State v. Board of Commissioners

31 Kan. 460

• Court: Supreme Court of Kansas
• Decided: January 15, 1884
• Status: Published

Opinions

The opinion of the court was delivered by

Hokton, C. J.:

From the agreed statement of facts it appears, among other things, that in 1864 the county seat of Butler county was located at El Dorado by a vote of the electors of that county, and has been continuously there ever since — over nineteen years; that county buildings have been erected at the county seat at a cost to the county of $10,000, without submitting the same to a vote of the electors of Butler county; that on the 10th day of April, 1883, there was presented to the defendants, as the board of county commissioners of that county, a petition purporting to be signed by 2,194 legal electors of the county, asking that an election be called for the relocation of the county seat; that at the same time there was presented a counter-petition signed by 2,781 legal electors of the county, asking that no such election be called; that by the assessment rolls and personal-property statements for 1882 the number of legal electors of the county was 4,252; that this action was commenced on the 3d day of May, 1883; and that the defendants declined to call the election as prayed for in the petition presented to them.

It is claimed in the case on the part of the relator, that ch. 91, Laws of 1883, does not apply, for two reasons: First, As the petition was filed in the clerk’s office of Butler county on April 2, 1883, before the act of 1883 had been published or taken effect, that it was a “proceeding commenced” under the law in force at the time it was filed, and should have been completed under that law. Although the petition was filed April 2,1883, it was not presented until April 10,1883, and ch. 91, Laws of 1883, took effect on April 5, 1883. Even if the filing of the petition on April 2, 1883, was the commencement of the “proceeding,” the theory of counsel for the relator is disposed of by the decision of this court in the case of Gordon v. The State, 4 Kas. 489. The reasoning of that decision has never been satisfactory to the writer; nevertheless, it is the opinion of the majority of the members of this court that it should be followed. This decision was rendered in 1868. Since that time it has been unchallenged, and the legislature has given sanction thereto by failing to enact any law changing the rule therein announced.

Second, It is urged that the law of 1883 is null and void, (1) because its provisions require more than a majority of the voters to carry .the proposition; (2) because it is illegal, meaningless, and void, as it does not change or repeal § 6, ch. 26, General Statutes of 1868.

It is unnecessary to discuss these various objections. It is clearly within the power of the legislature to require more than a majority of the electors to petition before an election shall be called for the relocation of a county seat, and to define who are to be considered legal petitioners. The law of 1879 required in a case like the one presented a petition of a majority of the legal voters only. The law of 1883 requires in such a case a petition of two-thirds of the legal electors. In this respect, whatever may be said of the other objections taken, the act is constitutional. It was in full force at the time the petition was presented to the defendants for their action. The act of 1883 declares no petitioner shall be deemed a legal elector unless he be an elector, and his name appear on the last assessment rolls of the several township and city assessors of the county. The assessment rolls of Butler county for the year 1882 showed the number of electors of the county to be 4,252. The petition was signed by 2,194 electors only. This was not two-thirds of the legal electors of the county; therefore the peremptory mandamus must be refused.