State v. Burton

• Citation: 27 P. 141,47 Kan. 44
• Parties: THE STATE OF KANSAS, on the relation of C. N. Sears, as County Attorney of Cheyenne County, v. J. C. BURTON, as County Clerk, etc., et al
• Decision Date: 09 July 1891
• Court: Kansas Supreme Court

27 P. 141

47 Kan. 44

THE STATE OF KANSAS, on the relation of C. N. Sears, as County Attorney of Cheyenne County, v. J. C. BURTON, as County Clerk, etc., et al

Supreme Court of Kansas

July 9, 1891

Decided July, 1891.

Original Proceeding in Mandamus.

THE case is stated in the opinion, filed July 9, 1891.

Writ of Mandamus denied.

C. N Sears, county attorney, for The State; Edwin A. Austin, and S.W. McElroy, of counsel.

Webb & Lindsay, for defendants.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

This is an original proceeding in mandamus, brought by the county attorney, to compel the county officers named, of Cheyenne county, to remove their respective offices from St. Francis to Bird City, and to compel them to hold their offices at Bird City, as the permanent county seat of Cheyenne county. The alternative writ was allowed on the 2d day of February, 1891, and served on the defendants on the 7th. The cause was submitted upon the facts stated in the alternative writ and answer. The facts material to the issue, as claimed by the plaintiff, are substantially as follows:

Cheyenne county was organized April 1, 1886, and Bird City was designated as the temporary county seat. An election was held on the 15th day of May, 1886, and Bird City received a majority of the votes cast for the permanent county seat. The county officers held their respective offices at Bird City until about the 1st day of March, 1889, when they removed their offices to St. Francis. The answer of the respondents was a justification of such removal and continuance of the county seat at St. Francis, upon three grounds: First, that the election on the 15th day of May, 1886, had been adjudged to be null and void; second, that there had been a subsequent election held in the county, on the 26th day of February, 1889, at which St. Francis received a majority of all the votes cast for the permanent county seat; and, third, that by an act of the legislature, approved February 5, 1891, St. Francis was declared to be the permanent county seat.

I. The plea of res adjudicata is stated in the answer to the alternative writ, as follows:

"That the election in Cheyenne county on the 15th day of May, 1886, so far as the location of the county seat was and is concerned, was duly and finally determined and adjudged against the relator, the state of Kansas, and all persons whomsoever, by the consideration and decree of the district court of Cheyenne county, in a certain proceeding duly commenced, pending and had in said court, wherein the state of Kansas, on the relation of Thomas J. McCarty and R. M. Jacques, citizens, electors and tax-payers of the town of Wano, were plaintiffs, and Edwin M. Phillips, clerk of district court of Cheyenne county, was defendant, in the nature of mandamus to compel said Edwin M. Phillips, as such clerk, to remove his office from the town of Bird City, where he was unlawfully keeping his office, and to keep the same at the town of Wano, now St. Francis, which said last-named place the relators alleged to be the county seat of said county, and in which the said relators sought to, and did, contest the pretended election held May 15, 1886, and the result thereof as declared by the board of county commissioners of said county, upon which election and result relator herein relies in this action and proceeding. It was duly and finally adjudged by said court, that said pretended election was null and void, and that no town was and had been chosen as permanent county seat of said county at said election."

The plea cannot be sustained in this case, which is brought upon the relation of the county attorney. The state is not bound by a suit prosecuted by a private party, in an action of this kind. (The State ex rel. v. Stock, 38 Kan. 154, 16 P. 106.)

II. The second plea of justification may be briefly stated:

"That afterward, on January 19, 1889, upon a petition of a sufficient number of the electors of said county whose names appeared on the last assessment rolls of the township assessors of the county, filed with the county clerk of said county, the board of county commissioners, acting on said petition, called an election to be held February 26, 1889, for the purpose of permanently locating the county seat of said county; that notice of said election was duly published by the county clerk on January 24, 1889, and weekly thereafter, in a newspaper published and of general circulation in said county; that notice of said election was also duly published by the sheriff of said county on January 31, and weekly thereafter until said election, in a newspaper published and of general circulation in the county; that afterward, on January 28, 1889, the board of county commissioners duly appointed certain persons to fill vacancies existing in the board of registrars for the several voting precincts in said county; that registration of the voters in the manner provided by law, by the persons authorized by law to act as judges of election in the several election precincts in said county, was had, and, in pursuance of said proceedings of said board of county commissioners and said notice of said election, an election was held in said Cheyenne county, on February 26, 1889, for the purpose of permanently locating the county seat of said county; and at said election, and by the result thereof as canvassed, the city of St. Francis received a majority of all the legal votes cast at said election, as was duly declared by the board of county commissioners sitting as a board of canvassers of the election returns of said election in said county."

We think this plea is bad. Taken in connection with the first, it appears that the state was not bound by the judgment of the court which declared the first election void; hence, it is not clear that there was any authority for calling the second election. The judgment and decree of the district court of Cheyenne county, upon the relation of two citizens, against the clerk of the district court, was not sufficient ground for ordering another election. The first election must be set aside by some competent authority by which the state is bound, before another election could be ordered; and the subsequent election, having been held within five years, was unauthorized.

"No election for the relocation of such county seat shall be ordered or had within five years from the time of the holding of the last preceding election,...