*1 45,238 Nо. Clyde Fransham, Henderson, Wright, R. E. Fred L. William D. Voight G. A. B. and Appellants, Campbell, Trent, Kamerick, Mayor City McDowell, City, Joseph H. Kansas Kan City sas: Swarner, Earl B. Finance Commissioner P. City, Kansas, Regan, Kansas Street Commis Joseph Appellees. City, Kansas, sioner of the of Kansas 131) P. 2d (451 Opinion filed March Fields, City, argued cause, Carson, H. of Kansas and David W. John City, appellants.
of Kansas was with him the briefs Williamson, Pоwers, City, Blake argued and Edward H. both of Kansas cause, Brenneisen, Jr., City Attorney, Joseph Bukaty, and C. W. A. Assist- City Attorney, ant appellees. were with them on the briefs B. James Flack, City, Kansas counsel. opinion delivered The plaintiffs-appellants describe themselves as resi- Kaul, J.: dents and Kansas, City of Kansas in their City, peti- tion set out three causes of action against defendants-appellees, McDowell, Joseph H. Earl B. Swarner and Joseph P. Regan, respec- tively, the Finance Mayor, Commissioner and Street Commissioner of the City of Kansas City, Kansas. Issues were joined by the de- fendants’ answer.
Defendants allege failed to state claim against de- fendants could be and that plaintiffs Specific have no sue. answers allegations three counts of were incorporated the answer. of and two
Depositions defendants were taken opposing parties. Thereafter, a motion by plaintiffs for summary judgment as to III and a motion defendants to dismiss as to all were heard court. counts Plaintiffs’ motion for summary (b) K. A. 60-212 was overruled. As authorized judgment by Laws of Section now (amended Chapter *2 defendants’ motion to dismiss Supp. [b]), appаrently was treated as a for and as summary judgment motion sustained to all three counts of plaintiffs’ petition. filed a memorandum decision which reads perti-
nent as part follows: respect counts, “1. That with to each of these there is a to failure state a granted. claim which relief can be authority plaintiffs “2. That taxpayers there is no them as otherwise, respect to maintain with to of the three counts. plaintiffs any special “3. None of the interest as citizens or respect alleged with to the matters one of the three counts enjoyed by public generally. which are not respect I, part “With to Count there was some indication on the plaintiffs discovery passing upon that there should be further before the de- apparеnt fendants’ motion to dismiss. The court finds that it is on the face of discovery supply any that further would not additional facts which possibly could part plaintiffs. add to the merit of claim on the these “The sustained, motion of the for defendants to dismiss is and the motion summary judgment respect filed on behalf of to Counts with and III is overruled.” Thereafter, plaintiffs perfected as error each this аppeal urging finding of the trial court and as in over- a fourth claim error point ruling plaintiffs’ motion for an for order defendants to requiring pay that portion of the record on included appeal unnecessarily in the joint designation agreed to parties.
In Count I plaintiffs and allege wantonly defendants willfully, fraudulently used tax for with to the money their own gain institution by city, sponsor, program summer Neighborhood Youth for twelve Corps. program operated weeks during June, of a con- July August result tract Labor, between the and the States Department United authorized by Act, the Economic enacted Opportunity by Congress in 1964.
Plaintiffs defendants Frank Cottita to administer allege administrator, the youth and that as program under direction defendants, supervision seventy-sevеn ineligible he put per- sons on the purpose defendants’ strengthening payroll machine and for political defendants’ own political aggrandizement. Plaintiffs I that an Fed- investigation by eral Government revealed the to seventy-seven persons be ineligible and, as a reason of to qualify impoverished persons failure back some investigation, agreed pay
rеsult of defendants $7,300 tax funds. to the Federal out Government be
As to Count that defendants plaintiffs pray required pay $7,300 $25,000 back each for exemplary damages be assessed be paid city treasury.
Counts II and III defendants petition allege unlawfully charter ordinances salaries and adopted pensions. In Count II that defendants plaintiffs pray required pay back to the the аmounts collected due to raises in sal- city treasury aries from the of a charter resulting alleged adoption unlawful ordinance raising their salaries.
In Count III enjoin collecting seek to defendants pensions those of the ordinance pray portions creating elected officials be declared unconstitutional. pensions counts, In all plaintiffs rely primarily alleged violations *3 statutes. for relief in the specific Although plaintiffs pray form damages, recovery money injunction, allegations force the that the conclusion is in the generally nature of quo seeking warranto to oust the defendants from ex- unwarranted In their brief ercising alleged power. are indefinite as to their position. They assert to sue under either, both, or S. A. quо (K. or as tax- 60-1203) aggrieved S. A. payers (K. 60-907). consider
We shall first whether there was a failure to state a claim which relief could be in Counts I and II. upon that, rule, a argue general Plaintiffs’ a public official is liable for moneys fraudulently misapplied, misappropriated, or lost. (43 Officers, 308, Am. Public Jur., cite the pp. 113.) They case of § Johnson, School Dist. No. 2 v. Consolidated Joint general 2d that the rule has been recognized P. to show assertion, entirely Plaintiffs are Kansas. correct this applied however, the here is whether the proper has been pursued. case, cited an by plaintiffs,
The involves action filed pur- Johnson of G. S. 1943 Supp. to the provisions suant statute mentioned a means provides 72-1016). recovery breach of condition of bond a evеnt of the treasurer district. The statute specifically of a common-school provides shall, any qualified or county superintendent voter of the dis- an action to recover on the bond institute if the may, trict director action. prosecute or refuse to shall neglect of the school district the rule which that, notwithstanding In the it was held case Johnson maintaining questioning suits precludes generally individuals that the but officials, be no doubt there can action of public singly either that privilege grant has legislature power G. S. 72-1016. Supp. in G. S. 1943 or as was done collectively, injunctive against K. S. A. 60-907) providing 60-1121 (now official is out pointed tax acts of illegal levies illegal to carve out legislature illustration of of the rule. general exception Johnson, au- statutory based specific an action to recover citizen to maintain given
thorization district, support for the benefit of school lends moneys I and II. with to Counts on the of K. Plaintiffs S. A. 13-532 as rely primarily of action in causes Counts and II. establishing basis K. S. A. 13-532reads as follows: employees of “All elected and officers and shall be duty,
personally proper performance of his or liаble to such for the her city, prescribed act and ordinances of the or for the creation this contrary of this act or the ordinances indebtedness to the funds, thing property city, misapplication or and for the value care, subject disposal, or her committed to or to his his her city attorney prosecute otherwise; duty vote or and it shall be the city, section, all violations of this in the name and on behalf of said Every request taxpayers of said officer written three citizens and city, pay any shall, approve, allow or demand who with intent to defraud the treasury shall be liable this act or ordinance not authorized individually of the demand and on his official bond for the amount allowed, illegally approved, paid.” so procedure A of the statute reveals well-defined reading *4 official by of funds recovery city misapplied on behalf city provided by citizen is or A employee. remedy an to prosecute duty imposed attorney mandatory city who are tax- on three citizens any the written request request here allegation There is payers any nor is evidence to that attorney, any bеen made of the having before the court. Plaintiffs sug- effect adduced from depositions in an action attorney prosecuting their brief the should gest officials. If the rather than the defendant against, defending, a statutory duty, plaintiffs has failed to city attorney perform in than be maintained this action. sought that From what has been said it is clear that have failed in and II to a claim rеlief could be state based supra. defendants,
In II of that petition plaintiffs an adopting ordinance an increase their salaries providing elected, had term of office for which been during violated of K. A. 13-1802. The text read as caption follows: “Holding commissioners, other office. No member of the board of or the mayor, profit shall hold office of or trust under thе laws of state or the States, any county mayor office; United or hold or other nor shall the or by, commissioner ever be elected or office created or compensation commissioners, by, of which was increased or fixed board of thereof, years expiration while he was a member at two until after the least
after he has ceased to abе member of said board.” First, purpose this statute is twofold. it prohibits mayor posi- commissioners from offices or holding other public Second, tions. or prohibits holding any position office them, or a increased position salary created for which the them, until or years mayor two after expiration serving commissioners. There is statute nothing which prohibits salaries, fixing changing during eithеr by raising lowering, sections, the term of office S. A. being Succeeding then served. K. 13-1803 and for provide mayors the salaries of commis- according sioners to the classification and population the various cities. With smaller cities salaries are fixed pro- 13-1803; visions as to cities a maximum larger only compensation mayors and commissioners is fixed 13-1804. It cities, Kansas, follows thаt in the case of larger such Kansas City, salaries, it is that necessary within limita- appropriate statutory tion, be fixed ordinances.
In allegations of Count II we find no violation of K. S. A. 13-1802 which gives rise to a claim upon which relief could be granted as sought by plaintiffs.
In Count III plaintiffs again allege defendants violated the pro- of K. visions S. A. 13-1802 by adopting ordinance providing lifetime themselves. Plaintiffs further pension allege the ordi- in that taxpayers nance to be unconstitutional were denied due of an being deprived of law process opportunity vote on the question.
In theff answer defendants explain the two Charter Ordi- *5 old 3 and attacked amendments nances were (Nos. 4) of Laws of created and authorized pension system, 121, Defendants 13-1497). Section 1 Chapter and since frozen in 1956 out that the old pоint pension system Employees Public then new are enrolled in the Kansas employees system. Retirement than the old System city pension rather Charter contained in city pension system, to the old amendments employees 3 and to all officers Ordinances Nos. applied Defendants system. under the old pension who were (74) and similar is sound system the old city pension threat of а is no and that there municipal pension other programs thereof, by plaintiffs. as claimed drain of funds reason answer charter ordinances in were attached question as exhibits. out, A. 13-1802 mayors
As we have K. S. pointed prohibits while offices or positions commissioners from other created by in office or from within two years, positions occupying, them, We fail to see how while or commissioners. serving mayor prohibi- of the ordinances in falls within the adoption tions of 13-1802. process
Plaintiffs further of constitutional due allege deprivation and III. ordinances attacked in II adoption The ordinances charter with salaries were dealing pensions ordinances Art. Sec. 5 of home powers authorized [Cities’ of the Constitution of the of Kansas. Thе section re- State rule] for a referendum on charter ferred to prescribes procedure of ten of the electors of the percent ordinance on petition is made that Sec. 5 No contention the ordinances [3].) (Art. in conformance with constitutional requirements. were not published no effort was made by plaintiffs Apparently, on the ordinances in No question. justifiable to seek referendum issue constitutional due is made out involving process allega- III. tions either Counts a claim in
Our conclusion have failed to state three counts in their which could be petition, upon an affirmance of the trial court’s dismissal of compels granted, Nevertheless, we shall discuss other briefly points raised action. on appeal. that none finding trial court’s has believe the
We citizen or taxpayer, interest is not any special *6 the record. by fully supported is the generally, enjoyed by public that of as merely the status of established The petition In their depositions of the city. and taxpayers residents interrogated when Wright), Henderson plaintiffs (Fransham, of tax- only their status described subject, the payers. officials the acts of challenge public warranto to in quo
Capacity are taxpayers, or persons fact a person from the not arise does injury personal some peculiar suffered whether is alike. all other and apart separate were first stated in from which it stems rationale rule and The * Co., 518: Ed.) 5 Kan. (2nd v. Jackson Craft person, peculiarly he has his injury affects a is one that If the “. . . alike, community action; is right thеir the whole if it affects through appointed agencies. proceedings its the state citizen, motion, his own on his in case where To own “. . . allow every person, to interfere with and as that of other interests are the same judicial officers, compel litigate public them to contest the acts of act, open county each official the door to endless tribunals of the over would contingent rights; litigation, litigation and about uncertain and and a over now, may pay though plaintiff tax-payer he not be the tax to is when may affected, peti- nor does the these claims is levied. His interests never be they necessarily tion show that ever will be. e private citizen, such, pub “. . . cannot sue in his own name for injuries rights every lic where his and interests are the same as those of * * * * community.” (pp. 521, 522, 525.) member of the The rule has been consistently followed this court down State, 174, through 674, Rowlands v. 187 Kan. 354 P. 2d which sets out a history of the rule and a series of adhering cases commencing with the decision in The rule most recognized was recently Craft. in Babcock v. Kansas Kan. City City, 197 419 P. 2d Commissioners, Tripp Board County 362 P. 2d
Plaintiffs contend the rule has been altеred to broaden the ca- pacity of private individuals in quo the addition in S.K. A. 60-1203 of the words “resolution” and “ordinance” which were not included in the statute. prior (G. 60-1603.) The effect of the rearrangement statutory language and addition 60-1203, words “resolution” and in supra, “ordinance” considered in Babcock v. Kansas City, supra. In Babcock challenged. annexation ordinances wеre The action was held to be in effect an attack on the corporate integrity individual to of a private beyond power and as such was that, orga- since the fact of corporate argue maintain. Plaintiffs case, to maintain instant nization is admitted Bab- The in Babcock. inferred from may from a special to sue arising did not cock case deal with аAs prop- community general. interest other than that of the annexation, Babcock probably owner, proposed affected erty his action was construed He failed because met this requirement. addition of the words integrity. an attack on corporate to be “office, franchise supra, and “ordinance” “resolution” statute, only was held in the prior set out or corporation,” new and not to create of action of the form broaden field interest of a special requirement taxpayer. rights was not eliminated. generally enjoyed by not *7 commentary Gard in his 60-1203, supra, In on commenting Judge says: private person able to show that necessary be event that “It is still (or special has been an inva- peculiar that there has a interest and
he (Gard, generally. right) enjoyed . . .” sion of not or suffered the 674.) Procedure, Annotated, p. Kansas Code of Civil of interest Since neither nor make claim plaintiffs other than that of the whole community
maintain an action under the of 60-1203. provisions quo III, out,
In the claim of falls plaintiffs as we have pointed act because of failure to facts unlawful undеr establishing state 13-1802, However, if had met supra. then, in the an unlawful act viewed requirement pleading most III have stated a light, favorable in Count pleading may G. S. supra cause of action under the (formerly authorized to 60-1121) under which are private taxpayers mentioned, attack In this illegal levies. the statute considering court has maintain an may declared times that many any person G. S. K. S. A. relief under injunctive matters affect alleges wrongful illegal when he 60-907) his taxes. (See Tripp by unlawfully increasing his pocketbook Commissioners, and cases cited therein.) County supra, Board of trial overruling claim error Lastly, the record defendants. against expense motion to tax some of motion the trial court stated: ruling In its announcing premises, parties court, being fully finds thаt en- advised “The day October, 1966; stipulation designation joint on the 14th tered into a plaintiffs’ summary prior had motion for said date the court before summary judgment judgment motion to dismiss. Motion for and defendants’ court, and motion to dismiss was overruled sustained. The court was depositions having prior ruling it all of the heretofore taken had before ruling, therefore, plaintiffs’ in such court finds that were considered expense against some of the the record motion to tax defendants be and should be overruled.” the same court, trial
As the record here noted on a compiled Even joint designation parties. though some portions of the included are irrelevant to the depositions points on under appeal, related, the circumstances cоurt’s ruling cannot said amount to an abuse of discretion. is affirmed. judgment While I J., concurring: concur in the affirmance of the
Fontron, judgment, lower court’s I do not wish to be understood from any- said in the thing opinion relative to Babcock v. City Kansas City, 419 P. 2d as agreeing with this court’s decision in that case. My views interpretation 60-1203 are set out in the dissenting opinion in that case com- mencing page joins J., foregoing concurring opinion.
Schroeder,