State Ex Rel. Bradford v. Sherman County Com'rs

• Court: Kansas Supreme Court
• Writing for the Court: HORTON, C. J.:
• Citation: State Ex Rel. Bradford v. Sherman County Com'rs, 18 P. 179, 39 Kan. 293 (Kan. 1888)
• Decision Date: 04 May 1888
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THE BOARD OF COMMISSIONERS OF SHERMAN COUNTY

18 P. 179

39 Kan. 293

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THE BOARD OF COMMISSIONERS OF SHERMAN COUNTY

Supreme Court of Kansas

May 4, 1888

Error from Sherman District Court.

ON November 23, 1887, the state of Kansas, upon the relation of the attorney general, brought its action against the county commissioners of Sherman county to restrain and enjoin them from meeting as a board of canvassers to canvass and declare the result of the returns of an election held in Sherman county on November 22, 1887, to locate the permanent county seat of that county. In the absence of the district judge from the county, a temporary injunction was granted by the probate judge. On February 1, 1888, a motion to dissolve the temporary injunction was heard by the district judge at chambers, at Norton, in Norton county. The parties filed with the judge the following agreed statement of facts:

"1. The defendant is the board of county commissioners, composed of John Bray, E. L. Lyons, and Chas. E. Bennett.

"2. Sherman county was organized September 20, 1886, at which time the town of Eustis was designated by the governor as the temporary county seat.

"3. An election for county officers, and for the location of the permanent county seat of said county, was held November 8 1886, at which no town received a majority of the votes cast for said county seat.

"4. The permanent county seat had not been located, and no county buildings had been erected in said county on October 3, 1887 at which time a legal and proper petition, signed by a majority of the legal electors of the county, was presented to the board of county commissioners, requesting it to call an election for the location of the permanent county seat and on said day an injunction proceeding was commenced in the district court and an order made therein by Judge Pratt and served upon the defendants, restraining them from calling said election until the application for injunction should be heard before him at chambers, in Atwood, Rawlins county, on the 6th instant, by reason whereof the board delayed further action, subject to the order of the judge upon the application for said injunction, and continued the further examination of said petition until October 10, 1887.

"5. The judge having dissolved said restraining order, and refused to grant said injunction, the board met pursuant to said adjournment, and having examined said petition and adjudged it legal and sufficient, made the following order to wit:

"'This cause coming on to be heard on the petitions of the electors to call an election for the location of the county seat of Sherman county, Kansas: the board of county commissioners being duly organized for business in regular session, present Geo. W. Benson, county clerk of said county. The said board having examined the last assessment rolls of said county, and finding that a majority of the electors of said county, as ascertained from said last assessment rolls of said county, and that said petition contained 1,150 names; whereof it is considered, ordered and adjudged that an election will be held November 22, 1887.

"'STATE OF KANSAS, COUNTY OF SHERMAN, ss.-- I, Geo. W. Benson, county clerk of the aforesaid county and state, do hereby certify that I have received no fees belonging to said county.

Attest: GEO. W. BENSON, County Clerk

JOHN BRAY, Chairman.'

"6. The Sherman County Dark Horse and the Sherman County Republican are each newspapers published in Sherman county, and said election notice was published in and as a part of the commissioners' proceedings, in the Sherman County Dark Horse, in the issues of October 20 and 27, 1887, respectively.

"7. At said time John Bray was the chairman of the board of county commissioners, and R. G. Albright the sheriff of said county.

"8. The said board regarding this notice as informal, John Bray, as the chairman thereof, prepared and caused to be published in the Sherman County Republican, in the issue of October 28th, and in each succeeding issue thereof until the election, November 22, 1887, a more formal notice of said election, of which the following is a copy, to wit:

"'NOTICE OF COUNTY-SEAT ELECTION.

Whereas, on the -- day of October, 1887, a petition asking for the calling of a county-seat election in Sherman county, Kansas, was duly presented to the board of county commissioners of said county; and whereas, said petition was, by said board of commissioners, examined and adjudged sufficient and legal, and that it contained the signatures of a majority of the electors of said county: now, therefore, it is hereby ordered by the board of county commissioners that an election be held at the usual voting places in each of the election precincts of Sherman county, Kansas, on Tuesday, November 22, 1887, for the location of the permanent county seat of said county; and that all ballots cast at said election must be headed 'For the county seat' and following thereafter shall be the name of the place for which the elector desires to vote. JOHN BRAY,

Chairman Board County Commissioners.

In witness whereof, I have hereunto subscribed my name, and affixed my official seal.

"'Attest: Geo. W. BENSON, County Clerk. [L. S.]'

"This notice was made and signed by the chairman, John Bray, at his residence twelve miles distant from the county clerk's office, in the absence of the other members of the board, and by him transmitted to County Clerk Benson, who affixed his attestation thereto, and caused it to be published as aforesaid.

"9. Sheriff R. G. Albright posted at the several voting places in the county, October 23, 1887, a notice of said election, and caused a copy thereof to be published in the Sherman County Republican, in the issue of October 28, 1887, and in each succeeding issue thereof until November 22, 1887. The following is a true copy of the notice published and posted by the sheriff as aforesaid, to wit:

"'NOTICE.--Proclamation for County-Seat Election.--I, R. G. Albright, sheriff of Sherman county, Kansas, by virtue of the authority vested in me by the laws of the state of Kansas, hereby give notice to the qualified electors of Sherman county, Kansas, that on Tuesday, November 22, 1887, an election will be held at the usual voting places in said county, for the location of the permanent county seat of said county, and that all ballots cast at said election must be headed 'For the county seat,' and following thereafter shall be the name of the place for which the elector desires to vote. R. G. ALBRIGHT, Sheriff.'

"10. A legal registration was duly had in each of the voting precincts of the county, and said election was duly held November 22, 1887, resulting as follows, to wit:

No. of Votes Cast for

No. of

Electors

Registered

Goodland.

Voltaire.

Eustis.

Shermanville

Township

201

80

119

Washington Township,

Precint No.1

202

72

125

Washington Township,

Precint No. 2

83

43

16

Voltaire Precint

250

101

11

122

Itasca No. 1

333

190

130

Itasca No. 2

113

72

31

McPherson Township,

Precint No. 1

155

145

10

McPherson Township,

Precint No. 2

125

75

44

Grant Township

219

94

85

Totals

1,681

872

12

682

"The election officers, having duly canvassed the votes cast at said election, returned the poll-books and ballots to the various township clerks and the county clerk of said county, to be canvassed by the defendants, when the plaintiff herein caused the probate judge of said county to enjoin the canvass thereof.

"11. The petition for the injunction herein was not filed in the office of the clerk of the district court until after the injunction had been granted by the probate judge.

"12. At the trial of the motion to dissolve, before Judge Pratt, the plaintiff admitted that it had examined the petition filed with the defendants, requesting them to call the election, and found it to be a legal and sufficient petition."

The district judge found, as a matter of fact, that the allegations of the petition for the injunction, other than as qualified by the admissions of fact contained in the agreed statement of facts submitted, were untrue. Upon the pleadings, agreed statement of facts and admissions, the temporary injunction was dissolved and wholly vacated. The plaintiff excepted, and brings the case here.

S. B. Bradford, attorney general, Bagley & Andrews, and W. A. S. Bird, for plaintiff in error.

Fred. A. Albee, county attorney, for defendant in error; Brown & Knight, and D. Rathbone, of counsel.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Sherman county was organized September 20, 1886, at which time Eustis was designated by the governor as the temporary county seat of the county. A special election was held on November 8 1886, for the permanent location of the county seat. Eustis received three hundred and seventy-six votes; Sherman Center, three hundred and fifteen votes; and Voltaire, two hundred and forty-one votes. The election therefore resulted in no choice, as none of the towns voted for received a majority of the votes cast. On October 3, 1887, a petition was filed under § 1, ch. 26, Comp. Laws of 1885, of the "Act concerning the location and removal of county seats" for an election for the permanent location of the county seat of the county. On October 10, 1887, upon the petition presented, the board of county commissioners ordered an election to be held November 22, 1887. The election was held, and Goodland received eight hundred and seventy-two votes; Eustis, six hundred and eighty-two votes; and Voltaire, twelve votes. On the part of the plaintiff, it is alleged that this election was void. The defendants contend that the election was legally called and held; and, as Goodland received a...