State Ex Rel. Bradford v. Robertson

• Citation: 21 P. 382,41 Kan. 200
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. JOHN B. ROBERTSON et al
• Decision Date: 09 March 1889
• Court: Kansas Supreme Court

21 P. 382

41 Kan. 200

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. JOHN B. ROBERTSON et al

Supreme Court of Kansas

March 9, 1889

Original Proceeding in Quo Warranto.

THE facts are stated in the opinion herein, filed at the session of the court in March, 1889.

A. M Mackey, and S. N. Wood, for plaintiff.

J. L Pancoast, John G. B. Hall, W. B. Lawrence, and Lauck &amp Orner, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an original action in this court in the nature of quo warranto. The purpose of the action is to disorganize the county of Stevens on two grounds: 1st. The invalidity of chapter 37 of the Laws of 1886, entitled "An act to restore or recreate and define the boundaries of the counties of Seward, Stevens, and Morton, in the state of Kansas, and repealing all former laws relating to the boundaries thereof;" 2d. Fraud in taking the census of the county, and in the return thereof made to the governor.

On the 24th of May, 1886, there was presented to the governor a memorial in writing purporting to have been signed by 455 householders, who were alleged at the time to be legal electors and residents of Stevens county--an unorganized county; the memorial purported to show that there were 2,500 bona fide inhabitants in the county; and that 400 of them were householders. The memorial prayed that the county might be organized, and was accompanied by the affidavit of five persons to the effect that the signatures attached to the memorial were the genuine signatures of householders and bona fide residents of the county, residing therein for six months; and to the further effect that there were 2,500 bona fide inhabitants in the county. After the memorial had been filed in the office of the governor and considered by him, he appointed, on May 24, 1886, J. W. Calvert to take the census of the county, and determine the number of bona fide inhabitants therein. On the 2d of June, 1886, Calvert commenced to take the census of the county, and completed the same on the 30th of July, 1886, and on the 3d of August, 1886, made his return thereof, verified by his oath, to the governor; his return, upon its face, purported to show that there were 2,662 bona fide inhabitants within the county; that 868 of the number were householders, and 627 of the number voters. On the 3d of August, 1886, in accordance with the provisions of the statute relating to the organization of new counties, the governor appointed J. B. Robertson, H. O. Wheeler, and J. S. Chamberlain to act as county commissioners of Stevens county; J. W. Calvert to act as county clerk of the county; and designating Hugoton to be the temporary county seat of the county. All of these persons qualified on the 5th of August, 1886. The petition in this case was filed August 31, 1886, but the summons that was actually served was issued October 5, 1886, and returned with service October 15, 1886. John B. Robertson and H. O. Wheeler, two of the defendants, ceased to act as commissioners on September 13, 1886, having been succeeded in office by other persons, elected September 9, 1886.

It is contended that chapter 37 of the Laws of 1886 is invalid for the following reasons: 1st. Because the president of the senate and the speaker of the house of representatives failed to sign the enrolled bill; 2d. Because the enrolled bill and the house journal do not agree as to the dates that the bill was presented and passed; 3d. Because the name of the county of Kansas, which appeared in the original bill presented to the house, was never, by vote or otherwise, legally changed to Morton; 4th. Because it is alleged that the act of 1886 which regularly passed both houses of the legislature of 1886, relating to Seward, Stevens and other counties, was lost, and that another bill, which had never passed the legislature, was surreptitiously substituted in its place; that this surreptitious bill was approved by the governor, and subsequently enrolled. The enrolled bill is known as "House bill No. 39," and the house journal shows that it originated in the house January 20, 1886; that the bill was read the second time on January 21st, and referred to the committee on county seats and county lines; that the committee, on the 29th of January, reported the bill back, with various amendments, and recommended its passage; that on February 17th the bill was again before the house, and on motion of Mr. Smith, of McPherson, all after § 4 to § 16 was stricken out, leaving in the bill only the counties of Seward, Stevens, and Kansas; that the bill after having been amended, passed by a vote of 72 yeas to 31 nays; that subsequently its title was agreed to; that on February 18th it was engrossed and sent to the senate. As originally presented, the bill was entitled "An act to restore or re-create and define the boundaries of the counties of Seward, Stevens, Kansas, etc." The engrossed bill was messaged to the senate as "House bill No. 39, An act to restore and re-create certain counties therein named." Subsequently, H. B. Kelly called for the reading of house messages, and the senate journal shows that thereupon house bill No. 39, "An act to restore or re-create and define the boundaries of the counties of Seward, Stevens, Kansas, etc.," was read the first time; an emergency was declared, and the bill was read the second time; an emergency was again declared, and house bill No. 39 was read the third time and placed upon its final passage, subject to amendment and debate. Soon after, it passed the senate by a vote of yeas 24, nays 8. The title was then agreed to. The house journal shows that it was returned to the house from the senate on February 18th as "House bill No. 39, An act to restore or re-create certain counties therein named;" and that, on February 18, the house committee on enrolled bills reported that they had compared the engrossed copy of "House bill No. 39, An act to restore or re-create and define the boundaries of the counties of Seward, Stevens and Morton, in the state of Kansas, and repealing all former laws relating to the boundaries thereof," with the enrolled bill, and that the same was correctly enrolled. It also reported that the bill...