Wycoff v. Board of County Com'rs of Logan County

• Decision Date: 10 July 1963
• Docket Number: No. 43308,43308
• Citation: 383 P.2d 520,191 Kan. 658
• Parties: Richard WYCOFF and Baymond Wycoff, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LOGAN, Kansas, et al., Appellees.
• Court: Kansas Supreme Court

Page 520

383 P.2d 520

191 Kan. 658

Richard WYCOFF and Baymond Wycoff, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LOGAN Kansas, et al., Appellees.

No. 43308.

Supreme Court of Kansas.

July 10, 1963.

Rehearing Denied Aug. 9, 1963.

Syllabus by the Court

The record in an action contesting the special election to remove the county seat of Logan County from Russell Springs to the city of Oakley, is examined and, as more fully set forth in the opinion, it is held: the district court did not err in overruling the plaintiffs' motion for a new trial, or in entering judgment ordering the county seat removed to the city of Oakley, based upon its findings that the total 'yes' votes exceeded the required vote of threefifths of the legal electors of the county (G.S.1949, 19-1602) by 2.4 votes, or in taxing one-half of the costs to the defendant board of commissioners.

James W. Wallace, Scott City, argued the cause, and V. E. Artley, Russell Springs, and D. B. Lang, Scott City, were with him on the briefs, for appellants.

Corwin C. Spencer, Oakley, argued the cause, and C. A. Spencer, J. H. Jenson and Harry B. Phelps, Oakley, were with him on the briefs, for appellees.

FATZER, Justice.

This was an action to perpetually enjoin the defendants from removing the respective offices of the county seat of Logan County, Kansas, from Russell Springs to the city of Oakley. The action was brought by two plaintiffs who were electors and taxpayers of Logan County, 'on their own behalf, and on behalf of other electors of Logan County, Kansas, in the same situation.' The defendants were the Board of County Commissioners and seven other county officials. A temporary injunction was issued on November 16, 1960, enjoining the defendants from removing the county seat, and was dissolved on July 11, 1962, when judgment was entered in their favor that the county seat be removed to the city of Oakley. As hereafter noted, both parties have appealed.

This case was previously before this court in Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P.2d 138 (opinion filed April 7, 1962). That appeal was from an order overruling the plaintiffs' motion for judgment on the pleadings, and was dismissed upon the grounds that the appeal was not from a 'final order' since issues of fact material to the disposition of the lawsuit were joined in the pleadings. One question raised in the present appeal was discussed and decided in the former opinion as hereafter noted.

No useful purpose would be served by reciting the many allegations of the various pleadings that have been filed. It is sufficient to say that since Logan County's organization (G.S.1949, 18-155, 18-155a) the county seat has been located at Russell Springs and that the order of removal was made subsequent to a special election held on October 18, 1960, and conducted pursuant to the provisions of G.S.1949, 19-1601 through 19-1630, inclusive, which require the vote of three-fifths or 60 percent of the legal electors to relocate the county seat and to remove it from its present location to the city of Oakley.

The pertinent proceedings preliminary to calling the election, the notices and holding of the election, and the result of the election, are summarized: The regular meeting day of the Board of County Commissioners is the first Monday of the month. (G.S.1949, 19-206.) September 5, the first Monday in September, 1960, was Labor Day which is declared by statute to be a legal holiday. (G.S.1949, 35-102.) The following day, September 6, two of the three commissioners, Claude M. Fulton and Jacob Uhrich, met with the county clerk in regular meeting to determine the number of legal electors whose names appeared on the last assessment rolls of the several township and city assessors of Logan County (G.S.1949, 19-1604.) One of the commissioners, G. H. Newcom, was absent because of illness. It was determined there were 2177 legal electors whose names were on the last assessment rolls and appeared on what was called the 'master' list. Minutes were kept of the meeting.

The next day, September 7, the board convened with Fulton and Uhrich present. Newcom submitted his resignation from the board which was accepted and the two remaining commissioners and the county clerk appointed Roy Kronvall to the board to replace Newcom. (G.S.1949, 19-203.) A petition calling for an election to relocate the county seat was presented and considered and the board determined that the petition bore the signatures of 1542 legal electors of Logan County whose names appeared on the last assessment rolls; that 62 of the signers to the petition had on that date requested their names be removed therefrom, leaving 1480 legal electors who were qualified to sign the petition and that such number was more than two-thirds of the 2177 legal electors of the county and was sufficient to call an election for the purpose stated pursuant to G.S.1949, 19-1602 and 19-1604.

On September 12, 1960, the board fixed October 18, 1960, as the date of the special election to be held at the usual voting places at each of the election precincts in the county. Notice of the special election was published by the county clerk proclaiming that such election would be held at the usual voting places at each of the election precincts of Logan County.

'* * * for the purpose of determining the question of the relocation of the County Seat of Logan County, Kansas, by removing the County Seat from Russell Springs, its present location, to the townsite of Oakley in Logan County * * *.'

It further recited that the polls would be open in each of the precincts between the hours of 8:00 a. m. and 6:00 p. m.

Prior to the special election the usual voting places in Oakley township precinct No. 1 was the township hall and the usual voting place in Russell Springs township was the school. Five days before the special election the county clerk published a second notice which stated that the polling place in Oakley township precinct No. 1 would be the city hall and that the polling place in Russell Springs would be the community center. No other notice of election was published.

Thereafter, boards of registry were duly appointed and registry lists were prepared of all legal electors in each voting precinct as provided in G.S.1949, 19-1613 through 1630, inclusive.

On October 18, 1960, the special election was held and the printed ballots furnished the electors stated the proposition to be voted upon as follows:

'Shall the County Seat of Logan County, Kansas, be removed to the City of Oakley, Kansas?'

On October 22, 1960, the result of the election was canvassed by the board of commissioners and it was determined that 1441 votes had been cast in favor of the proposition, 783 votes had been cast against the proposition, and 22 votes had been voided and not counted. The number of electors appearing on the various registry lists were totaled and found to be 2409. Standing thusly, the proposition was short the required 60 percent by 4.4 votes. The board then proceeded to canvass the list of qualified electors as prepared by the board of registry at each of the voting precincts to determine the number of legal electors against which to apply the number of 'yes' votes to determine whether three-fifths of the legal electors had voted in favor of the proposition submitted. This was accomplished by the board by adding all the names on the various registry lists, and to that total adding the number of electors who had qualified and voted by affidavit pursuant to G.S.1949, 19-1619, and deducting from the grand total the number of persons whose names appeared on the registry lists but who were known to the county commissioners not to possess the qualifications of legal electors on the date of the election. Accordingly, the names of eleven electors were subtracted from the registry lists for the reason that such persons were either minors, insane, aliens or nonresidents of the county. The board then determined that on the date of the election there were 2398 legal electors of the county entitled to vote, that more than three-fifths of the legal electors had voted in favor of the proposition to relocate the county seat, and it proclaimed the city of Oakley to be the county seat of Logan County.

By direction of G.S.1949, 19-1609, the county officers were required within twenty days thereafter to remove the county records to the county seat. To prevent this, the plaintiffs filed this action to enjoin the move challenging, among other things, the official composition of the Board of Commissioners and the validity of their acts as commissioners; the sufficiency of the petitions calling for the election; the sufficiency of the notice of election and the ballot; voting irregularities, and the elector status of persons named on four exhibits attached to the petition, summarized as follows: (1) the eleven names subtracted from the registry lists by the board when it canvassed the results of the election; (2) 58 alleged legal electors whose names did not appear on the registry lists and who did not qualify themselves to vote by affidavit as prescribed by G.S.1949, 19-1619; (3) fourteen persons who were alleged to not be legal electors but who signed the petition for calling the election, and (4) 37 persons alleged to be legal electors whose names appeared on the last assessment rolls and not considered in determining the sufficiency of the petition for calling the election.

The defendants' answer denied all of plaintiffs' allegations and alleged, among other things,

'* * * that the said election, the canvass thereof, the determination of the number of legal electors of Logan County, Kansas, on the date thereof, and the resulting proclamation of the results thereof were in all respects regular and in accordance with the law.'

Trial was to the court, which consumed some ten days. After a full hearing, where many witnesses for both sides...