The opinion of the court was delivered by
Valentine, J.:
We have already decided several questions involved in or connected with the controversy now set forth in this present action. On two occasions we delivered written opinions. (C. K. & W. Rld. Co. v. Evans, 41 Kas. 94; C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 id. 223.) On the other occasions we delivered only oral opinions, which have not been and will not be published. We now deliver another written opinion, although the decision of the question now presented cannot determine the case, nor be of much impartance in the case. The question arises upon a motion by the plaintiff to quash the third paragraph of the defendant’s answer to the alternative writ; and the question presented is, substantially, whether an election is valid where it was held in and by a county under the provisions of chapter 107 of the Laws of 1876, and the amendments thereto, including chapter 142 of the Laws of 1877, where the petition presented to the county [765]*765board asking such board to order the election was not the petition of two-fifths of the resident tax-payers of the county. The said third paragraph alleges that the aforesaid petition was not signed by and was not the petition of two-fifths of the resident tax-payers of the county as required by the statutes above cited, and the plaintiff moves to quash said third paragraph, upon the ground that it does not state facts sufficient to constitute any defense to the plaintiff's action, and virtually upon the ground that it makes no difference whether the petition was a petition of two-fifths of the resident tax-payers of the county, or not. The decision of this question is unimportant under the claims of the parties, respectively, for the following reasons: The plaintiff claims that the petition was a petition of at least two-fifths of the resident tax-payers of the county, and that such fact can be established by the evidence; while the defendants claim that even if such fact were established, still that the railroad company would not be entitled to the bonds which it demands, for the reason that the railroad company did not comply with the terms and conditions of the proposition submitted by the county board to the electors of the county at such election. Notwithstanding the fact that the question is unimportant, we shall nevertheless deliver our decision in writing.
[766]*766County bonds Hon-TOidpeU' 1 ’ [765]*765The plaintiff, the railroad company, desires to compel the defendants, the board of county commissioners and the county clerk of Chase county, to issue to the plaintiff the bonds of the county in the amount of $80,000, and it founds its right of action upon a certain election held in Chase county on November 16, 1886, under the provisions of chapter 107 of the Laws of 1876 and the amendments thereto, including chapter 142 of the Laws of 1877, and upon the subsequent acts of the parties in pursuance of such election; and the plaintiff, in the alternative writ, has set forth a prima fade cause of action. The defendants, however, in the third paragraph of their answer to this writ, allege that the election was void for the reason that the petition presented to the county board for the election was not a petition of two-fifths of the resident [766]*766tax-payers of the county as is required by the statutes above cited. The plaintiff moves to quash this third paragraph upon the ground that it does not set forth facts sufficient to constitute any defense to the plaintiff’s action. Upon the pleadings and the motion to quash it must be ° taken as an admitted fact that two-fifths of the resident tax-payers of Chase county did not petition for the aforesaid election. This certainly renders the election void, and also renders void everything founded upon the election, unless something has since transpired that would cure this defect in the petition or estop the defendants from urging the invalidity of the petition and of the election. Of course if anything of such a character has since transpired, it devolves upon the party that is benefited thereby to show it. In other words, if anything has transpired that would cure the defective petition or render the election valid, or estop the county of Chase or the officers thereof from claiming that the election is void, it devolves upon the plaintiff in this action to show such thing. The plaintiff, however, for this purpose may use all the admissions made by the defendants in their answer to the alternative writ. The admissions of the defendants, beneficial to the plaintiff and contained in their answer, seem to be substantially as follows: They admit that the railroad company is and was a duly-organized railroad corporation, with power to build its railroad as contemplated by the terms and conditions of the proposition submitted to the electors of Chase county. It admits that a petition was presented to the board of county commissioners for the election, defective only in not containing the names, and in not being the petition of two-fifths of the resident tax-payers of the county. It admits that the county board examined the petition, and declared it to be sufficient and to be the petition of two-fifths of the resident tax-payers of Chase county; that upon such petition the election was ordered, was held, the returns thereof canvassed, the result declared in favor of the subscription for the stock and in favor of the issuing of the bonds, and that the county board ordered such [767]*767subscription, and that the county clerk made the subscription; but this, we think, is as far as the admissions extend. How many votes were cast at the election, we cannot know. Whether two-fifths of the legal voters of Chase county voted for the bonds, or not, we cannot know; but even if two-fifths of the legal voters of Chase county did so vote, it is not shown that they or any portion of them were resident tax-payers of the county. From anything appearing in the case, those of the resident tax-payers who voted may have all voted against the bonds, and only such persons as were not tax-payers may have voted for them. Besides, many of the resident tax-payers of Chase county may not have voted at all. Indeed, many of them may not have had any right to vote, for many of them may have been women, or minors, or other persons, who had no right to vote at such election. Evidently the legislature intended that no bonds should be issued to a railroad company in payment for the stock of the company, unless at least two-fifths of the resident tax-payers of the county should first express a willingness that the same might be done; and this expression of willingness should be given before the calling of the election and as a foundation for the election. Whether the consent of two-fifths of the resident tax-payers of the county that the bonds might be issued can be shown in any other manner than that they petitioned for the election for that purpose, as that they voted for the bonds at the election, or that they acquiesced in the vote afterward, or that by some act or want of action they ratified the election or the subscription, or estopped themselves from claiming that the election or the subscription was invalid, need not be decided in this case, for nothing has been shown in this case that would tend to show that two-fifths of the resident tax-payers of the county have ever in any manner consented that the bonds should be issued. And nothing has been shown in this ease that would constitute a ratification on the part of, or an estoppel against, the county as a quasi
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The opinion of the court was delivered by
Valentine, J.:
We have already decided several questions involved in or connected with the controversy now set forth in this present action. On two occasions we delivered written opinions. (C. K. & W. Rld. Co. v. Evans, 41 Kas. 94; C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 id. 223.) On the other occasions we delivered only oral opinions, which have not been and will not be published. We now deliver another written opinion, although the decision of the question now presented cannot determine the case, nor be of much impartance in the case. The question arises upon a motion by the plaintiff to quash the third paragraph of the defendant’s answer to the alternative writ; and the question presented is, substantially, whether an election is valid where it was held in and by a county under the provisions of chapter 107 of the Laws of 1876, and the amendments thereto, including chapter 142 of the Laws of 1877, where the petition presented to the county [765]*765board asking such board to order the election was not the petition of two-fifths of the resident tax-payers of the county. The said third paragraph alleges that the aforesaid petition was not signed by and was not the petition of two-fifths of the resident tax-payers of the county as required by the statutes above cited, and the plaintiff moves to quash said third paragraph, upon the ground that it does not state facts sufficient to constitute any defense to the plaintiff's action, and virtually upon the ground that it makes no difference whether the petition was a petition of two-fifths of the resident tax-payers of the county, or not. The decision of this question is unimportant under the claims of the parties, respectively, for the following reasons: The plaintiff claims that the petition was a petition of at least two-fifths of the resident tax-payers of the county, and that such fact can be established by the evidence; while the defendants claim that even if such fact were established, still that the railroad company would not be entitled to the bonds which it demands, for the reason that the railroad company did not comply with the terms and conditions of the proposition submitted by the county board to the electors of the county at such election. Notwithstanding the fact that the question is unimportant, we shall nevertheless deliver our decision in writing.
[766]*766County bonds Hon-TOidpeU' 1 ’ [765]*765The plaintiff, the railroad company, desires to compel the defendants, the board of county commissioners and the county clerk of Chase county, to issue to the plaintiff the bonds of the county in the amount of $80,000, and it founds its right of action upon a certain election held in Chase county on November 16, 1886, under the provisions of chapter 107 of the Laws of 1876 and the amendments thereto, including chapter 142 of the Laws of 1877, and upon the subsequent acts of the parties in pursuance of such election; and the plaintiff, in the alternative writ, has set forth a prima fade cause of action. The defendants, however, in the third paragraph of their answer to this writ, allege that the election was void for the reason that the petition presented to the county board for the election was not a petition of two-fifths of the resident [766]*766tax-payers of the county as is required by the statutes above cited. The plaintiff moves to quash this third paragraph upon the ground that it does not set forth facts sufficient to constitute any defense to the plaintiff’s action. Upon the pleadings and the motion to quash it must be ° taken as an admitted fact that two-fifths of the resident tax-payers of Chase county did not petition for the aforesaid election. This certainly renders the election void, and also renders void everything founded upon the election, unless something has since transpired that would cure this defect in the petition or estop the defendants from urging the invalidity of the petition and of the election. Of course if anything of such a character has since transpired, it devolves upon the party that is benefited thereby to show it. In other words, if anything has transpired that would cure the defective petition or render the election valid, or estop the county of Chase or the officers thereof from claiming that the election is void, it devolves upon the plaintiff in this action to show such thing. The plaintiff, however, for this purpose may use all the admissions made by the defendants in their answer to the alternative writ. The admissions of the defendants, beneficial to the plaintiff and contained in their answer, seem to be substantially as follows: They admit that the railroad company is and was a duly-organized railroad corporation, with power to build its railroad as contemplated by the terms and conditions of the proposition submitted to the electors of Chase county. It admits that a petition was presented to the board of county commissioners for the election, defective only in not containing the names, and in not being the petition of two-fifths of the resident tax-payers of the county. It admits that the county board examined the petition, and declared it to be sufficient and to be the petition of two-fifths of the resident tax-payers of Chase county; that upon such petition the election was ordered, was held, the returns thereof canvassed, the result declared in favor of the subscription for the stock and in favor of the issuing of the bonds, and that the county board ordered such [767]*767subscription, and that the county clerk made the subscription; but this, we think, is as far as the admissions extend. How many votes were cast at the election, we cannot know. Whether two-fifths of the legal voters of Chase county voted for the bonds, or not, we cannot know; but even if two-fifths of the legal voters of Chase county did so vote, it is not shown that they or any portion of them were resident tax-payers of the county. From anything appearing in the case, those of the resident tax-payers who voted may have all voted against the bonds, and only such persons as were not tax-payers may have voted for them. Besides, many of the resident tax-payers of Chase county may not have voted at all. Indeed, many of them may not have had any right to vote, for many of them may have been women, or minors, or other persons, who had no right to vote at such election. Evidently the legislature intended that no bonds should be issued to a railroad company in payment for the stock of the company, unless at least two-fifths of the resident tax-payers of the county should first express a willingness that the same might be done; and this expression of willingness should be given before the calling of the election and as a foundation for the election. Whether the consent of two-fifths of the resident tax-payers of the county that the bonds might be issued can be shown in any other manner than that they petitioned for the election for that purpose, as that they voted for the bonds at the election, or that they acquiesced in the vote afterward, or that by some act or want of action they ratified the election or the subscription, or estopped themselves from claiming that the election or the subscription was invalid, need not be decided in this case, for nothing has been shown in this case that would tend to show that two-fifths of the resident tax-payers of the county have ever in any manner consented that the bonds should be issued. And nothing has been shown in this ease that would constitute a ratification on the part of, or an estoppel against, the county as a quasi corporation, or otherwise, or its officers or the inhabitants of the county. All the allegations of the alternative writ are denied, except such as are expressly ad[768]*768mitted by the answer, and the answer among other things alleges that the railroad company never accepted the terms and conditions upon which the bonds were voted to be issued; that it never complied with such terms and conditions; that it did not build its railroad upon the faith of that election or of the subscription; that it did not build its railroad on or before June 1, 1887, as it was required to do by the terms and conditions of the proposition voted upon at that election, and indeed it is alleged that the railroad company never built the railroad that was contemplated by the election and subscription at all.
The motion to quash the third paragraph of the defendants’ answer and return will be overruled.
All the Justices concurring.