16 Kan. 302 | Kan. | 1876
The opinion of the court was delivered by
This was an action by the defendant in error to cancel a subscription for stock, and for the return and cancellation of the bonds of the county issued in payment of the stock. A demurrer to the petition was overruled by the district court, and this ruling is the matter here presented for review. We shall content ourselves with the examination of a single question, for upon that we think the ruling must be sustained. The subscription was ordered at a special session of the county board, and it is insisted that such session was not legally called, nor validly held. The facts respecting it are, as stated in the petition, and for the purposes of the demurrer admitted to be true, as follows:
“And said plaintiffs aver, that two members of said board did not request that such special session of said board should be held, nor that the same should be called by the chairman of said board; that no call for such special session was ever made by the chairman of said board; that all the members of said board were not present at such so-called special session ; that B. M. Lingo, at that time an acting and legally-elected and qualified member of said board, was absent from said so-called special session, and no notice of such special*307 session, or of any call therefor, was given to or served upon the said B. M. Lingo, or at his residence, although, as said Railway Company and its agents then and there well knew, the said B. M. Lingo was then in said county, and resided therein with his family, and had no knowledge or notice of such intended special session, or of any call therefor; but that knowledge and notice of such intended special session was intentionally and fraudulently concealed and kept from the said B. M. Lingo by the said Railway Company and its agents; and said session was not a regular session of said board, nor was it an adjourned session from any regular session thereof, nor from any duly-called special session of said board.”
Was such session a legal one, and the acts of the two commissioners thereat binding on the county? and if not, is it estopped from asserting its illegality in this action? The statute providing for sessions of the county board is found ‘in § 13, p. 256 of the Gen. Stat. That section, after providing for the meeting of the board in regular session, adds, “and in special session on the call of the chairman, at the request of two members of the board, as often as the interests of the county may demand.” This is the only statutory provision on the subject. It does not specify whether the call shall be verbal, or in writing, how long prior to the meeting it shall be made, nor require a record to be preserved of it. And the same is true as to the request. But still it requires a “oall; ” and a call of a meeting, in the legal sense of the term, is a summons to the parties entitled to meet, directing them to meet. It involves something more than a mere purpose in the mind of the caller, or an expression of that purpose unheard, unseen, and unknown. It implies a communication of that purpose to the parties to be affected by it. How it shall be communicated, is sometimes prescribed by statute, or by by-law. It is sometimes provided that it shall be by publication in the newspaper, sometimes by printed notice served personally or at the residence, and sometimes by mere oral personal notice. But in some way or other notice must be given; and if there be no regulation as to the manner of notice, it must be personal, at least where personal notice is
But we are referred by counsel to that clause. in the act
The ruling of the district court must be affirmed.