Johnson v. Commissioners

34 Kan. 670

• Court: Supreme Court of Kansas
• Decided: January 15, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The plaintiff, in his action now pending, seeks to contest the election of September 7, 1885, held in Wilson county on the proposition to issue $30,000 of bonds of that county for the purpose of erecting permanent county buildings in the city of Fredonia, upon two grounds: First,' that there were illegal and fraudulent votes enough cast in favor of the proposition, to change the result; second, that the election itself was illegal and invalid, not being called or conducted in compliance with any law; and that no legal notice thereof was given. It is insisted on the part of plaintiff, that where an action is commenced under the provisions of §§112 and 116 of chapter 36, Comp. Laws of 1879, to restrain cthe officers of any county from executing, issuing or delivering bonds, a temporary injunction should be granted as a matter of right on the filing of a verified petition, and in any event that the elector bringing his action to contest the election should be required to make only a prima facie caseto entitle him to a temporary injunction. In support of this, counsel say:

“When the plaintiff in such a case has shown that there is a bona fide controversy, the court ought to grant a temporary injunction to preserve the existing status until by the aid of compulsory process and the instrumentality of oral examinations and cross-examinations the truth may be ascertained. To attempt to determine the facts and deny a temporary injunction upon conflicting affidavits, would nullify the statute and render it entirely practical to conceal the fraudulent votes by use of fraudulent affidavits; that if the district court refuses a preliminary injunction, the action to contest the election is practically disposed of and brought to an end, because the final judgment in the case can only be a perpetual injunction against issuing the bonds, and no court would go through the idle and empty ceremony of investigating a case where the final judgment must necessarily be wholly fruitless and ineffectual, not only to prevent the mischief sought to be prevented, but inoperative for any purpose whatever.”

Said § 112 reads:

“Whenever any elector or electors of any county, township, or municipal corporation in this state, shall consider himself or themselves aggrieved by the result of any election hereafter held for removing, locating, establishing, or re-locating, the county seat of such county, or upon the question of issuing the bonds or loaning the credit of said county, township or municipal corporation, or for the sale or transfer of any stock or other property owned or held by said county, township or municipal corporation, as said result may have been or shall be declared by the proper board of canvassers, or, if any such elector or electors shall consider himself or themselves aggrieved by the failure or refusal of any board of canvassers to canvass the votes returned from any precinct or precincts, as having been cast at any election held for any or either of the purposes hereinbefore named, such election may be contested in the district court of the proper county, as hereinafter provided.”

Section 116 provides:

“Whenever, after any election held for any purpose mentioned in the first section of this act, the board of canvassers shall declare any town, city or place to have received a majority of the votes cast for the county seat, or that any question or proposition voted upon at such election to have been adopted, any elector or electors of the proper county, township or municipal corporation, who may be aggrieved thereby, may commence an action in the district court of the proper county to perpetually enjoin any county officer from moving his office to the city, township or place so by said board declared to be the county seat, or to enjoin and restrain the proper officer or officers of such county, township or municipal corporation, from executing, issuing or delivering any bond or bonds, certificate or certificates, evidencing or importing any debt or liability, or promise to pay, of such county, township or municipal corporation, or from subscribing any stock for, or from loaning the credit of such county, township or municipal corporation, or from selling or transferring any stock or other property of such county, township or municipal corporation.”

And § 117 further provides:

“In all actions of injunction brought under the provisions of this act, the practice, pleadings and proceedings shall be in accordance with the rules prescribed in article twelve of the code of civil procedure, so far as the same may be applicable; but no preliminary or temporary injunction shall be allowed or granted by other than the district court or the judge thereof : Provided, however, that in case of the absence of said judge from his district, or his illness, or inability to act, any other district judge in the state, or the chief justice, or any associate justice of the supreme court, may grant a temporary injunction in like manner, and with the same force and effect and none other, as temporary injunctions granted by the judge of the proper district court.”

i preliminary not™matter of strict right.

„ 2. Preliminary ivSngraStTa, when not. Neither within these provisions, nor the provisions of the C0CH ean we say that a preliminary injunction is a matter of strict right. The granting or re-n r? , . . . íusmg oí a temporary or preliminary injunction rests largely in the sound judicial discretion of the court or judge to whom the application is made. (Stoddart v. Vanlaningham, 14 Kas. 18; Akin v. Davis, 14 id. 143; Conley v. Fleming, 14 id. 381; Olmstead v. Koester, 14 id. 463.) In such a case as this, if the court or judge to whom the application is made for the preliminary injunction is satisfied that there is a bona fide controversy over the question whether the proposition to issue bonds has been canned, and sufficient 3 votes cast in favor of the proposition are seriously challenged to change the result, and upon the hearing of the application there is great conflict in the affidavits offered, it would be best for the court or judge, as a general rule, to grant the temporary injunction so that the real facts of the case may be ascertained on the final hearing, upon oral or other competent evidence. The truth of a petition cannot be very satisfactorily determined upon conflicting affidavits. These often consist merely of conclusions and statements of the most general character, and a cross-examination before a judge or court of the witnesses making the affidavits may disclose a very different state of facts. 'Very much, however, must rest in the discretion of the court or judge hearing the application for the preliminary injunction. Unless that discretion is abused, the refusal to grant a temporary or preliminary ini unction will not be interfered with. (Wood v. Millspauqh, 15 Kas. 14.)

We cannot assent to the view that a refusal of a preliminary injunction practically disposes of the case. To permit the bonds to be issued before the questions of fact alleged in the petition are finally determined, may complicate matters, but the refusal to grant the preliminary injunction will not necessarily cause any dismissal of the case, nor prevent a full investigation of the charges made concerning the illegal and fraudulent voteg. Of course the district court will grant a speedy trial, and even if the bonds are negotiated, the money derived therefrom cannot be used for the construction of permanent county buildings in Wilson county, or for any like purpose, if it be finally adjudged that the legal votes cast at the election of September 7th were against the proposition submitted. Where officers have no legal power to act, they cannot plead good ■ faith after they have acted. (The State v. Harrison, 24 Kas. 268.)

As all the charges concerning illegal votes must be further and more fully investigated upon the final hearing of the case, we need only say at this time that upon the evidence presented on the application for the temporary injunction, there was no abuse of judicial discretion in the district court in refusing the injunction. Whether the charges of illegal voting shall be finally decided in favor of the plaintiff or in favor of the defendants, after a full and fair trial, we are not prepared to say. The evidence hereafter to be presented must determine.

To establish that the election of September 7, 1885, was invalid, §18, ch. 25, Comp. Laws of 1879, is cited. This section reads:

“ No board of county commissioners shall proceed to build any permanent county buildings, and assess any tax for that purpose, without first submitting the question to a vote of the electors of the county at some general or special election; and said election shall be governed by, and the returns thereof made in accordance with, the laws governing the elections of county officers. The ballots used at said election shall be written or printed — ‘For the erection of public buildings/ ‘Against the erection of public buildings/ ”

The contention of plaintiff, is that under the provisions of said section the county commissioners have no power to submit to the electors of the county the question of raising any 'money by loan to build permanent county buildings until they have first submitted to the electors of the county the distinct and independent proposition of the erection of permanent county buildings; that the ballots voted at said election must be written or printed — “For the erection of public buildings,” or “Against the erection of public buildings,” and that no permanent county buildings can be .so erected until the electors have decided in favor thereof by their ballots cast “For the erection of public buildings.” If § 18 were the only provision of the statutes relating to the erection of permanent county buildings, the claim of the plaintiff would undoubtedly be correct; but §16, ch. 25, provides that—

“The board of county commissioners of each county shall have power, at any meeting, . . . Fourth. [ To ] apportion and order the levying of taxes as provided by law, and to borrow, upon the credit of the county, a sum sufficient for the erection of county buildings, or to meet the current expenses of the county, in case of a deficit in the county revenue.”

And §17 provides:

“The board of county commissioners shall not borrow money for the purposes, specified in the fourth subdivision of the preceding section, without first having submitted the question of such loan to a vote of the electors of the county.”

Section 19 also provides:

“Whenever it shall become necessary, under the provisions of this act, to submit to a vote of the electors of any county the question of raising any sum of money by loan, the said board, after having determined the sum necessary to be raised, shall cause notice of such determination, and the time when the question will be submitted to the electors of such county, by written or printed hand-bills, posted up in five of the most public places in each township for at least thirty days previous to the time fixed for the taking of such vote.”

And § 20 further provides:

“At the time specified in such notice, a vote of the electors of such county shall be taken in each of the townships in such county, at the place designated in the notice. The inspectors receiving the votes shall be the same as required at the general election,.and the vote shall be canvassed by the same officers, and in the same manner as required at such general election, and the result of' such vote shall be certified by them, and transmitted to the county clerk within ten days after such vote shall be taken, which certified statement shall be delivered by such' clerk to the board of commissioners at their next meeting. All voting in the several townships, as provided in this section, shall be by ballot; and those voting in favor of such proposed loan shall have written or printed on their ballots, ‘For the loan;’ and those voting against the loan shall have written or printed on their ballots, ‘Against the loan;’ and if a majority of the votes cast at such election be against the loan, it shall not be made.”

3. County board; rowmoney°tó nent cmmty" bmidmgs. Considering these various sections, we think the construction given by the district court reasonable and proper, viz.: that the legislature intended to authorize the ° boards of county commissioners in this state to submit to the electors of their respective counties either one 0f two distinct and-different methods of raising funds wherewith to erect permanent county buildings; that §18 provides for a system of direct and immediate taxation for the construction of permanent county buildings, after a favorable vote of the electors therefor; and that the fourth subdivision of § 18, supplemented by the provisions of §§17, 19 and 20, contemplates the raising of a sum sufficient for the erection of county buildings by issuing and negotiating bonds, if the electors of the county vote in favor of a loan for that purpose. (See also §210, ch. 25, Comp. Laws of 1879.)

If the construction contended for on the part of plaintiff be sustained, then two elections are necessary before the board of county commissioners can proceed to build any permanent county buildings. This certainly would be useless and accomplish no good purpose. Counsel for plaintiff suggest, however, that this construction of the statute leaves it in the power of the commissioners to erect permanent buildings, without any consultation \vith the people, if there exists a surplus fund in the county treasury. This is not so. (The State v. Comm’rs of Marion Co., 21 Kas. 419; The State v. Harrison, supra.) Counsel for plaintiff further suggest that under this construction of the statute, after an election has been held under § 18 and a majority of the ballots “ For the erection of public buildings” has been cast, the commissioners may proceed to expend as much as they please in constructing county buildings. We do not assent to this conclusion. If a vote be ordered for a direct and immediate taxation to build county buildings, under §18 the board of county commissioners submitting the question must necessarily state the cost of the county buildings proposed to be built, or the total amount of tax proposed to be assessed therefor. The amount to be expended must be stated in submitting the question, and upon this the electors vote. If they are in favor of expending the amount named for permanent county buildings and assessing a tax therefor, they will vote “For the erection of public buildings;” if opposed to the question, they will vote “Against the erection of public buildings.” .

Counsel for plaintiff still further suggest, that if county buildings can be erected upon a vote of the electors for the loan of money therefor, the election is invalid, because the commissioners did not determine, within the terms of said § 19, the sum necessary to be raised. A petition asking that such an election be called was presented to the commissioners on July 9, 1885, and on the same day an election was ordered to be held on August 8, 1885, for the purpose of voting upon the question of issuing the bonds of Wilson county in a sum not to exceed $30,000, for the purpose of erecting permanent county buildings in the public square in the city of Fredonia. On July 15, 1885, the time for holding the election was changed to September 7,1885, and it was recited in the order that the $30,000 of bonds of Wilson county were to build a court house and jail.

4' submitted to plication as While it would have been better if the county board had stated in the order that it had determined the sum necessary to be raised for the erection of the court house, and also the sum necessary for the jail, we think the order as entered on the journal necessarily implies that the board had determined that $30,000, or at least a sum not exceeding $30,000, was necessary for the erection of the court house and jail. If we go outside of the order, the preponderance of the evidence presented upon the application is, that the sum necessary to be raised for the erection of permanent county buildings was considered and determined by the county board, although not expressly stated in the order entered upon the journal. J. C. Tuttle, the county clerk, testified that the proposition to build a court house and jail was considered, and $30,000 was determined to be the proper sum to build both. A. M. Craig, one of the commissioners, testified that the proposition was considered to build a court house, and that $30,000 was determined to be the proper sum necessary to be raised for that purpose. In this state it is quite usual, in the construction of court houses, to have the jail in the basement or lower story, and if this plan was considered by the board in making the order, we do not perceive any conflict in the affidavits of J. C. Tuttle, the county clerk, and A. M. Craig, the commissioner.

Sffio'feKt posting. Finally, it is claimed that the election of September 7,1885, was invalid because the commissioners did not give notice of the determination required by §19, and of the time when the question would be submitted to the electors of the county by written or printed handbills posted up in five of the most public places in each township for at least thirty days previous to September 7th. In accordance with the order of the county board, the sheriff issued his proclamation on July 15, 1885, announcing that on Monday, the 7th day of September, 1885, a special election would be held in Wilson county, at the usual voting-places in the several townships in said county, between the hours of 8 o’clock A. M. and 6 o’clock p. M. of said day, and that there would be submitted to the voters of said county to be voted on at said election, the proposition: Shall the board of county commissioners of Wilson county, Kansas, for and in behalf of said county, issue the bonds of said county in a sum not to exceed $30,000, to bear interest at the rate of five per cent, per annum payable semi-annually; said bonds to be in the sum of $1,000 each; two of said bonds to be payable five years from date thereof, and two of said bonds to be payable each year thereafter until the whole are paid, for the purpose of erecting permanent county buildings in the city of Fredonia, Wilson county, Kansas; those in favor of the proposition, to have written or printed on their ballots the words “For the loan;” those voting against the proposition to have written or printed on their ballots “Against the loan”? This proclamation or notice was sufficient, if properly published or posted up, although “permanent county buildings” were named instead of “a court house and jail.” The t # statute requires written or printed handbills to be posted up in five of the most public places in each township. The evidence of the sheriff shows that five notices were posted up in each township, but the contention is, that the notices were not judiciously distributed over the townships in such a manner as to attract the greatest attention of the electors — that is, that they were not posted up in five of the most public places in each township. Upon the affidavits presented, although conflicting in their terms, there was sufficient evidence before the court to find that the proclamation or notices for the election were posted up in compliance with the terms of the statute; but as this matter will be investigated again upon the final trial, we purposely decline to comment upon the evidence offered. Undoubtedly, the commissioners could appoint the sheriff to post up the notices, and if he performed this duty in good faith, not acting corruptly or partially, the posting will be sufficient, although the witnesses differ as to whether the handbills were posted up in the most public places in the townships.

The order of the district court refusing a temporary injunction will be affirmed.

All the Justices concurring.