| Kan. | Sep 15, 1869
By the Court,
This action was commenced originally in this court by Henry Keeler, county attorney of Jefferson county, to inquire by what authority the said Walter N. Allen continues to exercise the functions of county clerk of said county, after he has forfeited, as the said Keeler claims, the said office.
Before said action was finally brought on for trial, the said defendant interposed every possible dilatory motion, that skill and ingenuity could invent; and in the disposal of all these motions, every legal question in the case was raised and decided, and nothing was left to be decided at the trial but pure questions of fact. On these motions the court decided as follows :
Constitutional lot. The Supreme Court has original jurisdiction in proceedings in quo warranto. Sec. 3, Art 3, Constitution.
^ncíe^tto Article 29 of the code of civil procedure \_Gen. Stat, 759] merely provides a new -mode of procedure for the Supreme Court in such cases, but does not in the least affect its jurisdiction.
Jurisdiction : Extent. The jurisdiction of the Supreme Court in such cases is co-extensive with the state. See. 8, Art 3, Constitution.
Limitation op : by,Legislature. The legislature have not, and cannot limit the ° jurisdiction of the Supreme Court in such cases to Shawnee county merely; and the Supreme Court is not, therefore, forced to dismiss this action, for the reason that the cause of action arose in Jefferson county. Gen. Stat, 639, § 48.
PROSECUTOR. The county attorney, of Jefferson county, is a ■ d d f d proper person to commence and prosecute this action. [Gen. Stat, 760, § 654.] The Supreme Court will not, therefore, dismiss this action, because the attorney general of the state has made no appearance in the case, and does not prosecute the same. Gen. Stat., 986, §64.
Changing venue. The Supreme Court has no authority to send x .^g eage £0 £^0 <£[striet court of Jefferson county, or to any other court in any other county, for trial.
Petition. The petition in this case states facts sufficient x to constitute a cause of action.
County Clerk. The office of county clerk is a county office, within the meaning of the act entitled “ an act
Duties. It is the duty of the county clerk to attend the ** ° sessions of the board of county commissioners; keep a record of their proceedings; sign the record; and attest the same with the county seal. [Gen. Stat., 263, '§§ 43, 44.] He is merely a clerk in such cases for the board, having no supervisory control over, and not responsible for their actions. It is not for him to determine whether they act wisely or unwisely, prudently or imprudently, legally or illegally, at least so long as they keep within the scope of their authority.
„ sioners. It is within the scope of the authority of the board of county commissioners to determine whether an election has been had authorizing them to subscribe stock in a railroad company. And it is also within the scope of their authority to subscribe such stock, when such election has been had, and to make all the necessary orders with reference to the same. Laws ’65, 41; Laws ’66, 72; Laws ’67, 39; Gen’l. Stat., 892.
Id. over Clerks. It is not necessary that the petition in this ° x case should state that such election was actually held in Jefferson county, or that a majority of the legal voters at such election voted in favor of subscribing such stock, and issuing the bonds of the county in payment therefor. The petition shows that the board found or determined such to be the facts, and that is all that is necessary in the premises. It was the duty of the county clerk to record these proceedings, whether he considered them true or false, legal or illegal.
Office by Forfeitoe. If the county clerk willfully refuses to record ° * such proceedings of the board of county commissioners, and willfully refuses to act as clerk for the board, and willfully locks up the records and seal of the'
Removal. A county clerk who has by misconduct for" * ** feited his office, may be removed therefrom by a civil action, in the nature of a proceeding in quo warranto, in the supreme court. Gen. Stat., 294, ■ § 180; also page 759, § 653.
Inspection op Records. The counsel for the plaintiff, upon proper dex / x x x mand, has a right to an inspection and copy, or permission to take a copy of the county records, within the custody of the said defendant, containing evidence relating to the merits of this action, and after the said defendant has for more than four days persistently refused such inspection and copy, the court upon motion and notice to said defendant, and sufficient evidence of such demand and refusal, will, under section 368 of the code, [Gen. Stat. 699] order that said defendant give to said counsel for the plaintiff within a specified time, an inspection and copy, dr permission to take a copy of said records.
Jury: Common Law. At common law, in a proceeding in quo war- / ± ox ranto, the respondent was probably entitled to a jury for the trial of questions of fact. People v. Doesburg, 16 Mich., 133; Ang. & Ames on Corp., 741, and notes; State v. Messmore, 14 Wis., 116; 3 Stephens’ Nisi Prius, 2429, et seq.; People v. Richardson, 4 Cowen, 97, and note A.
If the respondent at common law was, in such cases, entitled to a jury trial, the defendant in a civil action, in the nature of a proceeding in quo warranto, is probably
id- uhdm statute. It is the opinion of this court, that in all orig-proceedings, the court has power to send issues of fact to a jury for trial, whether as a matter of strict right, either party is entitled to a jury trial or not. Gen. Stat., 680, see. 267; and authorities cited, ante.
Without deciding the question whether the defendant, as a matter of strict right, is entitled to a jury trial or not, but as he demands to be tried by a jury, we shall send all issues of fact in this case to a jury for trial.
EilrANNKLING. By granting the defendant a jury trial we do d CD ° d J not think that we force ourselves to dismiss the action for want of power in the court to empannel a jury. Gen. Stat., 538, § 23; Ang. and A. on Corp., § 741; State v. Messmore, 14 Wis., 115.
„ „ county, As the jurisdiction of this court is co- extensive ^pfch the state, we probably have power, exercising a sound discretion, to order a jury from any county of the state.
We shall not in our discretion order that the jury be taken from Jefferson county, where, as is admitted by counsel on both sides, the facts of the case have been generally discussed so that an impartial jury could not easily be obtained, and where good grounds for a change of venue exist, if the suit had been instituted there. But as no reason seems to be shown why an impartial jury cannot be obtained from Shawnee county, and as it is most convenient for us to obtain a jury from Shawnee county we shall order that the writ for the jury issue to
If any good reason can be shown why an impartial jury cannot be obtained from Shawnee county, we shall order the writ for the jury to issue to the sheriff of some other county.
Continuance. A continuance will not be granted to the defendant to enable him to obtain the testimony of a witness, and to obtain certain books, papers and records in the custody of said witness, when the said witness is produced in court, with all the said books, papers and records, ready and willing to be examined as a witness, and also ready and willing to allow said books, papers and records to be used as evidence.
Affidavits. The court will not consider affidavits read and filed in the case upon which nothing is asked, and which are not applicable to any motion, issue, or proceeding in the case.
After all these questions were decided on preliminary motions, the defendant withdrew his application for a jury, and abandoned the case altogether. The plaintiff then waived a jury, and the trial proceeded before the court. The allegations of the petition were amply proved.
The court therefore finds, as a conclusion of law, that the said defendant, through his said willful misconduct, forfeited his said office, and it is the judgment of this court, that he be removed therefrom.