State v. Staley

• Decision Date: 11 October 1913
• Docket Number: 18,997
• Citation: 135 P. 602,90 Kan. 624
• Parties: THE STATE OF KANSAS, ex rel. JOHN H. CONNAUGHTON, as County Attorney, etc., Plaintiff, v. M. M. STALEY et al., Defendants
• Court: Kansas Supreme Court

135 P. 602

90 Kan. 624

THE STATE OF KANSAS, ex rel. JOHN H. CONNAUGHTON, as County Attorney, etc., Plaintiff, v. M. M. STALEY et al., Defendants

No. 18,997

Supreme Court of Kansas

October 11, 1913

Decided July, 1913.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

TOWNSHIP HIGH SCHOOL--Special Election--Notice Required. Section 2 of chapter 262 of the Laws of 1911, providing for a special election to decide the question of locating and establishing a township high school, voting bonds therefor and electing a township high-school board, requires notice of such election to be posted and also published for at least twenty-one days prior to the election; and a special election held thereunder, the notice of which is published less than twenty-one days prior to the day fixed, is void.

John H Connaughton, and Charles C. Calkin, both of Kingman, for the plaintiff.

George L. Hay, and L. F. Walter, both of Kingman, for the defendants.

OPINION

PORTER, J.:

By this proceeding the state seeks to oust the defendants from exercising the powers and privileges of the high school board of Eagle township, Kingman county, and contends that the proceedings taken for the establishment of a township high school and the election of a high-school board were so defective as to be wholly void. The case has been submitted upon an agreed statement of facts.

The statute involved is chapter 262 of the Laws of 1911, as amended by chapter 278 of the Laws of 1913. The statute provides that upon the presentation of a petition signed by more than one-third of the legal electors of any township to which the statute applies, the township board shall call a special election to decide the question of locating and establishing a township high school and the voting of bonds therefor, and also provides for a special election to elect a township high-school board, to consist of a director, clerk and treasurer.

Various objections have been raised to the form of the petition upon which the election was called, but the only serious defect we find in the proceedings is that the notice of the election was insufficient, which in our opinion entitles the plaintiff to a judgment of ouster.

The provision for notice reads:

"All elections held under the provisions of this act shall be governed by the provisions of the general election law of this state where not contrary to this act. Notice of all such elections shall be given at least twenty-one days prior to the day fixed for such election, by posting up printed or typewritten notices on the door of each school house in said township, and publishing the same twice in the official county paper of the county wherein the township is situated, setting forth fully the purposes and objects of such election and the time and place or places where it is to be held." (Laws 1911, ch. 262, § 2.)

It is admitted that the notice was posted upon the door of each schoolhouse in the township more than twenty-one days prior to the election. The first notice in the newspaper was published on May 9, the election being called for the 27th. This notice, therefore, was first published less than twenty-one days prior to the election. The defendants' contention is that the statute being silent as to when the first and last notice shall be published, the limitation of twenty-one days applies only to the posting of the notices that usually where the legislature intends that the first or last publication of an election or other notice must be made on or before a certain date, the time is definitely stated in the statute. Thus, in case of service by publication, the notice must give the defendant not less than forty-one days from the date of the first publication in which to answer. (Civ. Code, § 80.) The notice of a special election for the adoption in cities of the first class of the commission form of government requires that the last publication of the notice shall be at least twenty days prior to the date of the election. (Gen. Stat. 1909, § 1337.) The act authorizing cities of the second or third class to vote refunding bonds provides that if it be a special election the notice shall be published for three consecutive weeks next preceding the election. (Gen. Stat. 1909, § 810.) Other instances cited are the...