51 Kan. 300 | Kan. | 1893
The opinion of the court was delivered by
This is a proceeding in quo warranto, brought originally in the supreme court, and involves only the title to the office of treasurer of a school district in Gray county. It appears that, at the annual meeting in 1891, Lloyd Litle was elected treasurer of the district for a term of three years, and at that time W. F. Castner was director and J. T. Dean clerk' of the district. In order to secure employment as teacher of the district school, Dean resigned as clerk, and T. B. Seaton was appointed in his stead. Without any meeting of the district board, Gastner and Seaton agreed to employ Dean as teacher, and a written contract to that end was entered into between these two members and Dean. Having no certificate authorizing him to teach, Dean obtained from the county superintendent a temporary certificate, but no written request therefor was made by the district board, as the statute requires. Litle opposed the employment of Dean and protested against his faking charge of the school, and insisted that the contract made was illegal. Notwithstanding this opposition and pro
Has the plaintiff any right to the office in question or to maintain this action? He cannot employ quo warranto for the purpose of ascertaining whether Litle has been guilty of neglect or refusal to perform any duty required of him and to declare a forfeiture therefor. Such a proceeding can only be prosecuted in the name of the state, and at the instance of the attorney general or county attorney. The plaintiff seems to be proceeding upon the theory that the county superintendent may summarily, and without notice to the defendant or hearing, determine for himself that a school officer has neglected his duty, and, having reached that conclusion, is authorized to appoint some one in his stead. The statute upon which the claim is based provides as follows:
“Every person duly elected to the office of director, clerk or treasurer of any school district, who shall refuse or neglect, without sufficient cause, to qualify within 20 days after his election or appointment, or who, having entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit his right to the office to which he was elected or appointed, and the county superintendent shall thereupon appoint a suitable person in his stead.” (Gen. Stat. of 1889, ¶ 55.94.)
It will be observed that this section provides that a neglect or refusal to perform his statutory duties is ground for forfeiture of a right to the office, but it does not declare that it shall thereby become vacant, nor expressly vest the county superintendent with the power of removal. If for any reason the power of removal is lodged in the county superintendent, nothing in the statute or in the nature of the office would imply that the power of removal is discretionary, and may be exercised without notice or hearing. Where an office is held at the pleasure of an appointing power, and also where the power of removel may be exercised at its discretion, it is well settled that(the officer may be removed at any time without notice or hearing. (The State, ex rel., v. Mitchell, 50 Kas.
The defendant was in possession of the office, holding it by as good a title as that of any other officer of the state who has been elected by the people. He was charged with negligence and misconduct, and shall he be condemned unheard? He refused to sign or recognize orders for the salary of the teacher, and it is admitted that the contract with the teacher was illegally made. It is true that a majority of the board, at a legal meeting held about three months later, tried to cure the illegal action. Whether they succeeded or not, and whether the refusal of Litle thereafter to sign the warrant can be held to be a neglect of duty which would justify removal, must be inquired into and determined by some competent tribunal or officer. Whether the grounds of forfeiture prescribed in the statute exist must be ascertained, and this
The plaintiff has shown no right to the office, and judgment must therefore go in favor of the defendant.