State ex rel. McQueary v. Board of County Com'rs of Miami County

• Decision Date: 11 March 1950
• Docket Number: No. 37812,37812
• Citation: 215 P.2d 631,168 Kan. 723
• Parties: STATE ex rel. McQUEARY, County Attorney, v. BOARD OF COUNTY COMMISSIONERS OF MIAMI COUNTY et al.
• Court: Kansas Supreme Court

Page 631

215 P.2d 631

168 Kan. 723

STATE ex rel. McQUEARY, County Attorney, v. BOARD OF COUNTY COMMISSIONERS OF MIAMI COUNTY et al.

No. 37812.

Supreme Court of Kansas.

March 11, 1950.

Rehearing Denied April 15, 1950.

Syllabus by the Court

1. A ruling quashing service of process is a final order and if an appeal be not perfected within two months from its date, there can be no appellate review.

2. An action in quo warranto to challenge the validity of the organization of a joint rural high school district may be instituted in any one of the counties in which some of the defendants may be served with process and in which the school district may be situated.

3. Under Laws 1939, Ch. 257, appearing as G.S. 1947 Supp. 72-3501 et seq., whenever a petition signed by two-fifths of the legal electors residing in the territory of a proposed joint rural high school district, to be determined by an enumeration taken for the purpose by any legal elector in the proposed district and by him certified to the county commissioners, and reciting the boundaries of the proposed district and the approval thereof as required by the above statutes, shall be presented to the board of county commissioners of the county in which lies the greatest portion of territory comprising the district, that board has jurisdiction to determine the sufficiency of the petition and of the enumeration; and where there is no allegation of fraud or similar misconduct affecting the official action of the board its determination that the petition and enumeration are sufficient is conclusive and not subject to judicial review.

4. Plaintiff's allegation that more than one petition was filed for the organization of the joint rural high school district is not significant if the petitioners signing the several petitions were legal electors and the petitions were otherwise adequate.

5. Plaintiff's allegations that the petitions were not properly signed; that they did not show approval of the boundaries of the proposed district by the requisite officers before the petitions were filed; and that the enumerations were not sufficient are examined, and held, not to charge fraud or similar conduct of sufficient gravity that a court should interfere on account thereof.

6. The rule that in the description of a boundary monuments prevail over courses and distances will not be followed where it would result in destroying the continuity of a line which can be preserved by rejecting an obviously erroneous call.

7. Notice of an election first given on December 13, 1946, of an election held on January 3, 1947, gave twenty-one days notice to the electors.

8. In elections held under the statute above mentioned, the general election laws are applicable with not contrary to the act. In the absence of allegations to the contrary, it will not be assumed that more than one ballot was given to any elector nor that the form of the ballot used did not comply with the provisions of the general election law. G.S. 1935, 25-605.

9. Where notices of election were duly published in a newspaper in each county wherein the proposed joint rural high school district is situated, and posted on the doors of at least two school houses in the proposed district, in the absence of any allegation that any number of electors, large or small, failed to vote or that any legal elector failed to vote because he had no notice of the election, the mere fact that the notice of election was not posted on the door of another school house in the proposed school district, did not have the effect of making the subsequently held election void.

10. The amended petition in an action in quo warranto examined, and held, the trial court did not err in sustaining defendants' demurrer thereto.

A. J. Herrod, of Kansas City, argued the cause, and Oliver D. Rinehart, of Paola, was with him on the briefs for the appellant.

L. Perry Bishop, of Paola, and John H. Morse, of Mound City, argued the cause, and Bernard L. Sheridan and J. Milton Sullivant, both of Paola, were with them on the briefs for the appellees.

The opinion of the court was delivered by

THIELE, Justice.

This was an action challenging validity of the organization of a joint rural high school district, and seeking to oust it from exercising any corporate powers.

The plaintiff appeals from a ruling and decision quashing service of process issued against the board of county commissioners, the county clerk and the county treasurer of Linn county, and from an adverse ruling on a demurrer to the petition filed by LaCygne Rural High School District No. 6, Joint, and by the three members of its board of education.

Insofar as the ruling on the motion to quash is concerned, it is noted that in its original brief, appellant devoted considerable space to the question. In their brief the appellees point out that the ruling was made on March 14, 1949, and that notice of appeal was not filed until June 25, 1949, and that by reason of the balated appeal the question is not properly before this court for consideration. In its reply brief the appellant states that 'appellees appear to be correct.' The ruling quashing process was a final order, Newberry v. Arkansas, K. & C. Ry. Co., 52 Kan. 613, 35 P. 210, from which an appeal must be perfected within two months, G.S. 1947 Supp. 60-3309. The appeal was not perfected in time and the ruling is not before us for consideration.

Preliminary to discussing the demurrer to the petition, we note that the original petition named as defendants the board of county commissioners, the county clerk and the county treasurer of Miami county, the like officers of Linn county, LaCygne High School District No. 6, and Danner, Modesitt and Teagarden, pretended members of the board of education of pretended LaCygne Rural High School District No. 6. If the Miami county officials filed any pleadings, they are not included in the abstracts. Other defendants filed their motion to make the petition more definite and certain and to strike certain allegations, which motion was sustained in part and denied in part and thereafter an amended petition was filed. The amended petition is long and to a degree repetitious. We summarize its allegations.

After setting forth the status of the parties, it is alleged that in the year 1946 and the early part of 1947 an attempt was made to organize a rural high school district in Linn county and Miami county, consisting of certain described territory, which attempted organization was designated as LaCygne Rural High School District No. 6, Joint, and was void for the following reasons:

That certain persons residing in the two counties circulated petitions and filed the same with the board of county commissioners of Linn county requesting the board to call a special election to vote on the establishment of a rural high school, the petitions contained the names of persons purported to be legal electors residing in the territory; and

'* * * that no one of such petitions were signed by two-fifths of the legal electors residing in the city of LaCygne and no one of such petitions were signed by two-fifths of the legal electors residing in the territory of said proposed rural high school district outside of the city of LaCygne, but some of said petitions contained as few as seven, and other petitions contained as many as 166 names, and on said petitions appeared many names of persons who were not legal electors residing in the proposed territory to be incorporated in said Rural High School District, and said petitions also contained the names of many women who signed their names by writing either the initials or the first names of their husbands; that it was and is impossible to determine from said petitions the number of electors which the persons circulating and filing said petitions claimed resided in the proposed territory; that plaintiff is unable to state the date these petitions were filed, or whether all of them were filed the same day or upon different days.

'That some of the names on the petitions were not the signatures of the electors but only their names written by someone else and there was no evidence presented to the Board of County Commissioners of Linn or Miami County when the petitions were presented to them to establish the fact that every one of the names appearing on said petitions were written by the hand of said person, and no attempt was made to ascertain said fact, and said Commissioners did not then and do not now know if the signatures were genuine.

'That some of the petitions did not accurately recite the boundaries of said proposed district and the approval as required by law was not recited therein and was not in fact secured before the petitions were circulated, signed and filed.

'That the same name appeared on more than one petition and the pretended enumerations were in some cases made from the petitions which were signed prior to the pretended enumerations. That if the names of purported legal electors whose names are signed to said petitions who were not in fact legal electors residing in said proposed territory are eliminated, and the names of the women who signed the said petitions by writing the initials or the first names of their husbands are eliminated and the names of persons whose names appear on said petitions which were written on said petitions by some person other than the person whose name appears on said petitions are eliminated, and the duplication of the same name are eliminated from said petitions, said petitions do not contain the names of two-fifths of the legal electors residing in said proposed school district.'

It was further alleged there was no enumeration of the legal electors by any legal elector and by him certified under oath to the board of county commissioners of Linn county, wherein the greatest amount of the territory was located, and that sometime after the petitions were filed a number of sheets of paper purporting to be...