State v. Anderson, 5 Kan. 90

State v. Anderson

5 Kan. 90 | Kan. | 1869

By the Court,

Kingman, C. J.

A petition was filed in the district court of Shawnee county, showing that the defendant was treasurer of the State of Kansas; that the State of Kansas holds in trust, and holds the title to the 500,000 acres of land granted by the act of Congress, approved September 4th, 1841; and that the lands are the same described in section three of article six of the constitution of this state ; and the same lands described in an ’act of the legislature of this state, entitled “ an act providing for the sale of public lands to aid in the construction of certain railroads, approved February 23d, 1866.” The petition further shows that a portion of the money arising from the sale *113of the lands made under the provisions of the last mentioned act, have been paid into the treasury of the state, and that the defendant is about to pay it out to the railroad companies, entitled to receive it, under said act of the legislature; and is about to receive other moneys arising from the sale of lands aforesaid, and give receipts therefor. The petition further alleges that said act of the legislature is unconstitutional and void, and that all acts done under it embarrass and cloud the title of the plaintiff to the said lands, and tend to embarrass the plaintiff in its discharge of the trust imposed upon it by the constitution; that said lands and all the proceeds arising from the sale thereof, of right, belong to the schools of the State of Kansas, and that defendant ought not to pay over said moneys, now in the treasury, to the railroad companies, nor issue receipts for moneys on the sale of said lands, and asks that he may be enjoined from so doing.

The defendant, Anderson, entered his appearance and admitted that the facts set up in the petition were true, and agreed that the injunction should issue if the act of the legislature, approved February 23d, 1866, above referred to is invalid, and if this law should be declared valid, then the injunction should be refused. It was further agreed that the sole question submitted was as to the validity of the said act, and that the allegations set forth in the petition are sufficient to raise that question; and all other questions that might arise on the record are withdrawn from the consideration of the court. This agreement is sigued by the defendant and by Messrs. Thacher & Banks, attorneys for the plaintiff. The district court refused to grant the injunction prayed for, and the plaintiff brings the case to this court to review and re*114verse the order denying the injunction. The only question argued in this court is the one submitted to the district court by the stipulation of the parties.

But whatever may be the opinion of the court on that question, if the court below rightfully refused the injunction, we can do nothing more than affimi the decision; and we think the court very properly refused to grant the injunction for the reason that the proper parties were not before it. The order sought in this ease was not a preliminary injunction — the granting of which is permitted by the two hundred and thirty-eighth section of the code, but the final order or judgment in the case; and it has uniformly been held as sound doctrine that the powers of injunction should be applied with the utmost caution. It is the strong arm of the court, and to render its operation benign and useful, it must be exercised with great caution, and when necessity requires it, [2 John. Gh. B., 378,] and one of the most essential prerequisites for a final injunction is that all persons interested in the subject matter and result should be made parties. [See Wiser v. Blackly, 1 John. Ch. R., 438.] Chancellor Kent observed: “You must have before the court all whose interests the decree may touch, because they are concerned to resist the demand, and prevent the fund from being exhausted by collusion.” The rule is so obviously proper that it needs no comment, nor to be supported by authority. In the case last referred to, it is stated that while such is the general rule, it is not of universal application, and cites some cases apparently relaxing the strict rule, but no one of them is, in any regard, an authority for dispensing with the necessity in this case of bringing before the court the several railroad companies who are made by the act in question, and are shown by the *115petition to have a direct, positive, and very large interest in the decision of the question raised. If the act of the legislature is held valid,. the several companies receive the proceeds of the sale of 500,000 acres of selected lands; if it is held invalid, they lose that much — more need hardly he said to show their interest. Yet the argument might he amplified by showing that the defendant in the suit has no interest in the decision. He is the custodian of the fund merely, and it is of no consequence to him whether he is to pay it to the railroad company or to the school fund. He, so far as interest is concerned, is. entirely indifferent; and while he is properly made a party to the suit, he is only nominally a party, without any interest in defending or resisting the prosecution of the suit. The real persons interested in the resistance of the prayer of the petition, and the only ones, are the railroad companies, and, without their being in court, no final order could be made; and until they were made parties no order of any kind ought to be permitted. Ye think the court prpperly refused to grant the injunction on this ground.

There is another ground which would seem to be fatal, had it been insisted on in the proper way. The state is the plaintiff; yet no act of the legislature is found directing such a suit to be brought. On the contrary, any inference of the kind is negatived by the law of 1866, and the subsequent silence of the legislature on the subject. The attornéy general, the law officer of the state, appears officially in this court to resist the prayer of the petition. So that we look in vain for any authority on the part of the state to institute such proceedings. It is true that in the affidavit made to the petition, the superintendent of public instruction states that he, as such officer, has charge of the school interests of *116the state, and that the action is instituted at his instance to protect the said school interests of the state; but we fail to find any law confiding to that office any such duty either in express ternas or by implication. The constitution confides the management and investment of the . school fund to a board of which the superintendent is one, with no greater powers or responsibilities than either of the others. It may be gravely doubted whether in the absence of any legislation or the consent of the attorney general, any action can be maintained by * the state. [See State of Pennsylvania vs. Wheeling Bridge Co., 13 Howard, 515.] The state acts in her sovereign capacity, through the legislature, in making laws and directing her policy, and through her proper law officer in the protecting and enforcing her rights of property, and we see no authority anywhere for any other kind of suits. It is true that in many cases suits may be brought, or prosecutions, initiated by individuals or officers in the name of the state, but in all such cases the state has expressly sanctioned such use of her name to secure private rights, or enforce public justice. But this inquiry is more curious than instructive, as the want of proper parties defendant, was sufficient cause to withhold the granting of the injunction. Such being in our view the law of the case, we are not permitted to inquire into the validity of the law of 1866. It would not only be against the plain decisions in such cases, but would shock the sense of common justice of mankind if a court should pass finally upon the merits of a question involving interests so direct and so vast, without the parties to be affected by the decision having had an opportunity to be' heard in the court. In the language of Mr. Justice Tremble, delivering the opinion of the court in Malone vs. Hyde [12 Wheaton, 197,] “ such a proceeding would *117be contrary to all tbe rules which govern courts of equity and against the principles of natural justice; ” and again, the learned judge observes: “ We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdiction. We put it on the ground that no court can adjudicate directly upon a person’s rights without the party being either actually or constructively before the court.” Authorities without limit might be cited sustaining the same view, but it is not deemed necessary.

The case of the State, ex rel. Guthrie v. The Board of Commissioners [4 Kan., 261] cited by the counsel for plaintiff, is not in point, for in that case the parties were before the court, and it was competent and proper for the court to give as many reasons as it chose for its decision, although, as was said in that case, one was sufficient.

The court recognizes the importance to all parties of having the question involved in this case speedily settled ; nor is it unmindful of the magnitude of the interests involved, nor insensible of the advantages, so eloquently urged by counsel, to be derived from securing so magnificent a fund for the endowment of our schools, but all these benefits would be dearly bought, if they could only be had by breaking down fundamental principles of j ustiee, which we believe would be done, were this court to pass directly upon the rights of parties not before it.

We conclude what is urged by counsel that it must be a bold hand that dares to pluck this golden fruit from the mouths of our children, but are conscious that the responsibility, whatever it may be, does not rest'upon this court.

The decision of the court below must be affirmed.

All the justices concurring.