Shelden v. Fox

• Decision Date: 09 April 1892
• Citation: 48 Kan. 356,29 P. 759
• Parties: ALVAH SHELDEN v. THE BOARD OF COMMISSIONERS OF BUTLER COUNTY et al
• Court: Kansas Supreme Court

29 P. 759

48 Kan. 356

ALVAH SHELDEN v. THE BOARD OF COMMISSIONERS OF BUTLER COUNTY et al

Supreme Court of Kansas

April 9, 1892

Original Proceeding in Mandamus.

THE case is fully stated in the opinion, filed April 9, 1892.

Aikman & Brooks, and Redden & Schumacher, for plaintiff.

Shinn & Knowles, and George Gardner, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On and prior to the 9th day of January, 1889, and at this time Alvah Shelden was and is the publisher of the Walnut Valley Times, a weekly newspaper printed and published in El Dorado, in Butler county, in this state, and having general circulation therein. On the 9th day of January, 1889, the board of county commissioners of Butler county -- then composed of J. K. Skinner, B. H. Fox, and A. O. Rathburn, the last named being the chairman of the board -- at a regular session, designated the Walnut Valley Times as the official paper of Butler county, and directed that the county printing for the next two years be given to that. paper, commencing on the 10th of January, 1891, and ending on the 1st of January, 1893. Subsequently, a written contract was entered into between the board and Alvah Shelden, the publisher of the Walnut Valley Times. At the time of the execution of the contract, Shelden made to the state of Kansas a bond in the sum of $ 500, conditioned for the faithful performance of his duties devolving upon him as county printer, which was approved and accepted by the board and filed with the county clerk. Shelden continued to do the county printing, under the terms of the contract, until the 26th of January, 1892, when the board of county commissioners -- then composed of B. H. Fox, John Ellis, and H. M. Brewer, the first named being the chairman -- designated by a majority vote the Industrial Advocate as the official newspaper of Butler county. On February 8, 1892, the order of the board was spread upon the journal by the county clerk. The publisher of the Industrial Advocate entered into a contract with the board for the county printing, and executed a bond which was approved by the board. Since the 8th day of February, 1892, the board of county commissioners has refused to recognize the Walnut Valley Times as the official paper of Butler county, and has directed the county clerk to notify Shelden, the publisher of the Walnut Valley Times, that the Industrial Advocate had been designated as the official paper of Butler county until the further order of the board. Shelden objected to this, and demanded that he be permitted to do all the county printing of Butler county. This has been refused. On the 15th day of February, 1892, Shelden commenced this proceeding in this court for a peremptory writ of mandamus to compel the board of county commissioners of Butler county, and the clerk thereof, to allow him, as the owner and publisher of the Walnut Valley Times, to do all the county printing, job work, etc., until January 1, 1893.

The principal question in the case is whether a board of county commissioners may designate an official newspaper of the county for a term of two or more years. On the part of the plaintiff it is alleged that this may be done, and on the part of the defendants this is denied. Paragraph 1655, Gen Stat. of 1889, provides that "the boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication of delinquent tax lists, treasurers' notices, or county printing." Under this section, the boards of county commissioners of the several counties have the legal right...