110 Kan. 600 | Kan. | 1922
The opinion of the court was delivered by
This is an original proceeding in mandamus to compel the rural high-school board to call a special election in the district to vote on the disorganization thereof. It is alleged that a proper petition, signed by two-fifths of the legal eleotors residing within the district, had been presented to the board asking that it call an election to vote on the proposition of disorganization, but that they had failed and refused to issue the call.
It appears that the organization of the school district was authorized by an election held on September 13, 1919, only three votes ■ being cast against the proposition. Subsequently an election was held upon the call of the county commissioners to vote upon the question of the issuance of bonds to build a schoolhouse in the district, at which a majority voted in favor of the bonds. In a subsequent legal proceeding it was held that the commissioners of Doniphan county had no authority to call the election, and hence another petition to the rural school-district board was presented, upon which an election was called on July 25, 1921, and the majority of the votes were cast in favor of the issuance of the bonds. In pursuance of that authority the board entered into a contract for the sale of the bonds and they have since been issued and sold. Since the organization of the school district a school has been main
The question presented on this application is whether or not the plaintiffs have legal capacity to maintain the action. The averment in that regard is that the petitioners are citizens of Doniphan county, Kansas, are residents within the rural high-school district number 5, are taxpayers and electors in said district, and that each of the petitioners is the head of. a family, residing in said district, and having a child or children of high-school age, and by reason of that fact are especially interested, in the subject matter of the action. The defendant contends that on their own statement they do not show such a special interest as authorizes the mantenance of the action. The extraordinary remedy of mandamus is given to compel the performance of public duties, and ordinarily where public rights are to be subserved the remedy can only be invoked by the county attorney or attorney-general, the officers entrusted with the discretion and authority to represent the public in the courts. (Bobbett v. The State, ex rel. Dresher, 10 Kan. 9; Nixon v. School District, 32 Kan. 510, 4 Pac. 1017; Clark v. Comm’rs of Montgomery Co., 34 Kan. 632, 9 Pac. 756; Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 40 Pac. 326; Titus v. Sherwood, 81 Kan. 870, 106 Pac. 1070.) An'exception to the general rule is made where the person who seeks the remedy has a special or peculiar interest of his own independent of that which he holds in common with people generally. What interest do the plaintiffs have separate and peculiar' to themselves to compel officers to perform the public duty of calling an election? That must be determined from the averments in their petition. The purpose of the proceeding is as we have seen to compel the board to take the preliminary steps towards the disorganization of the district. They allege that they are residents, citizens, electors and taxpayers of the district, but obviously those holding these relationships have no special interests not held by other residents, citizens, electors and taxpayers of the district. In an effort to show that they stand in a peculiar and independent attitude, having an interest not held in common
“To allow any citizen to litigate with public officers the propriety of their acts, exposes them to constant litigation. If one may, so may another. If one act may be litigated, so may all; and so the time, attention and thought of the officer diverted from the duties of his office to the defense of harassing suits.” (Bobbett v. The State, ex rel. Dresher, 10 Kan. 9, 14.)
The motion to dismiss the action brought by plaintiffs must therefore be sustained.