George v. Township of Oxford, 16 Kan. 72

George v. Township of Oxford

16 Kan. 72 | Kan. | 1876

The opinion of the court was delivered by

Valentine, J.:

Passing over all preliminary and minor questions, the main question presented to us in this case is, whether certain bonds issued by the township of Oxford, in Sumner county, to the “Oxford Bridge & Perry Company,” a private corporation of said township, are valid. Said bonds show upon their face that they were issued on April 15th 1872, “in pursuance of an act of the legislature of the state of Kansas, entitled ‘An act authorizing the trustee, treasurer, and clerk (or any two of them) of the township of Oxford, county of Sumner, and state of Kansas, to subscribe for stock in the Oxford Bridge Company to the amount of ten thousand dollars, to aid in the construction of a bridge across the Arkansas river at Oxford in said county and state, and to issue the bonds of said township in payment therefor,’ ap*78proved March 1st 1872; and in pursuance of a vote of the qualified electors of said township had at an election held therein on the 8th day of April 1872.” Said act took effect March 21st 1872. (Laws of 1872, pp. 320, 321.) It provides for issuing “the bonds of said township to the amount of ten thousand dollars, for the purpose of aiding in the building and constructing a bridge across the Arkansas river at the town of Oxford in said county and state;” (§ 1.) But to whom the bonds were to be issued, is not designated in the act. And the body of the act does not anywhere provide for subscribing for stock in the “Oxford Bridge & Ferry Company,” or in any other company or corporation. The title of the act mentions the “Oxford Bridge Company.” Said act also provides that, “Before any of the bonds herein-before mentioned shall be issued, the question of issuing said bonds shall be submitted to the legal voters of said township, at an election to be held for that purpose, which said election shall be conducted in all respects in conformity with the general election laws of this state. The time and place of holding said election shall be designated by the said trustee, treasurer and clerk (or any two of them) by giving at least thirty days’ notice by posting written or printed notices thereof in three of the most public places in said township;” (§5.) Now the election to determine whether the bonds should be issued or not was in fact held on the 8th of' April 1872, only eighteen days after the act authorizing the issue of the bonds took effect; and this is shown upon the face of the bonds. The notices of the election were in fact given only from March 24th 1872 to the day of the election, only fifteen days, instead of thirty, as the act prescribes; but this is not shown on the face of the bonds. And the bonds were in fact issued on April 15th 1872, only twenty-five days after the act took effect; and this is shown on the face of the bonds. We do not mean that the time when the act took effect is shown on the face of the bonds, but it is shown on the face of the bonds under what act, and under what election, the bonds were issued, and when the election was held, and when *79the bonds were issued; and every one having anything to do with the bonds is required to know when the act under which they were issued took effect, and therefore what time elapsed after the act took effect till the election was held and the bonds issued. Now we think the election under which the bonds were issued was void. First, because sufficient time had not elapsed after the act took effect, and before the election was held; second, because sufficient notice of the election had not been given, and could not have been given, after the act took effect and before the election was held. And we think the bonds are void because no sufficient or valid election was held authorizing their issue. The legislature evidently intended that no bonds should be issued unless an election authorizing their issue should first be held. The legislature evidently intended that no such election should be held within less than thirty days after the act should take effect; and the legislature evidently intended that no such election should be held unless “at least thirty days’ notice” thereof should first be given. The bonds were, in this case, issued in less than thirty days after the act authorizing their issue took effect. As we have already stated, the bonds do not show upon their face that the township board did not at least thirty days prior to said election call the election and give notice thereof. But even if they had done so, their action in that respect would have been void. Thirty days prior to said election there was no law in force authorizing the township board to call an election for any such purpose, or to give any notice of such an election. There is no room therefore for any innocent or bona fide purchaser of the bonds to suppose that the election was legally called, or that the proper notices thereof were legally given. And as this is an election that depends for its validity upon being legally called, and upon legal and proper notice thereof being given for at least thirty days prior to the election, and as these things were not done, the election must be held to be invalid. This is wholly unlike an election where the object of the election and the time and place for holding the same *80are all fixed by law. There the election is valid, although a notice required by law may not be given. In such a case the electors are presumed to know the law. They are presumed to know what is to be done at the election, and the time and place of holding the same, because these are all fixed by law. Where “the time and place” of holding the elections are to be “designated” by some board or person, as in this case, and are not fixed by law, then the notice required by law must be given; and if the time “designated” be soyiear in the future that legal notice cannot be given, then the election must be held to be void. Beal v. Ray, 17 Ind. 554. As to the necessity for sufficient notice in certain special elections, see People v. Porter, 6 Cal. 26; McCune v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; Westbrook v. Rosborough, 14 Cal. 180. See also Jones v. The State, 1 Kas. 273; Gossard v. Vaught, 10 Kas. 162.

The judgment in this case must be rendered for the defendant.

All the Justices concurring.