State ex rel. Lewis v. Eggleston

The opinion of the court was delivered by

Horton, C. J.:

The question for our determination is, whether the temporary injunction granted by the probate judge of Pratt county, on September 7, 1885, enjoining the county commissioners of that county from canvassing the vote polled on October 1, 1885, upon the proposition for the relocation of the county seat of that county, shall be continued in full force until the action can be tried and determined. The order calling the election was made September 1, 1885. The statute requires thirty days’ notice'of the election. (Comp. Laws of 1879, ch. 26, § 6.) It is claimed that, although notices of the election were posted September 1st, no legal notice of the election could'have been given, as there was not sufficient time so to do. It is settled in this state that where any particular number of days, not expressed by dear days, is prescribed, the rule in regard to the computation of time is, not to exclude both the day on which the notice is served and the day on which the act is to be performed, but to exclude the one and include the other. (Civil Code, §722.) Following this rule, thirty days’ notice was given. This was sufficient. (English v. Williamson, ante, p. 212.)

*720 It is next claimed that no sufficient petition was presented to the board of county commissioners under the provisions of §1, ch. 91, Laws of 1883, which, among other things, provides :

“In all cases where the county seat of any county in this state has been or shall hereafter be located by a vote of the electors of such county, . . . the board of county commissioners, upon the petition of three-fifths of the legal electors of such county, shall order an election for the relocation of the county seat.”

*721 1. Removal of iueugibieapetitionetostee" puiged. *720 The last assessment rolls of the several township and city assessors of Pratt county contain the names of from 1,600 to 1,900 legal electors. The petition presented purported to contain 1,581 names. If the names of the persons who requested the commissioners to withdraw their names from the petition, and the names of the ineligible petitioners, had been stricken off the petition before it was finally acted upon, or if the names of such persons had been disregarded, the petition would not have contained the names of sufficient petitioners; that is, there would not have been upon the petition three-fifths of the legal electors of the county whose names appeared upon the last assessment rolls of that county. If the district judge did not vacate the injunction upon the ground that the probate judge had no authority in this class of cases to issue an injunction, it is probable that he vacated the injunction upon the theory that the county board had no power to strike from the petition the name of anyone who had signed the same, although requested so to do by the signer. The purpose of the petition prescribed by the statute is to enable the county board to determine what the will of the people is in that regard, and whether the number of legal electors required by the statute are, at the time of final action thereon, in favor of calling the election. Of course ineligible petitioners ought not to be counted, and we think the county board, at any time before taking final action upon such petition, upon the request of. any person who has signed the same, may determine not to regard such person as a petitioner, and may have his name stricken off the petition; or, if not stricken off, may regard *721 him as not having signed the same. The legislature intended that no election should be ordered for a relocation of a county-seat, in cases like the present, unless a number of the legal electors of the county, equal to three-fifths of the number of legal electors who were assessable and had been assessed at the last assessment, should petition for such an election. If any such elector has, by false representations or through a misapprehension of the facts, been induced to sign such petition, he ought to be permitted to have his name stricken from the petition, if his application therefor is made to the county board prior to final action upon the petition. The commissioners of Pratt cbunty evidently mistook their duty in this respect, and it is only just to them and the peoJ P^e °* ^eir county that they have an opportunity to reexamine the petition and erase therefrom the names of all the signers -who made such a request, and to otherwise purge the petition of ineligible petitioners. We do not assent to the view that the finding of the board is so conclusive as to be beyoud attack by this proceeding, which was commenced prior to the holding of the election. (Comm’rs of Leavenworth Co. v. Brewer, 9 Kas. 318; Gillett v. Comm’rs of Lyon Co., 18 id. 410; Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 id. 129; Oliphant v. Comm’rs of Atchison Co., 18 id. 386; Welsford v. Weidlein, 23 id. 601; Benton v. Nason, 26 id. 662; Fox v. Mateo Co., 49 Cal. 563.)

We have examined the decisions cited, holding that the determination of the county board in such cases is conclusive until reversed or set aside upon appeal or by writ of error, and also the decision that the county board cannot comply with the request of the signers of petitions or remonstrances asking their names to be stricken off. The former decisions are contrary to the adjudications of this court, and the reasoning of the latter decision is not satisfactory. It is true that county-seat contests are attended with great bitterness, and charges and countercharges of unfair practices and fraud are more or less bandied about; but we cannot perceive that the peace of the community can be promoted by the granting of an election *722 for the relocation of the county seat upon an insufficient petition, or that there will be any increase in the bitterness among the people if the signers of petitions are permitted to have their names stricken off, where their signatures have been procured by fraud, or through a misapprehension of facts.

It is further claimed that the injunction granted September 7th has and can have no operation, because the state can give no bond, and if she could give bond, she would not be suable on it; also, because it is alleged that the probate judge did not fix the amount of the undertaking. To support the first proposition, the case of Commonwealth v. Franklin Canal Co., 21 Pa. St. 117, is cited as decisive. The Pennsylvania statute provides that&emdash;

“No injunction shall be issued by any court or judge until the party applying for the same shall have given bond with sufficient sureties.”

The statute of this state reads:

“No injunction . . . shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient securities.”

3. Injunction; bond2 when suflicient.

4. Valid bond.

*723 5. Bonaamount fixed, *722 Under the Pennsylvania statute, the party applying for the injunction must give or execute the bond; under the Kansas statute, the party obtaining the jurisdiction may give or furnish the bond with one or more sufficient securities; but need not execute it. Even, however, if it be assumed that the Pennsylvania statute regarding injunctions is exactly similar to ours, yet, as in this state all obligations are several as well as joint, we think that where an injunction suit is brought by the state, upon the relation of a proper party, a bond furnished by the plaintiff and executed by sufficient securities would be valid and legal. Upon the other proposition, while the order allowing the injunction does not fix the amount of the undertaking, yet it appears from the face of the undertaking, that the injunction was granted upon the condition that the plaintiff give a bond to the defendants in the sum of *723 five hundred dollars, to be approved by the clerk of the court. This bond was given and approved on the same day that the order of injunction was allowed. Taking all the record before us, we.think it sufficiently appears that the judge fixed the amount of the undertaking, and that the bond approved by the clerk of the court was given and accepted in pursuance thereof.

2. Insufficient functSn^accounty attorney' This is not an action brought under the provisions of art. 7, ch. 36, Comp. Laws of 1879, for contesting county-seat elections, but is a suit brought against county and other officials involving their official action and affecting the public interests. The petition alleges that there was no sufficient petition presented to the county commissioners, and that they acted wholly without any authority in ordering the election for the relocation of the county seat of Pratt county; that they disregarded their duty in not striking off the petition the ineligible petitioners and the names of the electors who applied to have their names stricken therefrom before the election was ordered. The matters set up in the petition are , , , A . A °* equitable cognizance, m which a remedy may be by injunction, and the attorney general or the county attorney of the county interested is the proper officer to prosecute this kind of an action. (Gossard v. Vaught, 10 Kas. 162; The State, ex rel., v. Faulkner, 20 id. 547; The State, ex rel., v. Comm’rs of Marion Co., 21 id. 432; Benton v. Nason, supra.)

Counsel for the county board rely with a great deal of confidence upon the cases of Moore v. Hoisington, 31 Ill. 243, and Dickey v. Reed, 78 id. 261, to establish the doctrine that the canvass of election returns cannot be interfered with by an injunction. Both of those cases were proceedings for contesting elections. This is not a proceeding to contest an election, but to restrain the canvass of a vote, upon the ground that the petition presented to the county board for the election was wholly insufficient because of the fact that certain names were by the signers requested to be withdrawn, and that some of the names signed were the signatures of non-residents, or *724 other unauthorized persons. The petition alleges, in substance, that no election ought to have been ordered upon the petition, and that no election could have been legally held upon the petition, under the provisions of the statute.

As to the constitutionality of ch. 91, Laws of 1883, see The State v. Comm’rs of Butler Co., 31 Kas. 460. The vote polled October first cannot be canvassed or declared, or any valid proceedings taken thereon to change the county seat of Pratt county, until the real facts of the case shall be ascertained upon the final trial and the temporary injunction now in force shall have been legally dissolved; and the vote can never be canvassed or declared, if it be finally determined that there was no valid or sufficient petition presented to the county board upon which to order an election. If, upon the trial, it shall be made to appear that after striking from the petition the non-eligible petitioners and the names of all persons who asked their names to be stricken off the petition before • final action was taken thereon, the petition contains less than three-fifths of the legal electors of the county on the last assessment rolls of the county, the order for the election and all proceedings thereunder must fall.

We are therefore led to the conclusion that the district judge erred in dissolving the temporary injunction, and the case will be remanded with instructions to reverse such order, and to proceed further in accordance with the views herein expressed.

All the Justices concurring.