Stafford County Com'rs v. State Ex Rel. Higgins

• Decision Date: 07 July 1888
• Citation: 40 Kan. 21,18 P. 889
• Parties: THE BOARD OF COMMISSIONERS OF STAFFORD COUNTY et al. v. THE STATE OF KANSAS, on the relation of C. H. Higgins, County Attorney
• Court: Kansas Supreme Court

18 P. 889

40 Kan. 21

THE BOARD OF COMMISSIONERS OF STAFFORD COUNTY et al. v. THE STATE OF KANSAS, on the relation of C. H. Higgins, County Attorney

Supreme Court of Kansas

July 7, 1888

Error from Stafford District Court.

ACTION brought in the Stafford district court, to enjoin the defendant board of county commissioners from considering a certain petition filed with the county clerk praying for an election for the removal and relocation of the county seat of Stafford county. A temporary injunction was granted by the district judge. A motion to dissolve said injunction was duly filed on the part of the board of commissioners, and afterward the parties entered into a written stipulation which, omitting the first and second items, which have reference solely to the trial in the district court, is as follows:

"Third. Is it necessary, under the law and facts, that a petition should contain two-thirds of the electors of Stafford county whose names appear on the last assessment-roll, or three-fifths of them only?

"If the court decides that it requires a two-thirds petition final judgment of the court shall be for the plaintiff for costs, and the injunction hereinbefore granted shall be made perpetual. If the court shall decide under the law and facts that only a three-fifths petition is necessary, the injunction may be dissolved, and a mandatory order may issue to the defendant board of county commissioners of Stafford county, commanding and directing them to proceed with the consideration of the petition, requiring the board in determining the total number of electors in the county to count every name of elector appearing on the real-assessment rolls of 1886, and the additional real-estate rolls of 1887 the personal-property assessment-rolls of 1886, and they must also consider the personal-property statements of 1887; and this the board shall do by a personal examination of such rolls and statements; and when the board decides to consider such statements and rolls, such board shall give both sides a fair opportunity to be heard. The board shall be required to consider the remonstrances filed, and shall deduct from the petition the name of each elector thereon who had signed the petition, unless such elector shall signify his desire be to counted as a petitioner; that is, the last expression of the elector, made before final action of the board, shall be taken and considered by said board.

"Fourth. The following are the facts upon which this case shall be tried and decided, to wit:

"1. The town of St. John was made the temporary county seat of Stafford county upon its organization in 1879, and in April 1883, was made permanent county seat by a vote and election held for that purpose. No election has been held in Stafford county since that time for the removal or relocation at such county seat. The town of St. John became a city of the third class in 1885.

"2. Certain citizens of the city of St. John, for the purpose of providing a court house and county offices for Stafford county, built upon certain lots situated in the city of St John a brick house two stories high, containing rooms suitable for the various officers of Stafford county, and containing a court room, at an expense to such citizens of over thirteen thousand dollars; and the cost of the lots upon which the same is situate is not over thirteen hundred dollars. After its completion the then owner of such lots with the full knowledge and concurrence of its citizens, executed and acknowledged a proper deed to the board of county commissioners of Stafford county of the said real estate upon which said building was erected. This deed was made upon April 6, 1887, and contained the following clause: 'This deed is made as a donation and gift to Stafford county, to be used as court house and offices for the county officers.' In other respects said deed was a general warranty deed.

"3. On the date last aforesaid, said deed was delivered to the county clerk of Stafford county, who on the date last aforesaid filed the same for record in the office of the register of deeds of Stafford county, and said clerk has ever since had the same in his possession.

"4. No delivery of said deed was made to the board of county commissioners. Said board has not accepted the same, and never authorized the county clerk to receive, accept, or record the same, and at no time authorized the moving of the county offices, or their records, into the building.

"5. Prior to the recording of the deed, the county offices were kept in another building provided by the board. The citizens of St. John moved the records into said building without any authority from the board, and the county officers moved into the said building, some without protest and some under protest; and upon recording of said deed, the district court used the room in said building at the June and November terms, 1887. The county clerk having moved into the building with the records of the county, in April, 1887, the county board, under protest, went into his office, and held its session in such room under protest.

"6. On the 10th of April, 1887, the mayor of St. John officially notified the board in writing, that the house had been constructed...