Dunn v. Board of Com'rs of Morton County
| Decision Date | 18 January 1947 |
| Docket Number | 36865. |
| Parties | DUNN et al. v. BOARD OF COUNTY COM'RS OF MORTON COUNTY et al. |
| Court | Kansas Supreme Court |
Opinion Filed Feb. 7, 1947.
Appeal from District Court, Morton County; Fred J. Evans, Judge pro tem.
Action by Oral A. Dunn and others, against the Board of County Commissioners of Morton County, Kansas, and others, to enjoin an election called by the Board of County Commissioners to determine the question of relocation of the county seat of Morton County. From a judgment overruling the demurrer of the Board of County Commissioners and granting a temporary injunction, the Board of County Commissioners appeals.
Judgment reversed, and cause remanded with instructions to sustain the demurrer and to vacate and set aside temporary injunction.
Syllabus by the Court
1. A private person cannot, by virtue of being a resident, a taxpayer and an elector of the county, maintain an action against the board of county commissioners where the relief sought affects merely the interests of the public in general and not those of such private person in particular.
2. A private person cannot, by virtue of being a resident, a taxpayer and an elector of the county, maintain an action against the board of county commissioners to question the official composition of that board.
3. It is a principle of general application that courts will not enjoin the calling and holding of an election.
4. Private persons have no standing to question the legality of the official composition of the board of county commissioners by an action against the board to enjoin an election called by that board under a valid statute.
Shelley Graybill, of Elkhart (Oscar F. Perkins, of Elkhart, on the brief), for appellants.
Langdon Morgan, of Hugoton, and Charles Vance, of Liberal, for appellees.
This was an action brought by three individuals designating themselves as citizens, electors and taxpayers in their own behalf and on behalf of other members of such classes to enjoin an election called by the Board of County Commissioners of Morton County to determine the question of relocation of the county seat of that county.
At a hearing held in the district court the demurrer of the Board of County Commissioners to the petition was overruled and the trial court granted a temporary injunction. The defendant Board of County Commissioners, appeals, assigning error on both rulings.
Upon consideration, this court has concluded that the plaintiffs are not entitled to the relief prayed for. The order of the trial court overruling the demurrer is reversed and the order granting the temporary injunction is set aside. A fuller opinion will be prepared and filed later.
The clerk of the District Court of Morton County is ordered to spread this mandate of record immediately upon its receipt by him.
This was an action brought by the plaintiffs against the Board of County Commissioners of Morton County and others, as more fully set forth later, to enjoin an election called for January 20, 1947, to relocate the county seat. The board of county commissioners and certain of the defendants demurred to the petition and also to an application for a restraining order and temporary injunction. A trial was had in the district court at which the demurrer was overruled and a temporary injunction was granted. From these rulings an appeal was perfected to this court. The appeal was heard on January 18, 1947, and was decided the same day. At that time a short opinion was prepared and filed in which it was stated that later a fuller opinion would be prepared and filed.
In view of our conclusions hereafter stated, it is not necessary that we make an analysis of all the allegations of the petition. It is first noted that in the caption to the petition the defendants are named as the board of county commissioners of Morton county, and 'E. M. Dean, John M. Hardwick, B. B Rickart and Delmas Littell, individually and as County Commissioners of the County of Morton.' In the petition it is alleged that Morton county has a population of more than two thousand people, and that the county seat has been located at Richfield for more than eight years consecutively and that there have been erected at the county seat for county purposes buildings costing more than ten thousand dollars; that the plaintiffs are residents, electors and taxpayers of the county and bring the action on their own behalf and on behalf of other residents, electors and taxpayers; that defendants Hardwick and Dean are duly elected, qualified and acting county commissioners for the second and third commissioner district and that defendant Littell is the duly appointed, qualified and acting commissioner of the first commissioner district; that in December, 1946, petitions were presented to the board of county commissioners to call an election to remove the county seat to Elkhart, and various claimed defects in the petition are set forth; that the defendants Dean and Littell acting as the board of county commissioners made a finding that the petitions were insufficient, and the defendants Hardwick and Rickart claiming to act as the board of county commissioners, when in fact Rickart was not in law or in fact a county commissioner, made a finding the petitions were sufficient and pursuant to such finding, made a purported order calling the election to be held January 20, 1947; that plaintiffs believe that Littell is the duly appointed, qualified and acting county commissioner, and that the order made by defendants Dean and Littell that no election be held, was the valid act of the board of county commissioners, and that plaintiffs believe that defendant Rickart acted without legal authority and was not de facto or de jure a county commissioner of the county and that the action of defendants Hardwick and Rickart in purporting to call the election was not the act of the board of county commissioners, but if such purported order was the official act of the board of county commissioners of Morton county, the order was made without authority of law and in violation of G.S.1935, Ch. 19, Art. 16. Then follow allegations that the election was called notwithstanding the insufficiency of the petitions presented to the board of county commissioners, with lengthy allegations pertaining to lack of qualification of signers of the petitions and the sufficiency of the petitions, and other allegations that the election was not properly called under the provisions of G.S.1935, 19-1613 to 19-1619, and that the list of qualified electors was not properly made as required by those sections of the statutes. A further allegation is that if not restrained the defendants will hold a purported election at the expense of the county, will attempt to convass the returns and attempt to move the county records pursuant to such canvass, all of which will cause expense to the county and cause irreparable damage to the plaintiffs and to other taxpayers, citizens and electors of Morton county. Other allegations are not of present importance. The prayer was for a restraining order, for a temporary injunction and on final hearing for a permanent injunction enjoining the holding of the election.
As has been noted the defendants' demurrer to the petition was overruled and a temporary injunction granted, and the appeal followed.
The only question necessary to be decided is whether the petition stated facts showing that plaintiffs could maintain the action. Although developed later two propositions suggest themselves, one being the right of plaintiffs to question the official composition of the board of county commissioners, and the other the right of plaintiffs to enjoin an election.
It has been noted that in the caption of their petition, plaintiffs denominate defendants Dean, Hardwick, Rickart and Littell as county commissioners. That there are only three members of the board of county commissioners need not be demonstrated. See Kansas Constitution, Art. 4, § 2; G.S.1935, 19-202. The allegations of the petition need not be repeated, but in essence, it is charged that Hardwick and Dean are commissioners, and that Littell is a duly appointed commissioner, and that Richart is acting as a commissioner and it is contended that he is not a commissioner either de facto or de jure, and as a preliminary to the power of the board of county commissioners to act, plaintiffs attempt to question the official composition of the board. In support of their right to do so, they direct our attention to the provisions of G.S.1935, 60-1121, as construed in Patrick v. Board of Com'rs of Haskell County, 105 Kan. 153, 181 P. 611. In that case it was held that a taxpayer could maintain an action under the above provision of the civil code of procedure to enjoin the removal of a county seat where that removal was attempted to be made in obedience...
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