People's voice. [volume] (Wellington, Sumner County, Kansas) 1890-1917, 1900-05-17
THE OPINION.
Supreme Court Gives Reason for Issuing
Writ OF Mandamus,

Inc following Ii the opinion in part.
vi Justice Smith OF The supreme court
ID the case OF the Trustees Of the
County High school against the
Board OF County Commissioners:
1t Will be noticed that Sec
ton of the act Of 1898, providing for
a submission 10 the voters Of the
county, provides that III majority
OF the voters voting al said election
shall vote No. the right, power and
authority Of the board uf trustees of
the Sumter County High school or
The board Of county commissioners OF
SAID county to levy taxes for the sup
port and maintenance thereof snail
cease TO exist etc.
There is not much room for disagree.
meDt as TO the meaning OF this section
OF the law. 1t was within the power
OF the legislature To submit tue propo
sltl0n IN any manner it saw III. LII
might have made the Continued exs
tence of the High school depend UPON
an affirmative vote Of Onf- third Of th,
voters, or might have continued the
dlgh school indefinitely without ANY
vote at all, or have abolished it with
out consulting the voters CT the cOun
ty. We know OF no limitation upon
the authority OF the legislature which
would prevent it from making the
diSeSlablishment Of the High school
depend upon the will Of majority of
the voters voting at the election who
should vote "No" We can come Co
no other conclusion than that the
statute means what it says.
The board OF commissioners in fact
made but one canvass OF the votes,
and that canvass was made on the
10th and 18th days OF November, 1899
Whatever action was taken thereafter
by the board was based on the canvass
made on November 10Th and l1th. All
that was necessary TO complete the
canvass made on those dates was a
declaration of the result. When tue
board sat 10 December 1t was not d
canvdsslng board. It's principal occu-
patton was 10 hear discussion Of law
questions involving the construction
Of section 3 Of the statute under which
the proposition was submitted. The
board was attempting at that time to
ascertain the law covering the case.
This distinctly appears from the
proceedings had before it.
1t is cOntend"d that the canvassing
board wrOngiully assumed that all che
persons whose names appear upon the
poll books voted at the election. We
know OF no better method Of arriving
at the number Of votes cast at aU
election than by counting the names
as they appear upon the poll books.
1t is not to be presumed that any per-
son whose name appears thereon dio
not vote, but that all these names ap.
peared personally and cast their
ballots. We must assume that all
the persons whose names appear on
the poll books voted at the election.
We cannot see that the 81 ballots
which were returned To the county
clerk marked defective and mutilated
and not voted can in any way affect
the case. Their condition is not eX-
planned, and we take it they were not
p laced IN the ballot box aud did not
express the will of any voter named
on the poll book. 1t clearly appears
that a majority OF the voters voting
at said election did not vote No"
This was the test on which the legis-
lature determined that the cOutin-
uance Of the High school should de.
pend; and we think it was the duty
of the board of canvasSers at its meet
ing on November 10th and 18th to de-
clare that the proposition TO dscUn
tinue the school was lost. The de-
claration made by the board at their
meeting in December was wrong,
according to its own record, of which
tie abstract of the vote cast at the
election was part.
1t is the duty OF the canvassing
board to register its determination, )"
sign the same which is to be attested
by the clerk and annexed to the alb
straCt OF votes. An abstract of votes
was made in this case by the board,
but their determination, which we
understand to be nothing more than
a declaration of the result, was omit
ted. This declaration would be Of
little Importance 10 a case where Ger.
tidcates Of election are required to be
issued by the board. No fraud is
alleged to have been committed in
this election. The hesitation upon the |
part Of the commissioners resulted
from doubt as to the proper con-
structiOn Of the statute which authO- |
riZed an election to be had upon the
question.
We conclude therefore that it was
the duty Of the board OF county com |
missioners, sitting as canvassing |
board on November 10th and l1th, to
declare the result as shown by the
record then made; and a peremptory |
writ OF mandamus will be awarded to |
compel the performance Of such duty |
now as OF that time.
All the justices cOncurring.