State ex rel. Beck v. Board of Com'rs of Allen County

• Decision Date: 09 May 1936
• Docket Number: 32814.
• Citation: 57 P.2d 450,143 Kan. 898
• Parties: STATE EX REL. BECK, ATTY. GEN., v. BOARD OF COUNTY COM'RS OF ALLEN COUNTY ET AL. [a1]
• Court: Kansas Supreme Court

57 P.2d 450

143 Kan. 898

STATE EX REL. BECK, ATTY. GEN., v. BOARD OF COUNTY COM'RS OF ALLEN COUNTY ET AL. ^[a1]

No. 32814.

Supreme Court of Kansas

May 9, 1936

Syllabus by the Court.

1. The fact that 1933 Supp.R.S. 68--516 provides the question of adoption of a county road unit system must be submitted to the electors of the county, but makes no provision for the nature or length of the notice to be given for such election does not relieve the board of county commissioners from giving reasonable official notice of such election, as such notice is necessarily implied in statutes providing for special elections.

2. The fact the county road unit system law makes no provision for notice of election, or that R.S. 25--105 providing for a ten-day notice of special elections may apply only to election of public officials, does not render the entire county road unit system law unconstitutional or void.

3. Quo warranto is an extraordinary remedy, and such an action instituted in this court to oust county commissioners from the management and control of a county road system by virtue of an invalid election is addressed in a large degree to the sound discretion of the court. Under all the facts and circumstances narrated in the opinion, the court, in the exercise of that discretion, declines to grant the relief sought.

Original action in the nature of quo warranto by the State, on the relation of Clarence V. Beck, Attorney General, against the Board of County Commissioners of Allen County and others.

Judgment for defendants.

Clarence V. Beck, Atty. Gen., Theo. F. Varner, Asst. Atty. Gen., L. T Cannon, of Humboldt, and C. J. Peterson, of Iola, for plaintiff.

J. C Edwards, Co. Atty., of Iola (G. R. Gard and Stanley E Toland, both of Iola, of counsel), for defendants.

WEDELL Justice.

This is an original action in the nature of quo warranto brought in the name of the state, on the relation of the Attorney General, for a declaratory judgment, and seeking to have adjudged illegal a special election held in Allen county at the general election on November 6, 1934, at which there was attempted to be submitted to the voters of Allen county the question of the adoption of the county road unit system in said county, and ousting the board of county commissioners of Allen county from any privilege, franchise, right, or jurisdiction over the township roads in the county of Allen, the road funds, road and bridge funds, and special motor vehicle tax funds of all of the townships in said county of Allen.

The parties have submitted the action upon issues joined by the pleadings and an agreed statement of facts. The agreed facts are lengthy and are appended to the opinion and made a part hereof.

Plaintiff first contends the election was illegal for the reason the county clerk of Allen county failed to give any notice thereof in the manner provided by law.

Statutes pertaining to the county road unit system in effect in 1934 when these proceedings occurred were 1933 Supp.R.S. 68--516, 68--516a, 68--517, and 68--518. No complaint is made relative to any failure to comply with the initiatory procedure for the adoption of a county road unit system, prescribed by 1933 Supp. R.S. 68-516. That statute concludes with the requirement that the board of county commissioners shall submit the question of the adoption of such system to an election within the county. It nor any other statute pertaining to the subject prescribes the nature or length of notice for such election. Plaintiff urges, although this election was held in conjunction with the 1934 general election, it was nevertheless a special election and an official ten days' notice was required as provided by R.S. 25--105, which reads: "It shall be the duty of the county clerk, and he is hereby required, to give public notice by publication in the official county paper, at least fifteen days before the holding of any election, except as otherwise provided by law, of the time of holding such election, and the officers at that time to be chosen, except in the case of special elections, when ten days' notice shall be given; if no official county paper be published in such county the notice shall be published in some paper having circulation in such county."

Plaintiff insists if that statute is not applicable as to notice required for this election, then the county road unit system law is unconstitutional. This contention is grounded on the theory there must be a specific provision for notice of an election. The difficulty with that contention is every law providing for an election necessarily implies the giving of a reasonable official notice. As stated, the law required the county commissioners to submit the question involved to the electors. The giving of notice of the election was therefore implied. In 59 C.J. 973, the rule is stated thus: "That which is implied in a statute is as much a part of it as that which is expressed. A statutory grant of a power or right carries with it, by implication, everything necessary to carry out the power or right and make it effectual and complete, but powers specifically conferred cannot be extended by implication." See Gilbert v. Craddock, 67 Kan. 346, 72 P. 869; Tatlow v. Bacon, 101 Kan. 26, 165 P. 835, 14 A.L.R. 269.

The failure to provide for notice does not render the road law itself unconstitutional. In the Tatlow Case, supra, this court said: "It has already been determined that a statute is not invalid merely by reason of the fact that it does not expressly provide for notice and hearing. It may be implied by the courts, unless the language of the statute excludes the theory that notice and hearing are necessary. Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 P. 781; Union Pac. R. Co. v. Abilene, 78 Kan. 820, 98 P. 224." 101 Kan. 26, at pages 28, 29, 165 P. 835, 836, 14 A.L.R. 269.

It therefore follows that although R.S. 25--105 may not be applicable with reference to the necessary notice for this election, the county road unit system law is not therefore unconstitutional. Defendants contend the statutes pertaining to the unit system of county roads and R.S. 25--105, are not in pari materia. They insist R.S. 25--105 has no application as it applies to political elections, that is, to the election of public officials. We do not deem it imperative that we decide whether under the circumstances of this case it was necessary to give notice of the election in conformity with the provisions of R. S. 25--105. The question here is: Was a reasonable official notice given to the voters of Allen county, advising them of the date and issue to be decided at this election?

Defendants assert the question of nature and length of notice rested in the discretion of the county commissioners, and that they did not abuse their discretion in this respect. The answer to the first part of this contention is discretion of the commissioners was not exercised in the premises. They passed the matter of notice entirely to the county clerk. The pertinent portion of the resolution adopted by the commissioners reads: "The county clerk of Allen county is hereby directed to take all steps necessary to submit said question to the electors of said county at the next general election."

The nature of the notice relied upon by defendants is contained in paragraph 6 of the agreed facts. Subparagraph (a) and (b) of paragraph 6 deal with procedural steps prior to the election. They are not pertinent to and cannot be substituted for notice of an election. Subparagraph (c) deals with editorials published on the front page of the Iola Daily Register, a newspaper in Allen county. Editorials in a newspaper are not an official notice of an election. Subparagraph (d) pertains to printed placards conspicuously posted at voting stations in each precinct. They contained a review of the initiatory procedure prior to the election, relative to petitions for and against the adoption of the county road unit system and the resolution of the commissioners which directed the county clerk to take all necessary steps to submit the question at the next general election. The contents of this placard were printed below another placard, which last placard dealt with the proposed amendment to the Constitution relative to the repeal of the prohibition amendment. We do not mean to insinuate that the road proposition was deliberately concealed by this arrangement of the placard. We do think, however, the portion of the placard which dealt with the road system served little if any notice of an impending election on the subject of a new road system for Allen county. The voters would normally observe the large heading at the top of the placard which dealt with the prohibition amendment and naturally assume the entire placard dealt with the latter subject.

The twenty-first paragraph of the agreed statement admits the general election notice was given in the manner provided by law, but that such notice contained no reference to the submission of the county road unit system. It is clear no official notice was published in the official county paper or in any other paper with regard to the road election. True there was naturally much discussion in connection with the petitions favoring and opposing the adoption of the new system. The front page newspaper editorials may have caused more comment and discussion than an official announcement would have elicited. We cannot, however, substitute such unofficial acts for an official announcement which is essential to all elections. Voters are presumed to know the date of general elections as they are fixed by statute. This is not true of special elections. As to the latter, the voter expects and has the right to receive official notice of the date and issues to be...