44 Kan. 528 | Kan. | 1890
This is an original action in this court to compel the board of county commissioners of Rawlins county to order an election for the re-location of the county seat of that county. On the 28th day of February, 1888, a petition was presented to the board requesting an election to be ordered upon the question of the removal of the county seat from Atwood to Blakeman. For more than five years before the presentation of such petition the county seat of Rawlins county had been located at Atwood by a vote of the people; and hence to authorize an election, the petition must contain the names of three-fifths of the electors of the county as they appear on the last assessment rolls. The petition presented by the Blakeman people to the board of county commissioners on the 28th day of February, 1888, contained the names of 1,010 electors of the county, whose names appeared on the last personal-property assessment roll. We place the number on that petition at 1,010 electors, not because the testimony clearly demonstrates that it contained that number, although it may be said that there is evidence tending to establish this as the number, but because we desire to give the relator the benefit of his strongest claims on all questions arising in this case. The personal-property lists required by § 65 of the tax law, (Gen. Stat. of 1889, ¶6911,) on file in the county clerk’s office of Rawlins county, at the date of the presentation of this petition, contained 1,817 names. Of these, it appears that 330 are the names of females, deceased persons, non-residents, corporations and partnerships; and this number is to be deducted, leaving 1,487 as the number of electors of said county as shown by this list. If the personal-property list is the only list or assessment roll contemplated by §4 of the chapter on county seats, (Gen. Stat. of 1889, ¶ 1889,) it is apparent that the petition of the Blakeman people contained the names of more than three-fifths of the electors of Rawlins county, and it was the duty of the county board to order the election as prayed for. But it is claimed that the board of county commissioners had a right to con
This construction was followed in the case of The State, ex rel., v. Comm’rs of Phillips Co., supra. But in neither of these cases was it urged or claimed that the section included the real-estate assessment lists. There is a single expression in the last case only, that warrants the claim that is made for that
The present section was passed in March, 1883-, long after it was made the duty of the township assessors to list and value both real and personal property. It reads: “ For the purposes of this act the county commissioners shall be governed by the last assessment rolls of the several township and city assessors of the county, and no petitioner shall be deemed a legal elector, unless he be an elector and his name appears on said rolls.” At a time when only personal property was assessed by township assessors, the legal electors were to be ascertained from their assessment rolls. At a time when both real estate and personal property are assessed by city and township assessors, the county boards are to be governed by their last assessment rolls. Construing these two sections in the light of the duties imposed by other statutes upon township assessors, we have no doubt but that the legislature intended to include both the assessment rolls of real estate as well as that of personal property, as a basis to govern the county board in determining the sufficiency of such a petition. In §§ 76, 77 and 82 of the tax law, the words “assessment rolls” are used with reference to both real and personal property, but in one of the most important sections of the law; (§ 139,) it refers to the real-estate assessment roll exclusively; so that, gathering the intent of the legislature as expressed in section four, from the use of similar language in the other statutes that define what assessment rolls consist of, it must be apparent that the assessment rolls referred to mean the assessors’ returns of both real and personal property. We conclude, therefore, that by the amend
It is claimed on one side that after the real-estate assessment rolls have been purged, by excluding .therefrom all non-residents, females, corporations, partnerships, and the names of those who are also on the personal-property assessment rolls, that there remain the names of 502 electors. This is the number practically settled upon by the board of county commissioners, and probably the weight of the evidence is in its favor. On the other side, it is asserted that after the real-estate rolls are thus purged, there remain but 218 names. So far as the decision of this case is concerned, it does not practically make any difference which number we adopt, as the result of either is fatal to the relator. If 502 is added to 1,487, making 1,989, the three-fifths necessary would be
It is recommended that a peremptory writ of mandamus be denied the relator.
By the Court: It is so ordered.