Bartlett v. State

13 Kan. 99 | Kan. | 1874

The opinion of the court was delivered by

Valentine, J.:

This was an action in the nature of quo warranto, brought by the county attorney of Cloud county in the name of “The State of Kansas,” to have determined by what authority certain persons were attempting to exercise the functions of certain city offices of the city of Clyde, Cloud county. The city, of Clyde is a city of the third class. Said persons were attempting to exercise the functions of the offices of mayor, police judge, and city council of said city. These facts, together with others, were set out in full in the petition filed by the county attorney. The defendants demurred to this petition on the following grounds, to-wit: 1st, There is a defect of parties plaintiff; 2d, The petition does not state facts sufficient to constitute a cause of action in favor of said plaintiff and against said defendants. The court overruled said demurrer, and the defendants below, plaintiffs in error, now assign that ruling for error.

1. Quo warranto. Who may be plaintiff. I. 'Whenever any person usurps an office, and attempts to hold it Wrongfully and without any legal authority, as the county attorney alleges that the defendants have done and are doing in this particular case, then we suppose that not only the state, but also any individual who may be entitled to hold the office, may maintain an action in the nature of quo warranto to oust such usurper from such office. But each has a separate action, and the two together do not have a joint action. Neither is a necessary party when the other commences the action. Hence, “although the state is the only plaintiff in this case, and the persons entitled to hold the different offices are not made parties thereto, still there is no defect of -parties plaintiff. But as we shall state more fully hereafter, the petition shows that no person is entitled to hold any one of said offices.

2. City officers; action in name of state. II. It is claimed that the petition below does not state facts sufficient to constitute a cause of action, and the only reason given therefor is, that the action is not prosecuted in the name of the real party in interest. Now as we have, before stated, any individual in this state entitled to hold an office has such an interest therein that he may maintain an action in the nature of quo warranto to oust any intruder therefrom, and he may maintain the action in his own name and not in the name of the state. (Laws of 1871, page 277, § 2.) But this right of action on the part of the.individual does not oust the state from its right of action. Their separate rights of action are founded upon separate and distinct interests. The individual may prosecute the .action because he is interested in the emoluments of the office, and entitled to receive the same. The state may prosecute the action because it is interested in the good government and general welfare of all its citizens. It is the duty of the state to see that no intruder shall usurp and hold an office that should be legally filled by some other person. And the protecting care of the state extends to cities of the third class, as well as to any other portions of its territory. In this particular case however it is not shown that any person is entitled to hold any one of said offices. On the contrary, the petition shows that no one is entitled to hold or to exercise the functions of any one of said offices. Why this is so, is not stated. Perhaps the persons elected to fill said offices have refused to qualify, or have died, or resigned, or removed from the city. But whatever may be the reason, and whether the reason is sufficient or not, still the power of the state to remove intruders from office is ample. Where there is some person entitled to hold the office, the county attorney may commence the action in the name of the state, but in such a case “he shall set forth in the petition the name of the person rightfully entitled to the office, and his right or title thereto.” (Laws of 1871, § 2.) But where no person is entitled to hold the office, he may still commence the action in the name of the state, but simply stating, as the county attorney has done in this case, that no person is entitled to hold the office. We suppose it will hardly be claimed that where there is no individual who can comménce an action to oust an intruder from office that the state is also powerless in the matter. We suppose it will hardly be claimed that where there is no individual who is competent to bring the action, the people of a city may be governed by Usurpers and intruders without any legal means for relief.

3. Power and duty of county attorney. III. It is claimed that the county attorney has no right to commence or prosecute this action. We think he has. Section 136 of the act relating to counties and county officers provides that “ It shall be the duty of the county attorney to appear in the several courts of their respective counties, and prosecute or defend, on behalf of the people, all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state, or their county, is a party, or interested.” (Gen. Stat., 284.) And § 654 of the civil code provides that “When the action [in the nature of quo warranto~\ is brought by the attorney general or the county attorney of any county of his own motion, or when directed to do so by competent authority, it shall be prosecuted in the name of the state,” etc.(Laws of 1871, page 277, § 2.) The county attorney in a case like this may prosecute the action upon his own motion. If he cannot do so, who is there to authorize him to do so ?

Of course we know nothing of the facts of this case except as they are stated in the petition of the county attorney, and for the purposes of this case such statements must be taken as true.

The judgment of the court below is affirmed.

All the Justices concurring.