40 Kan. 323 | Kan. | 1888
The opinion of the court was delivered by
These are two actions in the nature of quo warranto, originally brought in this court, and which were submitted upon the same testimony and argument, and will
In 1868 the legislature bounded and named the county, and at the same time attached it to the county of Ellis for judicial purposes. (Special Laws of Kansas, 1868, ch. 14.)
In August, 1868, proceedings for the organization of Wallace county were instituted, and on the 25th of that month Samuel J. Crawford, then governor of the state, issued a proclamation reciting that it had been made to appear to him that the county of Wallace contained the requisite number of inhabitants to entitle the people of the county to a county organization, and that he had commissioned county officers, and he thereby declared and designated Pond City to be the temporary county seat.
By chapter 14 of the laws of 1871, the legislature provided that the county of Wallace should constitute the ninetieth representative district, and that it should also constitute a portion of the twenty-ninth senatorial district. The legislature of 1872 created the fourteenth judicial district, of which Wallace county was made to constitute a part, and it was then attached to Ellis county for judicial purposes. (Laws of 1872, ch. 113.)
In 1875 the legislature enacted that the county of Wallace should be included in the fourteenth judicial district, and fixed the time of holding a district court within that county; but
On the 12th day of April, 1875, an action in the nature of quo warranto was instituted in the supreme court by the attorney general in the name of the state, against B. Day, T. S. Hays, H. W. Wheeler, persons pretending to be the county, commissioners of the county of Wallace, S. W. Patton, pretending to be sheriff of Wallace county, and G. L. Redington, pretending to be county clerk of Wallace county, in which it was alleged that the organization of Wallace county was fraudulent and void in that the memorial-presented to the governor was not signed by freeholders or bona fide inhabitants; that the affidavit thereto, purporting to have been made by three resident freeholders, alleging that the county contained a population of 600 inhabitants, was false and fraudulent; that at the time there were no bona fide inhabitants or freeholders in the county; and that the organization was effected for fraudulent purposes and not for the purpose of local government. It was alleged that the county was never divided into townships, and that no first election was ever had. The prayer of the petition was for a judgment that none of the defendants were entitled to the offices,respectively claimed by them, and that they be ousted therefrom, and that the pretended organization of Wallace county is null and void, and restraining the defendants, Day, Hays, and Wheeler, from pretending to be and to act as the board of county commissioners of the county of Wallace. A judgment was entered in the case in accordance with the agreement and stipulation of the parties, in the following terms:
“This case came on regularly for hearing upon this day, and A. M. E. Randolph, relator, appeared of counsel for the state, and A. H. Case and A. D. Gilkeson of counsel for defendants. Thereupon defendants, with the consent of the state, withdrew the answer heretofore filed by them, and elected to stand upon the demurrer filed by them to plaintiff’s petition ; and said demurrer being submitted to the court, it is by said court overruled with consent of parties hereto, and the following judgment by their consent rendered for plaintiff.
“1. That none of said defendants above mentioned are entitled to the offices respectively claimed by them, and that they be ousted therefrom.
“2. That the pretended organization of the county of Wallace as an organized county, by virtue of which defendants claim their offices, as in plaintiff’s petition mentioned, is fraudulent and void.
“3. That defendants Day, Hays and Wheeler do not constitute a corporation as the board of county commissioners of the county of Wallace, but that there is no such corporation; and that said Day, Hays, and Wheeler, and all persons claiming through, under, or in privity with them, Be forever enjoined from pretending to form or to act as a corporate body as ‘the board of county commissioners of the county of Wallace.’”
By chapter 186 of the laws of 1879, the legislature declared “that the county organization of the county of Wallace, in the state of Kansas, be and the same is hereby declared null and void, and the said county organization is hereby vacated and set aside.” In the same act the attorney general was authorized to commence such proceedings in the supreme court as he might deem proper and necessary for fully setting aside the organization of the county; and further provisions were made concerning the maintenance of the action, and in respect to the judgment to be rendered in case such action was brought. The proceedings thereby authorized were not commenced.
Chapter 98 of the Laws of 1881 fixed the time of holding courts in the fourteenth judicial district, and by it the county of Wallace was attached to Trego county for judicial purposes. The same legislature created the seventeenth judicial district, and included Wallace county within the district, designating it as an unorganized county, and attaching it to Trego county for judicial purposes. (Laws of 1881, ch. 100.) In 1886 a new judicial district was created, constituted in part of unorganized counties, and Wallace county was included therein and classed as “ unorganized.” The act contained a provision that terms of the district court should be held “in the counties of Gove, St. John, Wallace, Lane, Scott, Wichita, and Greeley,
In March, 1887, the attorney general brought an action in this court in the name of the state against Stephen J. Osborn, as district judge, to inquire by what authority he assumed to hold a term of the district court in Wallace county. A demurrer was filed by the defendant to the plaintiff’s petition, and judgment was given upon the demurrer, April 23, 1887, in favor of the plaintiff, and it was there held that under the petition and the statutes of the state, Wallace was not an organized county. (The State, ex rel., v. Osborn, Judge, 36 Kas. 530.) Subsequently, and in May, 1887, A. D. Gilkeson applied to the attorney general for leave to bring an action in the name of' the state, in the district court of Trego county,
The facts recited reveal a strange inconsistency of opinion and action concerning the status of Wallace county. They show that the question has frequently engaged the attention of both the legislature and the courts, and now we are again called upon to determine what the present status of the county
The other judgment referred to, rendered by the Trego county district court in 1887, after the case of The State, ex rel, v. Osborn, Judge, supra, had been disposed of in this court, determined nothing, and is clearly void. The state never instituted nor brought the action to trial; neither was there any appearance made in its behalf when the hearing was had. There was no adverse controversy, no actual trial, nor any real decision. The hearing that was had occurred in Ellis county, where the court was without authority to try the case if it had been a bona fide controversy. If Wallace county was organized, as defendants contend, the jurisdiction was in the district court of that county; and if it is unorganized, then the jurisdiction of matters arising therein is in the district court of Trego county. “To receive credit as an estoppel, a judgment or decree must be a judicial determination of a cause agitated between real parties, upon which a real interest has been settled. In order to make a sentence there must be a real interest, a real prosecution, a real defense, and a real decision. Of all these requisites, not one takes place in a fraudulent or collusive suit.” (Freeman on Judgments, §250.) There was no adverse controversy or issue of fact between par
The only other matter presented here is the interpretation and effect of the legislative acts; and this was considered and settled in The State, ex rel., v. Osborn, Judge, 36 Kas. 530. The statutes to which we are now referred were then examined, and the conclusion was reached that the act of 1879 operated to disorganize the county. It is so declared in plain and unequivocal terms, and the subsequent legislative acts of 1881, 1886, and 1887, designating Wallace as an unorganized county, indicate the legislative view of the act of 1879, and distinctly recognize that the organization had thereby been vacated and set aside. There is no constitutional restriction upon the power of the legislature to abolish municipal and county organizations, and the existence of the power is not disputed and cannot be doubted. (Division of Howard Co., 15 Kas. 194; In re Hinkle, 31 id. 712; The State, ex rel., v. Meadows, 1 id. 90; Duncombe v. Prindle, 12 Iowa, 1; Dill. Mun. Corp. §§ 46,65.).
It is unnecessary to reexamine the-legislative act of 1879 vacating the organization of Wallace county, as we are satisfied with the conclusion reached in The State, ex rel., v. Osborn, Judge, supra, that Wallace is an unorganized county; and therefore the judgment in each of these cases must go in favor of the plaintiff, as prayed for.