County-Seat of Linn County

15 Kan. 500

Opinion

The opinion of the court was delivered by

Brewer, J.:

Two questions were presented and discussed by counsel in the argument of this case. First: Where a petition for the relocation of a county-seat has been presented to the county commissioners, and acted on by them, an election ■ordered, two elections had, the first not resulting in a majority for any place, the votes canvassed, and the place receiving the majority of the votes at the second election declared the county-seat, will the court inquire into the sufficiency of the petition, and hear testimony to show that some of the names thereon were improperly there, and that therefore it did not contain the requisite number of petitioners? Second: If a majority of the votes actually cast at a county-seat election are in favor of one place, and it is declared the county-seat, will the court under our statutes receive any other evidence to show that the number of legal voters in the county exceeded the number of votes cast, and inquire whether the place declared the chosen county-seat actually received the expressed consent of a majority of the electors. Both of these questions were argued with great ability by the respective counsel, and are of no little difficulty. But after a careful consideration we are constrained to answer both in the negative.

In reference to the first question it may be remarked, that the manner of contesting county-seat elections, and the extent to which the courts may go in such contests, is regulated by statute. There is in the nature of things no absolute necessity for a petition of any kind. The legislature may authorize the commissioners, without any petition, and upon their own motion, to submit to the people the question of a change • in the county-seat. Or, requiring a petition, it may specify the kind of petition, the number of signers, etc. It may leave the action of the commissioners open to investigation in the courts, or it may make their determination conclusive as to the sufficiency of the petition. Now, in the winter of 1871, in the case of The State, ex rel., v. Stockwell, 7 Kas. 98, construing.the statute of 1869, (Laws of 1869, ch. 27, p. 101,) we held that under .the authority therein given we cou’ld inquire into any of the preliminary matters — that any matter of substance enjoined by law, and omitted, or improperly done, could be shown for the purpose of invalidating the election. There was no restriction in the statute, and the right was given to “contest the validity of the vote.” And this as we held was broad enough to include all prior proceedings. The law of 1871, while making many changes, made, in this respect, only a verbal change. It provided that “ the validity of the election * * * shall be tried and determined.” (Laws of 1871, p. 193, §7.) But the subsequent legislature, that of 1872, amended by adding this proviso: “Provided, however, that in no case shall the validity of any election be inquired into beyond the one last had, and upon which the proceeding is based.” (Laws of 1872, p. 271, § 1.) Now, by this proviso the legislature plainly intended some restriction on the limits of inquiry in such contests. Coming at the session after the decision of this court construing the statute, it is not unreasonable to suppose that it was made with reference thereto, and was intended to cut off some portion of the broad field of inquiry to which that decision opened.. It meant to say, that when a contest was made, some things should be considered final, and not open to attack. It says, that only the validity of the last election, the one upon which the proceeding is based, shall be inquired into. Now the only case in which the law contemplates two elections is, in the relocation of county-seats. Does it not plainly follow, that when the two elections have been held, it means to forbid inquiry into the validity of the first? that the courts were bound to accept the prior election, and consequently the proceedings upon which it was based, as valid and regular, and could only inquire whether the last election was legally conducted, and the actual result of the voting legally ascertained and declared? Counsel, to obviate the force of this argument, contend that the term “ election ” does not properly apply to the separate days’ voting — that there is no “election” till a result is reached, and some place has received the requisite majority — that in the word is involved the idea of ehoice, and selection, and that there is no choice or selection until some place is chosen or selected. Counsel may be technically correct in his definition; but the legislature has in the very statute used the word in a different sense. It speaks of the first day’s voting as an “ election,” and says that, if at that election no place receives a majority, a second “election” shall be had. And such is a common use of the term. Now when the legislature has used a word in a statute in one sense, and with one meaning, when it subsequently uses the same word in legislation respecting the same subject-matter, it will be understood to have used it in the same sense, unless there be something in the context, or the nature of things, to indicate that it intended a different meaning thereby. The courts may not give it a different meaning to sustain their views of what the law ought to be. They must seek simply to ascertain the legislative intent, and then enforce it. We conclude therefore that we cannot now inquire into the sufficiency of the signatures to the petition. (Light v. The State, ex rel., 14 Kas. 489, 493.)

The second question is even more difficult. The constitution, art. 9, § 1, reads: “No county-seat shall be changed without the consent of. a majority of the electors of the county.” If there are three thousand electors in a county, and only thirteen hundred vote in favor of the change, by .what right can the legislature override the constitution, and say that the change may be made without the express consent of the majority? We do not doubt the restricting power of the constitutional provision; and whenever by any of the ordinary or prescribed means of ascertaining the fact, it appeal’s that a majority of the electors have not consented to the change, no change can be had. The question is not as to the effect of 'a fact, but the means of ascertaining it, the evidence to be received. Within certain limits the legislature has power to prescribe what shall be evidence,'prima facie,^or conclusive, of any fact. It may say that a tax-deed shall he prima facie evidence of the regularity of all the prior proceedings; that a judgment, or an award, shall be conclusive evidence of the amount due from the defendant. And when this evidence, which the legislature has prescribed, is produced, the courts must accept the fact as established. In this case, the legislature has said that the place receiving a majority of the votes cast, shall become the county-seat — thus making the numbei of votes cast the evidence of the number of electors. Doubt less the legislature might make other things evidence of this fact. It might require, as preliminary to every election, a registration, and make that registration the evidence. We do not mean that it may, by the mere machinery of rules of evidence, override or set at naught the restrictions of the constitution, or that it could arbitrarily make conclusive evidence of the number of voters, any list, or roll, which in the nature of things has no connection with that fact, and does not reasonably tend to prove it. But when it adopts as conclusive evidence of the fact anything which, according to the ordinary rules of human experience, reasonably tends to prove the fact, the courts are not at liberty to ignore or go behind such evidence. Now it is not merely the privilege, but it is the duty of every elector to vote. It is one of the obligations of citizenship. True, as a matter of fact every elector may not vote. So too every elector may not be registered. Yet there is a reasonable connection between either the number of votes cast, or the registration-list, and the number of electors, sufficient to justify the legislature in declaring that either of the former shall be deemed conclusive evidence of the latter. If it were not so, then that finality which in the best interests of society is often as important as mere certainty, might be fearfully endangered. If the legislature could not establish any such easily-ascerta.inable and convenient evidence of the fact, but the inquiry must always go to the actual number of persons in the county on the day of election having the legal qualification of electors, it is patent that at least in the larger and more densely populated counties an investigation might be opened, the cost and time of which would be simply immense. The injury which would result to the community from the suspense and delay of such an investigation, far exceeds that which flows from the possibility that there were enough voters who did not vote, or were not registered, to have changed the result. While the constitution must be accepted as the binding law, yet it must be construed in the light of common customs and accepted facts. And the three ordinary and recognized modes of ascertaining the number of electors, are, the census, a registration, and the actual voting. Neither of them may, in any given case, be exactly correct. Yet how little of testimony points with unerring certainty to the ultimate fact. Almost every kind of evidence is liable to come short of absolute exactness. Yet with these, as the ordinary evidences of the number of electors, if the constitution sought to compel a resort to other and more difficult, if more accurate evidence, it would seem as though such testimony ought to have been indicated. It provided for both a census, and a registration. Const., art. 2, § 26; art. 5, § 4. Is it unreasonable to suppose that it contemplated thereby all the uses to which they were ordinarily, and might reasonably be put, and among them that of furnishing the evidence of the number of electors? True, the legislature has in this respect failed to avail itself of either of these two kinds of testimony. But is it thereby restricted from falling back upon that testimony which, in the absence of census and registration, is the ordinarily-accepted evidence of the number of electors, to-wit, the number of votes cast? It is a general rule, in respect to elections, that where the number of the electoral body is fixed, as in case of the directors, or members of a corporation, or a legislature, there a majority means a majority-of the whole body. But where the electoral body is indefinite in numbers, as in ordinary popular elections, there a majority means a majority of the votes actually cast. But it is said, that the framers of the constitution evidently had this general rule in mind, and made special provisions for the several elections. Thus, for the passage of any bill or joint resolution, “a majority of all the members elected to each house voting in the affirmative,” is necessary: Const., art. 2, § 13. To authorize the contraction of certain indebtedness, the proposed law must “be ratified by a majority of all the votes cast, at such general election:” Art. 11, §6. To adopt amendments to the constitution requires only “a majority of the electors voting on said amendments:” Art. 14, § 1. Having been so precise in these matters, must it not be held that they intended to be equally precise in forbidding the change of a county-seat without the consent of a majority of the electors? There is doubtless great force in this argument. But the objection to it is, that it simply brings us to the point of greatest difficulty, and that is, the determination of what evidence shall be accepted as conclusive of the fact. It must be noticed, that the vote of a majority is not necessary, nor even the formality of an election. The consent of a majority of the electors, in whatever form expressed, whether in election, or by petition, or otherwise, is sufficient. May it not be said, Avith great force, as it is often said in reference to ordinary popular elections, that those not voting consent to the action of those voting? Suppose that the matter was thrown open to full investigation, and an inquiry made as to the actual number of electors present in the county on the day of elections : would it be other than carrying out the strict letter of the constitution to inquire as to each elector not voting AArhether he consented to the change, and if the same proportion ran through the non-voting as the voting electors, to uphold and enforce the already-declared result? And yet, the mere statement of such a range of inquiry carries its own refutation. It seems to us therefore, that Avhere the legislature has proAdded an election as the means of ascertaining the Avi.shes of the electors of a county in reference to a change of the county-seat, and has made no provision for a registration, and has designated no other list or roll as the evidence of the number of electors, it may, under the constitutional provision quoted, declare that the place receiving a majority of the votes cast, shall be the county-seat. As these county-seat elections cannot be held on the days of general elections, these considerations do not apply to cases Avhere two or more questions are submitted at the same election, and more votes are cast upon one question than upon another, for there the highest number of votes cast upon any one question is clear evidence of the number of voters, which may not, in view of any such constitutional restriction as above quoted, be disregarded in any contest arising as to the decision of the other questions. Nor perhaps do they apply to cases where two elections are held so near together in time, that the courts may fairly say that the difference between the number of votes cast upon the two elections cannot reasonably be accounted for upon the theory of a change in the,number of electors. In the consideration of this question we have examined carefully the following cases, some sqggested by counsel in this case, others cited by counsel in a case of contested county-seat election, from Osage county, and others not cited by either: Taylor v. Taylor, 10 Minn. 107; The People, ex rel., v. Warfield, 20 Ill. 159; L. & U. Rld. Co. v. County C. H. Davidson Co., 1 Sneed, 691; State v. Winkelmeier, 35 Mo. 103; State, ex rel., v. Mayor St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450; State v. Sutterfield, 54 Mo. 391; Gillespie v. Palmer, 20 Wis. 544; Chester & L. N. G. Rld. Co. v. Comm’rs Caldwell Co., 72 N. C. 486; Hawkins v. Supervisors Carroll Co., 50 Miss. 735.

But it is said by counsel, that in the 4th section of the act relating to the removal of county-seats, (ch. 26, Gen. Stat. 247,) the legislature has provided that, “for the purpose of this act, the number of legal electors in the county shall be ascertained from the last assessment-rolls of the several township assessors in the county;” and that this makes another list the evidence of the number of electors, and that, as alleged, according to such list, the requisite majority was not obtained. The only “assessment-roll” prepared by township assessors required or authorized at the time of the passage of this county-seat act was that of personal property, on which the assessor was required to place a list of the persons, companies or corporations, in whose names the personal property was listed. (Gen. Stat. 1040, § 61.) Now it was not claimed by counsel that according to this, roll the number of votes cast was less than the number of voters; but the roll to which he refers was that required by ch. 86 of the Gen. Stat., “An act for the registration of adults.” But the objection to that is, that that registration-list is in no particular within the description of the roll specified in said § 4. It is not, or at least was not at the time of the passage of the county-seat act, a roll prepared by the township assessors, but one prepared by the county assessor. It is in no sense an “assessment-roll,” but a registration-list. It is not therefore within the letter of the statute; and there was at the time an assessment-roll prepared by the township assessors, as above indicated, which was within the letter. Nor is it within the spirit; for this registration list is not of electors,, but of “adults, over twenty-one years of age.” It includes both sexes, aliens, convicts, and other non-electors, as well as the electors; and no discrimination or distinction is called for. So that there is no means of ascertaining from this list the exact number of electors, and no greater probability of exactness, than is furnished by the returns of votes cast. And to make such registration - list conclusive in the matter of the voting, as well as to the number of petitioners, is in plain disregard of the express direction of the legislature, that a majority of the votes cast shall decide.

These questions arise on a motion to-quash an alternative writ of mandamus, and the motion to quash must be sustained.

All the Justices concurring.