Freeland v. Stillman, 49 Kan. 197

Freeland v. Stillman

49 Kan. 197 | Kan. | 1892

The opinion of the court was delivered by

Johnston, J.:

This was a proceeding to contest an election held for the purpose of voting bonds with which to build a school-house in District No. 73 of Atchison county, Kansas. It was brought by four electors of the district against the officers, and in their petition they allege that the district was illegally organized, and that the election held to vote bonds was unlawful, for the reason that the notice given of the election was not such as required by statute, and that it was fraudulently called and held on Saturday, the 5th day of September, 1891, when it was represented to the petitioners when their signatures were obtained that an election would be called for Monday, September 7, 1891, and that a large majority of the electors of the district were persons of the religious faith peculiar to the Seventh-day Baptist church, who observed Saturday as their Sabbath, and who could not conscientiously attend to secular duties on Saturday, and that the pretended election *206was purposely called for Saturday to prevent these electors, the most of whom were opposed to the bonds, from participating in the election ; and it was further alleged, that the proposition to issue bonds did not receive the affirmative vote of a majority of the electors in the district. The officers of the district answered that the district was legally organized; that the election was properly called and legally held, after due notice had been given. They denied the charges of fraud, and challenged the right of the plaintiffs in the action to maintain the same. The plaintiffs below, finding that the judge of the district court of Atchison county was absent from the district, applied to the judge of the district court of Leavenworth county to grant a temporary injunction, who granted them a restraining order until the judge of the district court of Atchison county could hear the application for the témporary injunction. Afterward the parties appeared before the judge of the district court of Atchison county and continued the hearing for the temporary injunction from time to time, and agreed that the restraining order should remain in force until the final trial and judgment, at which time a perpetual injunction was granted. It is now contended that the restraining order granted by the judge of the district court of Leavenworth county is without force or validity, for the reason that it was granted outside of Atchison county, and outside of the district in which the action was pending. This objection, however material it might have been if seasonably made, is no longer important or available to the plaintiffs in error. It appears that they recognized the order as valid, and agreed that it should remain in force until the final hearing and judgment in the case. Then, again, the restraining order, which seems to have been treated as a temporary injunction, has performed its office, and the permanent injunction having been granted, it is too late to raise objections against the regularity of the steps taken in obtaining the temporary restraining order.

The right of the plaintiffs below, who describe themselves as electors of the district, to prosecute this action is the im*207portant question presented for decision. It is conceded that they have no special or peculiar interest in the controversy more than is possessed by other electors and tax-payers in the district, and their right to maintain the action is based solely upon the provisions of ¶ 2772 of the General Statutes of 1889. It provides for contesting certain elections at the instance of aggrieved electors by special proceedings in the district court. It is limited in its application, however, to elections held in “county, township, or municipal corporations,” and, in our opinion, it furnishes no authority for an elector to contest an election held in a school district. Although a school district possesses corporate capacity, and is declared in the statutes to be a body corporate, it does not fall within the definition of a municipal corporation. A school district belongs in the same class as counties and townships, which “are denominated in the books and known to the law as quasi corporations, rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions— agencies in the administration of civil government — and their corporate functions are granted to enable them more readily to perform their public duties.” (Beach v. Leahy, 11 Kas. 23.) Cities, towns and villages are municipal corporations proper, and the distinction between municipal corporations and quasi corporations is clearly pointed out in the case just cited. (See, also, Eikenberry v. Township of Bazaar, 22 Kas. 556; Marion County v. Riggs, 24 id. 255; Dill., Mun. Corp., § 20; 15 Am. & Eng. Encyc. of Law, 952.)

It is said that in the broader sense municipal corporations include all public corporations, including quasi corporations, such as counties, townships, and school districts, and the title of the act is referred to as an evidence that this signification was intended by the legislature. The fact, however, that counties and townships were specifically named in connection with municipal corporations forbids such an interpretation, and shows clearly that it was not the intention of the legislature that municipal corporations should include quasi corporations like counties, townships, and school districts. If the *208legislature had intended that the term “municipal corporations ” should be extended in its meaning so as to embrace all quasi corporations, counties and townships would not have been mentioned; and having named these, it is evident that the legislature intended to exclude all other quasi corporations. School districts not being included in the provisions of the act, it follows that the plaintiffs below had no right to prosecute this action. It could have been brought by the attorney general, or the county attorney of Atchison county, in the name of the state; and if either officer should intervene hereafter, substitution may be made in the district court.

We have examined the other objections urged by plaintiffs in error, and find nothing substantial in them, and, were it not for the fatal defect which has been pointed out, no reason is seen why the judgment might not stand.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.