State ex rel. Cherokee-Lanyon Spelter Co. v. Shufford

94 P. 137 | Kan. | 1908

The opinion of the court was delivered by

Graves, J.:

Who the party plaintiff is in this case does not seem clear. The name “The State of Kansas” appears in the title of the action, but it seems to have been used by the Cherokee-Lanyon Spelter Company for the purpose of setting aside an illegal tax which had been levied against its property. The petition contains two causes of action — one in quo warranto, and another for injunction; but they are each used as a means to the same end. The action does not appear to have been prosecuted for the purpose of disorganizing the municipality of the city of Gas for public considerations of any kind, but solely to relieve the real estate of the spelter company from municipal taxation. No interests of a* public nature seem to be involved.

The name of the county attorney appears in the body of the petition, to the effect that the action is brought in behalf of the state of Kansas, upon the relation of the Cherokee-Lanyon Spelter Company. That officer, however, does not appear to have instituted the action; he is not the attorney therein, nor does he appear to have any management or control thereof.

Actions must be brought by the real party interested in the relief sought by the suit. In actions involving public interests the state is the proper plaintiff, but such cases must be brought by some public officer authorized to represent the public interests, as the attorney-general or the county attorney. Private persons cannot use the name of the state merely to subserve their own purposes. This is the clear' purpose of the code, and the rule has been the subject of many decisions of this court. (Craft v. Jackson Co., 5 Kan. 518; Millef v. Town of Palermo, 12 Kan. 14, 16; Lewis v. Comm’rs of Bourbon County, 12 Kan. 186, 203; A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281; A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1; In re Short, Petitioner, 47 Kan. 250, 253, 27 Pac. 1005; Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558; Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397.) This is an action in which the state of Kansas has no interest, and its name as used does not conceal or change the private character of the relief sought. The Cherokee-Lanyon Spelter Company is the real party in interest, and the only proper plaintiff.

The two causes of action are improperly joined. If the action be regarded as one brought in the name of the state- to disorganize the municipality, then, the state having no interest in the private concerns of the Cherokee-Lanyon Spelter Company, the suit for injunction could not be joined with the proceeding in quo warranto. If it be regarded as an action by the Cherokee-Lanyon Spelter Company for its own private interests, then the action of quo warranto, being public in its nature, could not be joined with the suit for injunction. As applied to this action, the state prosecutes to protect the public welfare, by preventing the confusion concerning property and other rights which might result from an illegally organized municipal government. The individual prosecutes to avoid the payment of municipal taxes. These interests are incompatible, and cannot be joined. (Bartlett v. The State, 13 Kan. 99, 102.)

The same objection may be made concerning the joining of the defendants. The county treasurer and the county clerk have no interest in the quo warranto action, and the other defendants have no interest in the injunction. This is in violation of section 88 of the civil code (Gen. Stat. 1901, § 4517), which requires that the causes of action which may be joined in a petition must affect all the parties to the action.

We are unable to say that the court erred in sustaining the demurrer to the second amended petition, and this makes it unnecessary to consider the other questions discussed. The judgment is affirmed.