State Ex Rel. Crooker v. Echols

• Decision Date: 09 February 1889
• Parties: THE STATE OF KANSAS, on the relation of Geo. B. Crocker, County Attorney, v. R. H. ECHOLS et al
• Court: Kansas Supreme Court

20 P. 523

41 Kan. 1

THE STATE OF KANSAS, on the relation of Geo. B. Crocker, County Attorney, v. R. H. ECHOLS et al

Supreme Court of Kansas

February 9, 1889

Original Proceeding in Mandamus.

PETITION filed on December 15, 1887. The opinion, filed at the session of the court in February, 1889, states the material facts.

Plaintiff's peremptory writ denied.

Russell Wiggins, and J. D. McFarland, for plaintiff.

Shepard Grove & Shepard, for defendants.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is an original action of mandamus, commenced in this court in the name of the state of Kansas, on the relation of the county attorney of Harper county, to compel the board of county commissioners and the county clerk of that county to make a canvass of the returns and declare the result of an election held in that county on the 8th day of November, 1887, upon a proposition then submitted to the voters of the county and voted upon to establish a county high school at the city of Attica, and also to appoint six persons, having the qualifications required by law, as a board of trustees for such high school.

It appears that at the October session of the board of county commissioners of Harper county, a petition was presented to the board requesting that an election be called for the purpose of submitting to the voters of Harper county a proposition to establish a county high school at the city of Attica. The prayer of the petition was granted by the board, and an election ordered to be held on November 8, 1887. Notice of the election was directed to be given by publication in the Anthony Republican, and by making due proclamation in the manner required by law. The election was held at the same time as the general election of that year for county officers, and on the Friday following the election the defendants met at the office of the county clerk and proceeded to canvass the returns of the election, and also the returns on the proposition to establish a county high school. It was found that 2,264 votes were cast upon the proposition, and of these 1,397 were in favor of the proposition, and 867 were against it. It was also found that the highest number of votes cast at that election, as shown by the returns made to the county clerk for county officers, was 3,109 -- that being the number of votes cast for county treasurer. The board of canvassers thereupon determined and declared that the proposition had not carried; and thereupon an application was made for and an alternative writ of mandamus awarded against the defendants, commanding them to reassemble and declare the proposition to have been carried, or show cause why they refused to do so.

Two objections are urged against the allowance of a peremptory writ: one. that the proposition did not receive a majority of all the votes cast at that election, and therefore failed; and another, that the election held was invalid because legal notice of the same was not given. Upon the first objection there is no room for controversy. The statute under which the election was held provides that the question of establishing a county high school shall, upon proper petition and notice, be submitted to the voters of a county at a general or special election, by the board of county commissioners; and it is further provided, that "after said election the ballots on said question shall be canvassed in the same manner as in the election for county officers, and if a majority of all the votes cast shall be in favor of establishing such high school," the county commissioners are then required to appoint trustees and otherwise provide for the maintenance of such school. (Laws of 1886, ch. 147, §§ 1, 2, 3.) The question presented is, whether the proposition must receive a majority of the highest number of votes that may be cast upon any question at that election, or whether a majority of those cast upon the proposition itself is sufficient to give the required consent. This question has been already considered and settled in an action arising on a substantially similar statute. In Comm'rs of Marion Co. v. Winkley, 29 Kan. 36, the validity of an election upon a proposition to allow a bounty for the growing and cultivation of hedge fences was under consideration, and the statute upon which the election was held provided that "if a majority of the votes cast are for the bounty, they shall declare said law to be in full force and effect." That proposition was voted on upon the day on which the general election for township officers in the county was held, and it did not receive a majority of the votes cast at the township election, and it was therefore contended that the proposition was defeated. It was decided, however, that "the electors who were present at the polls, at the called election, and, while voting for township officers, did not vote upon the bounty proposition, are presumed to assent to the expressed will of the majority of those voting thereon." This is a controlling authority, and disposes of the first objection that has been made. (See also County Seat of Linn Co., 15 Kan. 500; Cass v. Johnston, 95 U.S. 360, 369.)

The second objection is a more serious one, and must be held fatal to the election upon which the right to a peremptory writ is based....