90 Kan. 624 | Kan. | 1913
The opinion of the court was delivered by
By this proceeding the state seeks to oust the defendants from exercising the powers and privileges of the high school board of Eagle township, King-man county, and contends that the proceedings taken for the establishment of a township high school and the election of a high-school board were so defective as to be wholly void. The case has been submitted upon an agreed statement of facts.
The statute involved is chapter 262 of the Laws of 1911, as amended by chapter 278 of the Laws of 1913. The statute provides that upon the presentation of a-petition signed by more than one-third of the legal electors of any township to which the statute applies, the township board shall call a special election to decide
Various objections have been raised to the form of the petition upon which the election was called, but the only serious defect we find in the proceedings is that the notice of the election was insufficient, which in our opinion entitles the plaintiff to a judgment of ouster.
The provision for notice reads:
“All elections held under the provisions of this act shall be governed by the provisions of the general election law of this state where not contrary to this act. Notice of all such elections shall be given at least twenty-one days prior'to the day fixed for such election, by posting up printed or typewritten notices on the door of each school house in said township, and publishing the same twice in the official county paper of the county wherein the township is situated, setting forth fully the purposes and objects of such election and the time and place or places where it is to be held.” (Laws 1911, ch. 262, §2.)
It is admitted that the notice was posted upon .the door of each schoolhouse in the township more than twenty-one days prior to the. election. The first notice in the newspaper was published on May 9, the election being called for the 27th. This notice, therefore, was first published less than twenty-one days prior to the election. The defendants’ contention is that the statute being silent as to when the first and last notice shall be published, the limitation of twenty-one days applies only to the posting of the notices; that usually where the legislature intends that the first or last publication of an election or other notice must be made on or before a certain date, the time is definitely stated in the statute. Thus, in case of service by publication, the notice must give the defendant not less than forty-one days
The statute declares that “notice of all such elections shall be given at least twenty-one days prior to the day fixed for such election,”'and in the same sentence provides the manner in which the notice shall be given, namely, “by posting . . . notices on the door of each schoolhouse . . . and publishing the same twice in the official county paper.” (Laws 1911, ch. 262, § 2.) We construe the statute to require that notice in both ways be given at least twenty-one days prior to the election. Otherwise it would be possible for the election to be held on the day following the issue of the official paper, the first publication having been made eight days and the last one day preceding the election. Eight days might be reasonable notice- for such an election; but manifestly the legislature, while providing that notices must be posted not less than twenty-one days, did not intend that the first published notice might be made within so short a period as eight days prior to the election.
Judgment will be entered for the plaintiff as prayed for.