School District No. 9 v. Brand

81 P. 473 | Kan. | 1905

The opinion of the court was delivered by

Smith, J.:

The question is squarely presented in this case whether a householder of a school district may institute and maintain an action against the treasurer thereof for a misappropriation of the funds of the district, if the director neglect or refuse to prosecute the action. Section 6174 of the General Statutes of 1901 reads in part as follows:

“And said bond [district treasurer’s bond] shall be filed with the district clerk, and in case of the breach of any condition thereof the director shall cause a suit to be commenced thereon in the name of the district, and the money collected sháll be applied by such director to the use of the district, as the same should, have been applied by the treasurer; and if such director shall neglect or refuse to prosecute, then any householder in the district may cause such prosecution to be instituted.”

It is conceded by counsel for defendant in this case that this section authorizes any householder of the district to institute an action. They say that possibly he could institute but he could do no more, and they resort to the dictionary to find definitions of the word “institute,” and cite as one of its synonyms “commence.” It will be observed by a careful reading of the foregoing quotation from the statute that the director is only authorized to commence an action in the name of the district. It is further provided what he shall do with the money collected, so that the authority of the director, and upon his refusal the authority of any householder, to begin an action in the name of the school district against a treasurer that has committed a breach of the conditions of his bond is identically the same. To commence is to institute, and to institute is to commence. It would be a very strange construction of this statute to hold that the director is authorized to commence an action but is not authorized to maintain or prosecute it to final judgment. It would be equally strained so to construe it that a householder is authorized to institute an action, under the prescribed conditions, but is not authorized to maintain it. The breach of the condition •of his bond having been alleged against the treasurer, and there being no denial in any pleading either of this charge or of the allegation that the director had neglected and refused to commence an action to recover the money claimed to have been wrongfully paid out, it seems somewhat remarkable that the director should have been even heard upon a motion to dismiss, without any attempt to purge himself of the charge of neglecting his duty as an officer.

Perhaps it is somewhat anomalous that an individual householder should be authorized by the statute to begin an action in the name of a school district without any authority from the school-district board or from a school-district meeting, but such is the provision of the statute. The government of a school district, as. provided for by statute, is generally quite democratic. Every householder in the district is supposed to be interested in the public schools, and in safeguarding the funds provided by law for maintaining them. The legislature has expressly provided that in cases of this nature, where the director neglects or refuses to prosecute, any householder may proceed; and we are asked to place a limitation upon this power by holding that he must have the consent or authority of the director, or at least of a majority of the voters expressed at a public school meeting. This may be a wise suggestion for the legislature to consider, but as the act is unequivocal in its terms we cannot read into it any such limitation. It is true that the power thus conferred upon a householder might be abused, and a householder might bring an action without cause, when no one else in the district desired that it be brought. This is equally true, however, of the director. Any power, wherever lodged, may be abused; but in a small community like a school district, where every householder has a more or less intimate knowledge of all of the affairs of the district, and where the people generally have pretty full information as to the merits of any claim that might be asserted against their treasurer, and pretty full means of knowing the motives of any householder who> may assume to bring an action in the name of the school district, we may reasonably presume that the legislature thought there was little danger of the abuse of this power conferred.

As the defendant below was in default at the time the motion of the plaintiff for judgment on the pleadings was filed, and even at the time it was heard, the motion of the plaintiff should have been granted; and. we would be justified in remanding the case with instructions to render judgment in favor of the plaintiff below for the amount claimed. The action, however, is somewhat of a public nature, and the question, as to the authority of a householder to proceed without express authorization from the school district is evidently raised in good faith, and, we believe, for the first time in this court. We shall, therefore, only order that the judgment below be reversed and the case remanded, with instructions to grant a new trial, after the court shall have allowed such pleadings as the-parties may ask leave to make and the court may think proper. It is so ordered.

All the Justices concurring.