The Hutchinson & Southern Railroad Company v. The Board of Commissioners of Kingman County

• Decision Date: 01 January 1892
• Citation: 28 P. 1078,48 Kan. 70
• Court: Kansas Supreme Court
• Parties: THE HUTCHINSON & SOUTHERN RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF KINGMAN COUNTY et al

28 P. 1078

48 Kan. 70

THE HUTCHINSON & SOUTHERN RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF KINGMAN COUNTY et al

Supreme Court of Kansas

January 1, 1892

Original Proceeding in Mandamus.

THE opinion herein, filed February 6, 1892, states the material facts.

Geo. R Peck, A. A. Hurd, C. N. Sterry, W. H. Whitelaw, and W. M Wallace, for plaintiff.

George W. Cooper, and John W. Cooper, for defendants.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.

This is an original proceeding in mandamus, instituted by the Hutchinson & Southern Railroad Company, to compel the board of county commissioners and county clerk of Kingman county to issue the bonds of Richland township, in Kingman county, in the sum of $ 13,000, to the plaintiff. These bonds were voted by Richland township on the 27th day of November, 1889, to the Omaha, Hutchinson & Gulf Railway Company, under the laws of the state of Kansas, as aid to such company in the construction of its railroad through Richland township. The Hutchinson & Southern Railroad Company, having purchased the railroad property, real and personal, and all the rights, privileges, franchises, etc., of the Omaha, Hutchinson & Gulf Railway Company, now claims these bonds as such purchaser and assignee. The defendants claim that the plaintiff is not now entitled to such bonds, and ought not to prevail in this suit, for four reasons: First, because the petition on which the bond election of November 27, 1889, was held did not contain two-fifths of the resident tax-payers of Richland township; second, because the notice of the election was defective; third, because the Omaha, Hutchinson & Gulf Railway Company sold out to the Hutchinson & Southern Railroad Company, and the Hutchinson & Southern Railroad Company could acquire no right to such bonds under such sale; fourth, that no demand was made on defendants by plaintiff for the bonds before suit was brought.

Plaintiff contends that two-fifths of the resident tax-payers of Richland township did sign the petition on which the election was called; that due and proper notice of such election was given, but that if the notice was defective, it was an irregularity which was cured by actual notice to the voters of the township, and a very full vote; that the plaintiff has the right to demand the bonds as purchaser from the Omaha, Hutchinson & Gulf Railway Company; that proper demand, oft repeated, was made by plaintiff for the bonds, which was as often refused; that even if two-fifths of the resident taxpayers of Richland township did not sign the petition on which the bond election was called and held, defendants are now estopped from raising any such question.

The original writ in this cause contained the averments that, on the 18th day of October, 1889, a petition (which is fully set out in the writ), signed by more than two-fifths of the resident tax-payers of Richland township, was presented to the board of county commissioners of Kingman county, praying that such board call an election for the purpose of submitting to the voters of Richland township the question of voting aid to the Omaha, Hutchinson & Gulf Railway Company; that said board duly considered said petition in special session, and determined and found that said petition was signed by two-fifths of the resident tax-payers of Richland township, called the election prayed for in said petition, to be held in Richland township on the 27th day of November, 1889, and ordered the sheriff of Kingman county, Kansas, to give due notice thereof; that said sheriff did give due notice of such election, by proclamation duly published, etc.; that all the voters of said township also had actual notice of such election and attended the polls on the 27th day of November, 1889, and voted, without exception, at said election; that a large majority of such voters voted for the bonds; that the board of county commissioners of Kingman county duly canvassed the returns of said election and declared the result to be that a majority of the votes polled at said election were in favor of the issuance of the bonds, and ordered the county clerk of Kingman county to subscribe to the capital stock of the Omaha, Hutchinson & Gulf Railway Company, for and in behalf of said Richland township, in the sum of $ 13,000, the amount voted at said election, and that said county clerk did duly make its subscription, as ordered by the board of county commissioners. It is also shown that the railroad was completed through the township on the 27th day of May, 1890, in accordance with the terms of the subscription. The election resulted in favor of the subscription, by a vote of 73 for and 40 against. This action was commenced on the 6th day of December, 1890. Other facts that may be material will be noticed hereafter.

The petition of the resident tax-payers presented to the board of county commissioners, praying that an election be ordered, recites that "We, the undersigned, your petitioners, being two-fifths of the resident tax-payers of the municipal township of Richland, Kingman county," etc. The board of county commissioners, in ordering the special election, entered on their journal this statement, to wit:

"And having examined said petition, find that the same was in due form, and was duly signed by more than two-fifths of the resident tax-payers of said Richland township, and being regular in all other respects, and the said county commissioners being so satisfied, do so find."

The second, third and fourth defenses relied upon by the respondent township are not good, for various reasons. The objection that the notice of election was defective is met by the showing in the record that every legal voter in the township except one attended the election and cast his vote, and hence had knowledge of the time and place at which the election was held. The third defense, "because the Omaha, Hutchinson & Gulf Railroad Company sold out to the Hutchinson & Southern Railroad Company, and the latter company could acquire no right to the bonds under such sale," is met by the decisions of this court in the cases of A. C. & P. Rld. Co. v. Comm'rs of Phillips Co., 25 Kan. 261; S. K. & P. Rld. Co. v. Towner, 41 id. 72; Bates Co. v. Winters, 112 U.S. 325, 28 L.Ed. 744, 5 S.Ct. 157; Scotland Co. v. Thomas, 94 id. 682; and P 1269, Gen. Stat of 1889. The fourth defense, that no demand was made by the plaintiff of the defendants for the bonds before the suit was brought, is disposed of by evidence contained in the record.

It seems to us, regarding the legal effect of the recitations in this record, that the petition for the election declares on its face that the signers thereof are resident tax-payers; that the board of county commissioners found and determined that the petition was good, and contained the names of two-fifths of the resident tax-payers of the township of Richland; that the election was ordered by reason of that finding and determined by the board; that the election was held, the votes canvassed, and the result declared, and that all this was done without objection or protest from any of the citizens of that township; that the relator presents at least a very strong prima facie case for the allowance of the peremptory writ, so strong, in fact, that if the writ cannot be granted, it must be that it is because the township has made such a strong showing that the petition was defective, by reason of not being signed by the requisite number of resident tax-payers, as to completely overcome the prima facie case. And in relation to this question, some other facts, and some very strong inferences arising from the record, very vigorously reinforce the prima facie showing made by the relator. The tax-roll of that year is introduced in evidence, and this shows that the number of resident tax-payers in the township of Richland was about 70. This tax-roll was made by the township trustee before any proposition for railroad aid was discussed, or, so far as we know, even thought of, and is therefore free from any suspicion that it was made either in the interest of or adverse to such a proposition. Again, the evidence discloses that there were two factions in the township, and that the resident tax-payers were besieged both in favor of and against signing the petition calling for an election; that the attention of the entire population of the township was called to the subject, and that there was an earnest and determined effort made by both factions; and yet we find that the insufficiency of the petition is first alleged after demand is made for the issue of the bonds. These things are so entirely inconsistent with the claim now made of the insufficiency of the petition, that great weight should be given them.

The writer of this opinion has read somewhat carefully the voluminous mass of evidence taken on both sides of this question, and is inclined to the opinion that upon the whole record the petition is sufficient, but the decision of this case is based upon other facts that are indisputable. Many of these facts have been already referred to, and as they are thoroughly established by the evidence, or stated by both parties in such a manner as to be taken for granted, and as some others are asserted and not disputed, they are to be accepted as controlling. We allude to certain facts independent of the petition for the election, such as the efforts of one party to secure, and the other to prevent, the required number of resident tax-payers to sign the petition; the presentation of the petition to the board of county commissioners; its allowance; the findings and determination of the board with respect to its form and legality; the holding of the election and almost unanimous participation of the electors of...