I concur in the decision of the court in this case, but I do not concur in all that is said, in the written opinion of Mr. Justice Brewer. I do not tbinlr that the petition in the court below shows, as is claimed, that the subject-matter of this controversy had ever been heard and determined, by any judicial tribunal of competent jurisdiction, prior to the commencement of this *66action. The following is all that portion of the petition which states anything with reference to this matter, and it reads as follows:
“ The plaintiff further alleges, that afterwards, on the 7th day of April, 1870, the said city council of said city met, (it being the first meeting of the said city council after said election,) and proceeded to open the returns made to said city council by the judges of said election, as filed with the city clerk of said city, to ascertain the persons appearing by said returns to be elected to the various offices of said city, including said office of mayor; and it appearing by said returns that said John A. Halderman had received a majority of the votes cast at said election for the office of mayor of said city, and therefore to have been elected such mayor, the said Daniel "R. Anthony thereupon at said meeting of said city council gave said 'council notice that he desired to contest the election of the said John A. Halderman, and did then at said meeting, state in writing to the said city council, the grounds of his said contest, and prayed said city council to fix a time and place for hearing and determining said contest; and said council thereupon did fix upon the 9th day of April, 1870, at 7-|- o’clock p. m. as the time for hearing and determining said contest; and within twenty-four hours after filing with said city council his notice of said contest he served upon said John A. Halderman a notice of the grounds of his contest, with the time and place at which said city council would hear and determine the same. And plaintiff further alleges that said city council met at the time above designated, and that he attended before said city council to prosecute said contest but that said city council refused to hear and determine said contest; and after hearing evidence offered by the plaintiff touching the rejection by the judges of said election of the votes of the persons above named as hereinbefore stated and alleged, and the refusal of said board of registrars to register the names of said persons as hereinbefoi'e alleged, the said city council ruled and declared that they had no power or authority to decide upon the question of the illegality of the election for mayor as aforesaid, or whether the persons aforesaid were legal voters in said city or not, or whether the board of registrars should *67have put their uames upon the list of voters of said city, or whether any legal votes had been rejected by the judges of election at said election, or upon the effects and consequences upon said election of the rejection of any legal votes by said judges of said election, and could only decide and declare who appeared by said returns made by said judges of election to have been elected; and thereupon said city council ordered the city clerk of said city to record the name of John A. Halderman as the person elected mayor of said city at said election, and to give him a certificate of such election, which was accordingly done.”
There is nothing in the foregoing that shows that the city council of Leavenworth is a judicial tribunal for the determination of contested election cases; and there is nothing that shows that the council itself ever claimed to possess any such powers. On the contrary, it shows that the city council were a mere board of canvassers, simply ministerial officers, possessing no judicial power. Substantially the council themselves so determine and declare, and there is nothing in any part of the petition showing the contrary. They substantially decide and declare that they have no power except to count the votes returned by the judges of election, to declare who received the most of them, to declare who appears to be elected; and this is all they did. They did not attempt to act as a judicial tribunal; they did not attempt to go behind the returns of the judges of the election;' they did not attempt to decide as to the legality of the returns of the election; nor did they attempt to do any act that a mere board of canvassers could not legally do.. Then how can it be said that the questions involved in this case have ever before been adjudicated? Even if the city council could act in both capacities, if they could act both as a board of canvassers, and also act as a judicial tribunal for the trial of contested election cases, it would make no difference as far as this case is concerned, for in *68this case they acted only as a board of canvassers. But the claim that the plaintiff’s petition shows that the city council can ever act as a judicial tribunal has no foundation. The most that can be claimed is, that the petition is silent upou the subject. ■ Neither do the statutes in and of themselves make the city council a judicial tribunal. Section 15, (Gen. Stat., p. 132, as amended by laws of 1870, p. 97) of the act relating to cities of the first class, which is the only statute relating to this subject, provides that “ the mayor and council of each city, * * * shall have power * * * to provide by ordinance for the election of city officers, and prescribe the manner of conducting the same, and the returns thereof, and for deciding contested elections in any manner-not in conflict with existing laws.” It will certainly not be contended that because the mayor and council have power to provide for the election of city officers that therefore the city council alone must elect the city officers; and it should not be contended that because the mayor and council have power to provide for deciding contested elections, that therefore the city council alone constitute a judicial tribunal for the trial of contested -elections. When such tribunal is creatad it must be done by ordinance. It does not appear from the petition that the mayor and council have ever exercised their power, given them by the statute, of creating such tribunal. The council cannot exercise this power alone; they cannot alone, if they would, create themselves such judicial tribunal; to do so they require the aid of the mayor. The defendant alleges in Ms answer that an ordinance was passed, constituting the city council such tribunal; but the plaintiff in his reply denies the same; and hence we cannot assume, against the denial of the plaintiff, that any such ordinance was ever passed, or that it ever had any existence. The ques*69tion of its existence is not a question of law. The court cannot judicially take notice of its existence. But the question of its existence is a question of fact which must-be tried by a court or jury, and be proved by competent and legal evidence, (Gen. St-at. 1868, 701, § 379,) the same as any other fact. Under the pleadings in this case, it must be assumed that no such ordinance ever existed, and therefore in the absence of such ordinance, that neither the city council nor any other board or persons could legally organize a judicial tribunal for the trial of a contested election.
Kingman, C. J., concurs with Valentine, J., in the foregoing opinion. By the Court:The judgment of the district court is affirmed.