Clark v. George

• Decision Date: 06 June 1925
• Docket Number: 25,768
• Citation: 118 Kan. 667,236 P. 643
• Parties: CECIL C. CLARK, FRED MAY, M. E. POTTS, A. A. WILDS, J. A. JONES, and P. T. FOLEY, Appellees, v. FRANK E. GEORGE, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LABETTE et al., Appellants
• Court: Kansas Supreme Court

236 P. 643

118 Kan. 667

CECIL C. CLARK, FRED MAY, M. E. POTTS, A. A. WILDS, J. A. JONES, and P. T. FOLEY, Appellees, v. FRANK E. GEORGE, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LABETTE et al., Appellants

No. 25,768

Supreme Court of Kansas

June 6, 1925

Decided January, 1925.

Appeal from Labette district court; ELMER C. CLARK, judge.

Reversal ordered.

SYLLABUS

SYLLABUS BY THE COURT.

COUNTIES--Recovery of Money Unlawfully Paid--Who May Sue. There being no statute specifically giving them that authority, individual taxpayers cannot maintain an action for the benefit of the county to require the repayment of money unlawfully paid out by it although the commissioners have refused to institute such a proceeding themselves.

Elmer W. Columbia, and S. J. Mattox, both of Oswego, for the appellants.

E. L. Burton, of Parsons, for the appellees.

OPINION

MASON, J.:

Six taxpayers of Labette county brought this action against the publisher who printed the ballots for a general election (other defendants being joined) to recover, for the benefit of the county, an amount it had paid to him on that account in excess of the legal charge, no fraud or willful misconduct on the part of the commissioners being charged, however. Judgment was rendered in favor of the plaintiffs, and the defendants appeal.

The right of the plaintiffs to maintain the action is asserted upon the ground that the commissioners, upon whom the management of the county's business is devolved (R. S. 19-212), had refused to institute any litigation in the matter. In a number of states, sometimes by analogy with the right of a stockholder in a private corporation to invoke the aid of the court in its behalf if the directors will not, individual taxpayers are allowed to prosecute claims in behalf of a city, county or like body, where the public officers upon whom the duty rests refuse to do so. (7 R. C. L. 965; 19 R. C. L. 1167, citing notes, 14 L. R. A., n. s., 298, and 19 Ann. Cas. 776.) The reasons for allowing that procedure are much the same as might be urged in favor of permitting an individual taxpayer to procure an injunction against the illegal conduct of public officers because it would result in increasing his taxes. As a rule, such injunctions are countenanced by courts which allow individuals to sue for the benefit of a public corporation or quasi corporation because its officers will not. In one instance it was said:

"If a taxpayer, to avoid the burdens of needless taxation, may sue to prevent public officers from squandering public money, there is, it seems to us, no good reason why he may not also commence and prosecute to judgment an equitable action for the enforcement of a corporate claim which the officers of the corporation have refused to enforce." ( Cathers v. Moores, 78 Neb. 13, 18, 110 N.W. 689.)

In another:

"It has long been a well-established doctrine that courts of equity have jurisdiction to restrain the illegal diversion of public funds at the suit of a citizen and taxpayer, when brought on behalf of himself and others similarly situated; and to compel the restitution of public funds which have been illegally diverted and lodged in the hands of persons not entitled to the same, who have taken them with notice of the wrongful diversion, and the governing body of the subordinate or local government will not act or take the necessary steps to have such funds restored." (Johnson v. Black, 103 Va. 477, 484, 49 S.E. 633.)

In another:

"The objection urged against the right of a taxpayer to maintain a suit on behalf of the public has been presented in many cases in this court in which the relief sought was an injunction against the unauthorized application of the revenues of the county. Such right has uniformly been upheld. . . . The reasons given by the court in support of the right of a...