, which are on said petitions, are stricken off of said Pratt petition, and not counted thereon by reason of the following clause, which appears in said Saratoga petition, to wit, 'We further petition your honorable board to erase and strike off our names from any and all petitions coming before your board other than this one petition praying a removal of said county seat to any place, hereby revoking any and all petitions on this subject heretofore signed by us,' then the petition praying for a relocation of the county seat from the town of Iuka to the city of Pratt did not, and does not, without said names, contain three-fifths of the legal electors, as appears on the several assessment rolls of the several township and city assessors of said county, next before the presentation of said petition to said board of county commissioners, in the year 1885, and was not and is not a legal petition."

This stipulation eliminates all questions of fact, except one: Did the Pratt petition contain the requisite number of names to authorize the county commissioners to order the election? Plaintiff below gave in evidence the Saratoga petition which, when compared with the Pratt petition, showed that 332 petitioners had signed their names on both petitions. The Saratoga petition was dated August 19th, and the Pratt petition was filed with the board on or before August 13th. In the absence of other proof, a petition will be presumed to have been signed at or after its date. This establishes the fact that the Saratoga petition was signed last; therefore the request therein contained was the last expression of the petitioners to the county commissioners. The defendants, to destroy the effect of the request contained in the petition, to have their names taken off from all other petitions relating to the removal of the county seat, attempted to show that the Saratoga petition was not presented to the board of commissioners, and that at the time of calling the election they did not know that that petition, presented to the board, contained that request. This claim, if true, would have been a complete answer, but at the trial it was claimed by the plaintiff that the Saratoga petition was presented to the board while in session as a board of canvassers, by Mr. Whitelaw, representing the Saratoga petition, and that he read the petition to the board and urged it to take action thereon. This was established by some four witnesses, and, on the part of the defendants, denied by the board of county commissioners, county clerk, and several...