The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus to compel the mayor, council, and city clerk of the city of Topeka to issue to the plaintiff a certificate of election showing that he was elected to the office of justice of the peace in and for the city of Topeka on the 6th of April 1875. All questions have been so arranged and disposed of by the parties that the only question for us to determine is, whether the plaintiff was duly elected to said office of justice of the peace or not. Involved in this question, however, are several others, which we shall consider as we proceed with this opinion. We think we may assume as among the established facts in this case, that there were two justices of the peace to be elected in the city of Topeka on the said 6th of April 1875; that the mayor however [111]*111issued his proclamation for the election of only one; that each elector voted to elect onty one; that the electors did not in fact know that more than one was to be elected; that 1598 votes were cast for the various candidates for that office, of which Thomas Johnson received 655 votes, Seth H. Wood, the plaintiff, received 342 votes, Samuel S. Urmy received 324 votes, and J. C. Chesney received 277 votes. The question is, whether upon these facts the plaintiff was duly elected to said office. The objections urged against his election are, .that no notice was given or proclamation issued for the election of more than one justice of the peace, the electors believed that only one justice was to be elected, and they voted to elect only one — each elector voting for one person only for that office. Now it is true, that the plaintiff knew before the election, and at the time thereof, that two justices were to be elected, and he told several other persons so, and he thinks that one or two ballots were cast at that election in the first ward with two names for the office of justice of the peace thereon; but still the agreed statement of facts shows that “the electors in casting their ballots for justice left the name of but one candidate on their tickets, and so each elector voted for but one person for said office of justice of the peace;” and the fact undoubtedly is, that the electors, with scarcely any exceptions, did not know or even suspect or imagine that more than one justice was to be elected at that election. The voters were of course mistaken in supposing that there was but one justice to be elected at that election, but the mistake was clearly one of fact, and not one of law. Justices of the peace are elected in this state each for a term of two years; but there .is no law designating when their terms shall commence, or in what years they shall be elected to fill such terms, and these questions depend upon the facts of each particular case. They really depend upon what year the first election for justices of the peace within the particular city or township where the inquiry is made took place. For instance, the first election held in and for and by the city of Topeka for justices of the peace was on April 5th 1869: hence, [112]*112the regular elections for that office in Topeka would be held in April in the years 1871,1873,1875,1877, and so on, in every alternate year thereafter. But if the first election had been held in 1868, or in 1870, instead of in 1869 as it was held, then all the regular elections held thereafter would have been held in the even years, instead of in the odd years as now held. From this it will be perceived that the regular elections for justices of the peace may be held in the various cities and townships in the state in different years, and that no one can tell when a regular election for justices of the peace is to be held in any particular city or township except from proof, or evidence, or knowledge of facts. This is not so with reference to state or county officers. With reference to them the law (Gen. Stat. 427, 428,) fixes absolutely and uniformly throughout the state the time for their election. And therefore, as all persons are presumed to know the law, all persons are presumed to know when a state or county officer is to be elected, although he may receive no notice thereof from any other source. (George v. Oxford Township, ante, 79.) The courts will take judicial notice when state and county officers are to be elected. (Ellis v. Reddin, 12 Kas. 306.) But courts cannot take judicial notice when justices of the peace are to be elected. Or rather, courts may take judicial notice that justices of the peace are to be elected in April of each alternate year, (in cities of the second class, and in townships also up to 1875,) for the law thus far prescribes.; but courts cannot take judicial notice as to which these alternate years are. Courts cannot judicially know, except from evidence, whether these alternate years are the odd years, or the even years. And probably voters, who receive no notice, actual or constructive, cannot be required to know more in this respect than the courts. Under the laws of this state the mayor of each city of the second class, (and Topeka is such a city,) is required to issue a proclamation giving at least ten days’ notice of each election, and “ announcing the offices to be filled” at such election. (Laws of 1872, page 196, §17.) Now probably if such a notice were given [113]*113the voters could not ignore the notice, and refrain from voting. Or, if the body of the voters were in fact to receive notice in any other manner, probably they could not ignore it. Or, if sufficient facts should come to the knowledge of the body of the voters to put them upon inquiry, possibly they could not ignore the election. This has been so held where the election was held at the same time and place of some other election which called out substantially all the voters, and the matter was discussed among the voters, and a large proportion of them voted upon the subject. But none of the foregoing cases is this case. In this case the body of the voters had no notice from any source, and they did not participate in the election. That is, they had no notice of an election for two justices, and each elector voted for only one justice. In fact, the notices that they actually received, from whatever source they came, might almost be construed into an actual and affirmative notice that there would be an election for only one justice. The first election by the city for justices was in 1869. The regular election would therefore have been held every alternate year thereafter. But instead of an election coming only once in every two years, there has been án election for one or more justices held in Topeka every year since 1869. In 1870 one justice was elected. In 1871 two were elected. In 1872 one was elected, and one of those elected the year before held over. In 1873 one was elected, and the one elected in 1872 held over. In 1873 the mayor’s proclamation was for the election of only one justice, and only one was voted for by each of the electors. In 1874 one justice was elected, and the one elected the year before held over. And the one elected in 1874 was elected and .commissioned for two years, and he is now holding the office under that election. It will therefore be seen, that the whole city of Topeka has been laboring under a mistake as to the regular time for electing justices, and that the mistake originated at least as early as the spring of 1873. Now as this mistake is a mistake' of fact, and not of law, we hardly think that it is sufficient to defeat the will of the voters. “The [114]
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus to compel the mayor, council, and city clerk of the city of Topeka to issue to the plaintiff a certificate of election showing that he was elected to the office of justice of the peace in and for the city of Topeka on the 6th of April 1875. All questions have been so arranged and disposed of by the parties that the only question for us to determine is, whether the plaintiff was duly elected to said office of justice of the peace or not. Involved in this question, however, are several others, which we shall consider as we proceed with this opinion. We think we may assume as among the established facts in this case, that there were two justices of the peace to be elected in the city of Topeka on the said 6th of April 1875; that the mayor however [111]*111issued his proclamation for the election of only one; that each elector voted to elect onty one; that the electors did not in fact know that more than one was to be elected; that 1598 votes were cast for the various candidates for that office, of which Thomas Johnson received 655 votes, Seth H. Wood, the plaintiff, received 342 votes, Samuel S. Urmy received 324 votes, and J. C. Chesney received 277 votes. The question is, whether upon these facts the plaintiff was duly elected to said office. The objections urged against his election are, .that no notice was given or proclamation issued for the election of more than one justice of the peace, the electors believed that only one justice was to be elected, and they voted to elect only one — each elector voting for one person only for that office. Now it is true, that the plaintiff knew before the election, and at the time thereof, that two justices were to be elected, and he told several other persons so, and he thinks that one or two ballots were cast at that election in the first ward with two names for the office of justice of the peace thereon; but still the agreed statement of facts shows that “the electors in casting their ballots for justice left the name of but one candidate on their tickets, and so each elector voted for but one person for said office of justice of the peace;” and the fact undoubtedly is, that the electors, with scarcely any exceptions, did not know or even suspect or imagine that more than one justice was to be elected at that election. The voters were of course mistaken in supposing that there was but one justice to be elected at that election, but the mistake was clearly one of fact, and not one of law. Justices of the peace are elected in this state each for a term of two years; but there .is no law designating when their terms shall commence, or in what years they shall be elected to fill such terms, and these questions depend upon the facts of each particular case. They really depend upon what year the first election for justices of the peace within the particular city or township where the inquiry is made took place. For instance, the first election held in and for and by the city of Topeka for justices of the peace was on April 5th 1869: hence, [112]*112the regular elections for that office in Topeka would be held in April in the years 1871,1873,1875,1877, and so on, in every alternate year thereafter. But if the first election had been held in 1868, or in 1870, instead of in 1869 as it was held, then all the regular elections held thereafter would have been held in the even years, instead of in the odd years as now held. From this it will be perceived that the regular elections for justices of the peace may be held in the various cities and townships in the state in different years, and that no one can tell when a regular election for justices of the peace is to be held in any particular city or township except from proof, or evidence, or knowledge of facts. This is not so with reference to state or county officers. With reference to them the law (Gen. Stat. 427, 428,) fixes absolutely and uniformly throughout the state the time for their election. And therefore, as all persons are presumed to know the law, all persons are presumed to know when a state or county officer is to be elected, although he may receive no notice thereof from any other source. (George v. Oxford Township, ante, 79.) The courts will take judicial notice when state and county officers are to be elected. (Ellis v. Reddin, 12 Kas. 306.) But courts cannot take judicial notice when justices of the peace are to be elected. Or rather, courts may take judicial notice that justices of the peace are to be elected in April of each alternate year, (in cities of the second class, and in townships also up to 1875,) for the law thus far prescribes.; but courts cannot take judicial notice as to which these alternate years are. Courts cannot judicially know, except from evidence, whether these alternate years are the odd years, or the even years. And probably voters, who receive no notice, actual or constructive, cannot be required to know more in this respect than the courts. Under the laws of this state the mayor of each city of the second class, (and Topeka is such a city,) is required to issue a proclamation giving at least ten days’ notice of each election, and “ announcing the offices to be filled” at such election. (Laws of 1872, page 196, §17.) Now probably if such a notice were given [113]*113the voters could not ignore the notice, and refrain from voting. Or, if the body of the voters were in fact to receive notice in any other manner, probably they could not ignore it. Or, if sufficient facts should come to the knowledge of the body of the voters to put them upon inquiry, possibly they could not ignore the election. This has been so held where the election was held at the same time and place of some other election which called out substantially all the voters, and the matter was discussed among the voters, and a large proportion of them voted upon the subject. But none of the foregoing cases is this case. In this case the body of the voters had no notice from any source, and they did not participate in the election. That is, they had no notice of an election for two justices, and each elector voted for only one justice. In fact, the notices that they actually received, from whatever source they came, might almost be construed into an actual and affirmative notice that there would be an election for only one justice. The first election by the city for justices was in 1869. The regular election would therefore have been held every alternate year thereafter. But instead of an election coming only once in every two years, there has been án election for one or more justices held in Topeka every year since 1869. In 1870 one justice was elected. In 1871 two were elected. In 1872 one was elected, and one of those elected the year before held over. In 1873 one was elected, and the one elected in 1872 held over. In 1873 the mayor’s proclamation was for the election of only one justice, and only one was voted for by each of the electors. In 1874 one justice was elected, and the one elected the year before held over. And the one elected in 1874 was elected and .commissioned for two years, and he is now holding the office under that election. It will therefore be seen, that the whole city of Topeka has been laboring under a mistake as to the regular time for electing justices, and that the mistake originated at least as early as the spring of 1873. Now as this mistake is a mistake' of fact, and not of law, we hardly think that it is sufficient to defeat the will of the voters. “The [114]*114real will of the people” should generally “not be defeated by any informality.” In the present case more than three-fourths of the electors voted against the plaintiff; and should less than one-fourth who voted for him override the will of the other three-fourths who voted against him ? Under the circumstances of this case we think the law to be, that only one justice was elected, and that such justice was not the plaintiff. There was in fact no election for a second justice. It has been held in many cases that a mere want of notice will vitiate the election. (See authorities cited in case of George v. Oxford Township, ante, 80.) This is. generally so where the law does not fix the time for holding the election. But even where the law does fix the’time for holding the election, it has been held that if no notice was given as required by law, and no notice was in fact received, and the great body of the electors were misled by such want of notice, they believing that no such election was in fact to be had, and only about one-fourth of the electors voted at such election, and they voted for a single candidate, such election is void. Foster v. Scarf, 15 Ohio St. 532. See also The State v. Gœtze, 22 Wis. 368, et seq. And it has several times been held, where a majority of the electors vote for an ineligible candidate, that the election is a nullity, although eligible candidates may also have been voted for. (Saunders v. Haynes, 13 Cal. 145; State v. Giles, 1 Chandler, 112; State v. Smith, 14 Wis. 497; Commonwealth v. Cluley, 56 Penn. St. 270; People v. Clute, 50 N. Y. 451; State v. Swearingen, 12 Geo. 23; State v. Gastinel, 20 La. An. 114; Opinion of Judges, 38 Me. 597, et seq.) The person receiving the highest number of votes in such a case is not elected because of his ineligibility ; and no other candidate can be considered as elected, because a majority of the electors have expressed their will and determination that he should not be elected. This reasoning fits the present case. In the present case the electors chose to elect only one justice of the peace, and a vast majority of them voted against the plaintiff and for other candidates. The candidate elected received nearly twice as many [115]*115votes as the plaintiff.- In our opinion there was no election for a second justice of the peace. An election should therefore be held in April of the present year (1876) to elect another justice to fill the unexpired portion of the term which should have commenced in April 1875.
Judgment in this case will be rendered for the defendants.
All the Justices concurring.