120 Kan. 321 | Kan. | 1926
The plaintiff seeks to enjoin Jess W. Miley from hearing an appeal concerning the organization of a proposed rural high-school district and to enjoin all the other defendants from in any manner participating in the further organization or attempt to organize the rural high-school district. A demurrer of all the defendants except Jess W. Miley and the county commissioners of Woodson county was sustained on the ground that the action was prematurely brought. The plaintiff appeals.
The petition alleges—
“That on or about the first day of December, 1924, the said defendant, George A. Allen, as county superintendent of public instruction of Coffey county, Kansas, and the defendants, the board of county commissioners of Coffey county, Kansas, wrongfully and without any legal authority for so doing, attempted to approve the boundaries of said alleged proposed LeRoy rural high-school district No. 4, Coffey county, Kansas, pretended to be bounded as set out in the action herein; that none of the legal electors of said pretended district ever petitioned or requested the said county superintendent or the said board of county commissioners of Coffey county, Kansas, to approve said boundaries; that the pretended action of the county superintendent and board of county commissioners as aforesaid was wrongful, unlawful and without any warrant or authority in law whatever.”
The petition further alleges that the county superintendent of Anderson county and the board of county commissioners of that county unlawfully approved the boundary lines of the proposed rural high-school district; that no request or petition was presented by any elector of the proposed rural high-school district to the superintendent or to the board of county commissioners of Anderson county; that an appeal was taken to Jess W. Miley as state superintendent of public instruction on the ground that the county superintendents and boards of county commissioners of Anderson, Coffey and Woodson counties failed to agree on the boundary of the proposed rural high-school district; that there had in fact been no disagreement between those officers concerning the boundary; that “neither the county superintendent of public instruction of Woodson county, Kansas, nor the board of county commissioners of Woodson county, Kansas, have ever taken any action on said matter whatever, nor have they ever been given any opportunity to take any such action, nor has there ever been any matter concerning said pretended rural high school lawfully brought before the county superintendent
The board of county commissioners of Woodson county answered,, admitting the allegations of the petition. Jess W. Miley demurred on the ground that the court had no jurisdiction of him and that he could be sued as superintendent of public instruction in the courts of Shawnee county only. All the other defendants demurred on the grounds that the court had no jurisdiction of the parties; that the
“It is therefore by the court considered, ordered and adjudged that the demurrer interposed by the defendants herein be sustained on ground that action is prematurely brought.”
1. The plaintiff contends that because no petition or request of any elector of the proposed rural high-school district was presented to the county superintendent of Coffey county or to the board of county commissioners of that county or of Anderson county, or of Woodson county, no officer had any authority or jurisdiction to take any steps toward the organization of a rural high-school district.
The defendants contend that what was done was ‘preliminary to taking legal steps toward the organization of such a district. They argue that until those legal steps were taken, no action could be properly brought. Section 72-3501 of the Revised Statutes reads:
“The legal electors residing in territory containing not less than sixteen square miles shall have authority to form a rural high-school district, whose boundaries shall have been approved by the county superintendent of public instruction and by the board of county commissioners of each county in which any part of such proposed district shall be situated, or by the state superintendent of public instruction in case the county superintendents and boards of county commissioners of two or more counties shall fail to agree on the approval of the boundaries of the proposed district, and to establish, locate and maintain therein a rural high school as hereinafter provided.”
That statute does not prescribe what shall be the preliminary steps toward the organization of a rural high-school district. It leaves those steps to be taken in any manner by any person who is interested in the formation of such a school district. A part of the succeeding section (72-3502) should be noticed. The material part of that section reads:
“Whenever a petition, signed by two-fifths of the legal electors residing in the territory of the proposed rural high-school district, to be determined by an enumeration taken for this purpose by any legal elector residing in said territory and by him certified under oath to the county commissioners, shall be presented to the board of county commissioners of the county in which lies the greatest portion of territory comprising said district, reciting the boundaries of said proposed district and the approval thereof.”
This section does not prescribe the methods by which the pre
2. Was the action prematurely brought? ' It was brought by the state, not by a private citizen. When any officer under the laws of the state undertakes to act as such and acts illegally, the state may immediately commence suit to restrain such illegal action and to compel legal action. The state has the right through its proper officers to commence such a suit at any time; even if the questioned acts are legal and proper, the right of the state to commence the action is not affected. Such an action can be commenced. If no cause of- action exists, another matter is presented, but that is not the question now under consideration. The present actioii was not prematurely brought.
3." The petition alleges that no application was ever made to the county commissioners of Woodson county or to the county superintendent of that county for the approval of the boundaries of the proposed rural high-school district; that the boards of county commissioners and the county superintendents of Coffey and Anderson counties had illegally approved those boundaries; that there had been no disagreement concerning those boundaries so far as the officers of Woodson county are concerned; and that an appeal has been taken to the state superintendent of public instruction who threatens to act on that appeal and will do so unless restrained.
The state superintendent of public instruction has no authority to act until there has been a disagreement between the county superintendents and boards of county commissioners of two or more counties concerning the boundaries of the proposed rural high-school district. (R. S. 72-3501.) Under the allegations of the petition, the state superintendent of public instruction was undertaking to act without authority, and the state could maintain an action to restrain him.
4. There is another question not embraced in the judgment but which is argued in the briefs, and that question is the jurisdiction of the court over the state superintendent of public instruction. He argues that he can be sued in Shawnee county only. He cites
“Actions for the following causes must be brought in the county where the cause, or some part thereof, arose: . . .
“Second. An action against a public officer for an act done by him in virtue or under color of his office, or for neglect of his official duties.”
Part of this cause of action arose in Woodson county. Section 60-509 of the Revised Statutes should be noticed. That section reads:
“Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned.”
Some of the defendants were officers in Woodson county and resided in that county. They as well as the state superintendent of public instruction were proper parties to the action. Jurisdiction over one of the defendants residing in Woodson county gave jurisdiction over all of them.
The judgment is reversed.