Duggan v. The City of Emporia

• Decision Date: 11 March 1911
• Docket Number: 17,432
• Citation: 84 Kan. 429,114 P. 235
• Parties: THOMAS DUGGAN, Appellant, v. THE CITY OF EMPORIA, Appellee
• Court: Kansas Supreme Court

114 P. 235

84 Kan. 429

THOMAS DUGGAN, Appellant, v. THE CITY OF EMPORIA, Appellee

No. 17,432

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Lyon district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Elections. It is a principle of general application that courts will not enjoin the calling and holding of an election.

2. INJUNCTION--Grounds for Injunction. Injunction being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur; acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the relief.

3. INJUNCTION--Elections--Irregularities. Courts of equity will not enjoin the calling and holding of an election in a city of the second class under the initiative and referendum statute on the ground of alleged irregularities in the petition or because the proposed ordinance to be submitted to the electors purports to authorize the city to perform an act which it is claimed is ultra vires.

4. INJUNCTION--Grounds--Moot Questions. In a suit by an individual taxpayer of a city of the second class to enjoin the city from submitting to the qualified electors under the initiative and referendum statute a proposed ordinance authorizing the city to lease or sell its electric-light plant, the court will not anticipate conditions which may never arise, and since the people may not by their votes adopt the ordinance the court will not inquire into the validity of the proposed transaction.

W. A. Randolph, for the appellant.

J. Harvey Frith, for the appellee; Barker, Means & Rice, of counsel.

OPINION

PORTER, J.

This is a suit to enjoin the calling and holding of an election under the initiative and referendum act as applied to cities of the second class. On December 20, 1910, the judge of the district court refused a temporary injunction. The appeal is from this ruling.

The hearing was upon affidavits and upon the verified petition, no oral evidence being introduced. The facts are that the city of Emporia is a city of the second class and is governed by a commission. Shortly before this action was brought, a petition to the mayor and commissioners was filed with the city clerk asking that two proposed ordinances be submitted to a vote of the people, if not passed by the commissioners. One of these ordinances proposed to grant to certain persons a franchise for a street railway in the city of Emporia, and the other proposed to lease to the same parties for a term of twenty years, with an option in the lessees to purchase at any time during the term of the lease, at a certain agreed price, the electric-light and power plant owned by the city, which for a number of years had been used and operated by the city to light its streets and to furnish its inhabitants light and power.

The appellant contends that the court erred in refusing to grant a temporary injunction, for the following reasons: (1) The city of Emporia has no power to lease or sell its electric-light and power plant without direct legislative authority so to do. (2) The petition presented to the commissioners requesting the submission of the proposed ordinances was void for the reason that, at the time the petition was circulated and the names of electors procured thereto, the ordinances proposed were not attached to the petition, nor were they in existence. (3) One of the ordinances is void for the reason that it has no title. (4) Each of the ordinances is dependent on the other, and, one being void, the other is void. (5) The amount of the consideration for the leasing of the city's electric-light plant, as provided, is for a grossly inadequate sum, and the purchase price of $ 68,000, in case the lessees, their successors or assigns, should elect to take the same, is much less than the actual value of the plant.

The initiative is a part of the act governing cities of the second class. (Laws 1909, ch. 82, §§ 31-37, Gen. Stat. 1909, §§ 1503-1509.) The particular provisions of the law which are applicable read as follow:

"Any proposed ordinance may be submitted to the board of commissioners by petition signed by electors of the city equal in number to the percentage hereinafter required. A petition signed by electors equal in number to at least forty per centum of the entire vote for all candidates for the office of mayor or commissioner cast at the last preceding general municipal election shall be filed with the city clerk. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths that the statements therein made are true, as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. If the petition accompanying the proposed ordinance be signed by electors equal in number to forty per centum of the votes cast for all candidates for mayor or commissioner at the last preceding general election, and contains a request that the said ordinance be submitted to a vote of the people if not passed by the board of commissioners, such board of commissioners shall either (a) pass such ordinance without alteration within twenty days after attachment of the clerk's certificate to the accompanying petition; or (b) forthwith after the clerk shall attach to the petition accompanying such ordinance his certificate of sufficiency the board of commissioners shall call a special election, unless a general municipal election is fixed within ninety days thereafter, and at such special or general municipal election, if one is so fixed, such ordinance shall be submitted without alteration to the vote of the electors of said city." (Laws 1909, ch. 82, § 31, Gen. Stat. 1909, § 1503.)

It is not disputed that the initiatory petition consisted of thirty-six separate papers, each being verified as part of one petition; that tentative ordinances had been prepared and published in the Emporia Gazette, a daily paper; that amendments to the ordinances, made from time to time, were also published in the same paper; and that copies of the ordinances as printed were attached to the petition when it was presented to the commissioners. It will be observed that the statute expressly provides that "the signatures to the petition need not all be appended to one paper." Attached to the petition was a certificate from the city clerk that it contained the signatures of at least forty per cent of the qualified voters voting at the last preceding election. It was also shown that when the petition was presented certain verbal amendments were made, with the full knowledge and consent of the commissioners, and the title of one of the ordinances, which had been published but inadvertently omitted, was attached to the copy. The commissioners, with full knowledge of the facts, accepted the petition, and doubtless were satisfied that the signers of each separate paper understood that the paper itself did not constitute the petition, that it was merely a part of it, and that before it would be presented the petition would have attached to it copies of the proposed ordinances. It must be obvious that the objections based on the alleged irregularities in the circulation and signing of the petitions are entirely too technical to merit the consideration of a court.

There are, however, other reasons why the appellant's contentions can not be sustained: First, it is a principle of very general application that courts will not enjoin the calling and holding of an election; second, injunction, being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur. Acts which, though irregular and unauthorized, can have no injurious result constitute no ground for the relief.

Taking up the first proposition, it may be observed that this court has never enjoined the calling or holding of an election, and we believe that this is the first instance where it has been asked to do so. In The People ex rel. v. City of Galesburg, 48 Ill. 485, it was said:

"We are aware of no well-considered case which has enjoined the holding of an election, or prevented an officer of the law from giving the required notices for, or the certificate of, election. To sanction the practice of granting temporary injunctions in such cases would be highly calculated to obstruct the various branches of government in the administration of public affairs. Courts of equity can have no such power, otherwise any and all elections might be prevented, and government greatly embarrassed." (p. 489.)

In Walton et al. v. Develing et al., 61 Ill. 201, it was held that the court had no power to enjoin the holding of a township election to determine whether a majority of the voters were in favor of subscribing to the stock of a railroad company, and that the defendants, who had violated the order, were not liable for contempt of court for disobedience to the writ. In the opinion it was said:

"But the attempt to check the free expression of opinion--to forbid the peaceable assemblage of the people--to obstruct the freedom of elections--if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to...