State ex rel. Anthony v. Barton , 58 Kan. 709 ( 1897 )

Johnston, J.

This was a proceeding in mandamus, brought to contest an election held for the purpose of determining the location of the county seat of Gray County. In the alternative writ it is alleged that, by a vote of the electors of the county, the county seat was, on February 13, 1887, located at the town of Ingalls; that on January 10,'1893, a petition was presented to the Board of County Commissioners, requesting the calling of an election to vote upon a proposition to remove the county seat from Ingalls tt> the town of' Cimarron; that the petition was signed with the names of 306 persons, purporting to be electors of the county, and that of these, three were of persons who never signed the petition or authorized their names to be signed to it, three were the names of minors, fifty were the names of persons who were not electors or residents of the county, two were the names of persons who asked to have their names stricken from the petition, and ninety-seven were the names of persons whose names did not appear on the last assessment rolls of the county. It is alleged that the number of electors in the county at the time the petition was presented was 510; that the number of electors as shown by the last assessment rolls was 487; and that, notwithstanding the insufficiency of the petition, the board, upon the authority thereof, ordered an election to be held on February 13, 1893, on which day the electors of the county generally assembled at the polling-places and balloted upon the question of the removal of the county seat. On February 18, 1893, the Board of County Commissioners canvassed the returns of that election and declared that Cimarron had been chosen as the county seat of the county; and under color of that declaration the county officers of the county removed their offices to the town of Cimarron and began the transaction of public business at that place. It is finally alleged that, by reason of the invalidity and insufficiency of the petition, as above stated, the order calling the election and all the proceedings depending thereon were wholly void and illegal, and that Ingalls is still the county seat of Cray County. A motion to quash the alternative writ, upon the ground that it failed to state facts sufficient to constitute a cause of action, was sustained by the trial court, and this ruling is assigned for error.

Taking the averments of the writ to be true, as we must, the petition upon which the election was ordered was wholly insufficient. If the petition was fatally defective, it did not warrant the order calling the election, and any election held thereunder was necessarily invalid. This appears to have been conceded; but the view of the trial, court, as indicated by remarks made when the decision was rendered, was, that the adherents of Ingalls, having taken part in the election, were estopped from questioning its validity. There was an averment in the writ that the electors of the county generally participated in the election, from which the trial court inferred that the relator and those whom he represented had voted at the election and were therefore precluded from taking any steps to contest its validity. It does not appear that the relator took part in the election, nor do we think that his participation in the election, or that of any of the other adherents of Ingalls, affected their right to institute a statutory contest. This is a statutory proceeding to contest the validity of the election, and the statute contemplates that such a contest may be had after the election has been held. It authorizes an inquiry into every preliminary step affecting the validity of the election, including the sufficiency of the petition. Gen. Stat. 1889, ¶2778; The State ex rel. v. Stockwell, 7 Kan. 98; County Seat of Linn Co., 15 id. 525 ; The State ex rel. v. Eggleston, 34 id. 714.

Evidently, it was the purpose of the Legislature that every matter affecting the validity of the election might be investigated and determined in a single contest had after the election was held. There is nothing to indicate that the validity of each step in and about the election must be contested when it is taken, nor any suggestion that only those who refrain from voting or participating in the election are authorized to institute a contest, nor do we see any rule for applying the doctrine of estoppel in this case. The fact that the adherents of Ingalls participated in the election, the validity of which had not yet been determined, prejudices no one, and estops no one from exercising the right to contest which the statute gives. Smith v. Holt, 24 Kan. 771. The ruling of the court in sustaining the motion to quash will, therefore, be reversed and the cause remanded for further proceedings.