
    The Board of Education of the City of Humboldt v. Paul Klein et al., as County Commissioners, etc.
    
    No. 16,183.
    (99 Pac. 222.)
    SYLLABUS BY THE COURT.
    1. County High Schools—Elections—Votes Required. Before the provisions of chapter 397 of the Laws of 1905, providing for establishing county high schools, can be legally adopted the proposition when submitted at a general election must receive a majority of all the votes cast upon any question or office voted for at such election.
    2. -Elections—Proposition Not Legally Adopted—Powers of Canvassing Board. A proposition to adopt the provisions of the high-school law of 1905 was submitted to the voters of Allen county at the general election held November 6, 1906. There were 4558 votes cast at the election. On the proposition of adopting the high-school act 1821 persons voted in favor of it, 1205 voted against it, and 1532 voting at the election failed to vote on the proposition. The board of county commissioners met as a canvassing board and declared the result. Afterward, assuming that the proposition carried, the board levied a tax for high-school purposes for the year 1907, which was used in the maintenance of a high school under the provisions of the act. In 1908 the board refused to make any levy for this purpose. Held, that the proposition failed to carry, and that no order which the board could have made could affect the legal result of the‘election as shown by the returns.
    3. - Tax Levy—Mandamus—Estoppel. The fact that the board of county commissioners acted upon a misapprehension of the legal effect of the returns and levied a high-school tax for 1907 will not estop the board, in an action brought to compel them to levy a similar tax for the year 1908, from claiming that the proposition was never legally adopted.
    Error from Allen district court; OSCAR Foust, judge.
    Opinion filed December 12, 1908.
    Affirmed.
    
      G. A. Amos, H. A. Ewing, S. A. Gard, and G. R. Gard, for plaintiff in error.
    
      C. J. Peterson, county attorney, and Charles H. Apt, for defendant in error.
   The opinion of the court was delivered by

Porter, J.:

At the general election held November 6, 1906, there was submitted to the voters of Allen county a proposition to adopt what is known as the “Barnes high-school law,” under the provisions of chapter 397 of the Laws of 1905, entitled “An act providing for the maintenance and regulation of high schools.” At this election there was a total of 4558 votes cast; on the proposition of adopting the provisions of the high-school act 1821 persons voted in favor of it, 1205 voted against it, and 1532 voters voting at the election failed to vote on the proposition. After the canvass of the vote the county commissioners, assuming that the proposition had carried, proceeded to levy a tax for high-school purposes on all the property in Allen county, and the board of education of the city of Humboldt made arrangements for carrying on its high school in accordance with the provisions of the act, and conducted a high school thereunder during the year 1907. Afterward, at the August meeting in 1908, the board of county commissioners refused to make any levy for. the purpose of carrying on the high ■ school, and thereupon the board of education brought this action in mandamus in the district court of Allen county to compel the. county board to levy a tax for the year 1908 under the provisions of the act.- There was a trial, and the' court found for the defendant and denied the peremptory writ. This proceeding in error was brought to reverse that judgment. ■

The plaintiff in error raises two contentions: First, that the proposition submitted to the voters carried at the election, since it received a majority of the votes cast upon that question; second, that the action of the board of county commissioners, when it met as a canvassing board to canvass the result of the election, amounted to a declaration that the proposition carried, and that it was too late for the board afterward to attempt to make a different record annulling the former one.

The first contention raises a question which is no longer an open one in this state. Section 10 of the act of 1905 provides that the proposition shall be submitted at the next general election in each county or part of county to which the act applies, “unless previously submitted.” The same section then contains a provision which reads:

“Whenever a majority of the voters voting in any' county, or the part of any county to which this law may apply, at such election shall be in favor of such proposition, the provisions of this act shall apply in such county from the time such result is ascertained.”

The exact meaning of this language, “a majority of the voters voting ... at such election,” when the election is a general one, has been determined by this court to mean a majority of all the voters voting on any proposition at such election. (High School v. Commissioners, 61 Kan. 796, 60 Pac. 1057; In re Davis, 62 Kan. 231, 61 Pac. 809.) The legislature made it optional with the proposers to have the proposition submitted at a special or at the general election. In either case it required a majority of all the votes cast at such election. The proposition to adopt the high-school act having failed to carry, it necessarily follows that the board can not be compelled by mandamus to perform official duties the authority for which can only be derived from the adoption of the act.

We can not yield our assent to the contention that, because the canvassing board in determining the result of the election declared that the proposition carried, this made the matter res judicata or estops the board from now claiming that it was not carried. As was said in Shull v. Comm’rs of Gray Co., 54 Kan. 101, 37 Pac. 994:

“The duty of a canvassing board is almost wholly ministerial. They are to ascertain and declare the re-suit of the voting as shown by the returns.” (Page 106.)

This, we assume, is what the canvassing board did. It declared the result of the votes as shown by the returns. The result shows that the proposition failed to carry. The fact that the board of county commissioners acted during the year 1907 upon a misapprehension of the legal effect of the returns can make no difference.

No importance .can be attached to the contention that the refusal to levy the tax amounts to a finding or order of the board reversing its former action when sitting as a board of canvassers. No order that the board could have made at any time could affect the legal result of the election as shown by the returns. This is an action to compel the board to levy a tax—to do something which, it has no right to do unless the high-school law is in force in Allen county under the election of 1906. Since the proposition failed to carry, the law never was in force, and nothing that the board sitting as a canvassing board or as county commissioners may have done in the premises could alter the situation.

For these reasons the judgment of the district court is affirmed.  