Eastman v. Householder

• Citation: 37 P. 989,54 Kan. 63
• Parties: B. D. EASTMAN v. M. A. HOUSEHOLDER et al
• Decision Date: 06 October 1894
• Court: United States State Supreme Court of Kansas

37 P. 989

54 Kan. 63

B. D. EASTMAN v. M. A. HOUSEHOLDER et al

Supreme Court of Kansas

October 6, 1894

Original Proceeding in Mandamus.

ON the 16th day of August, 1894, there was issued out of this court an alternative writ of mandamus, at the instance of the plaintiff and against the defendants, which stated, among other things, that B. D. Eastman is a citizen of the United States and of the state of Kansas, and a resident of said state of Kansas; that defendants M. A. Householder, W. S Wait, N. M. Hinshaw, Mary E. Lease and Walter N. Allen are the duly appointed, qualified and acting members of the board of trustees of state charitable institutions of said state of Kansas; that prior to the 1st day of March, 1894, said plaintiff herein had been duly selected, appointed and elected superintendent of the insane asylum located at Topeka, in Shawnee county, Kansas, for the term expiring June 30, 1895, by the duly appointed, qualified and acting board of trustees of state charitable institutions of said state of Kansas, the insane asylum being one of the charitable institutions of the state of Kansas; that in pursuance of said selection, appointment, and election, the plaintiff duly qualified, and was installed in and entered upon the performance of his duties as such superintendent of said insane asylum, and so remained and continued in such office in the performance of said duties until on or about the 1st day of March, 1894, when said plaintiff was wrongfully illegally and unlawfully removed from said office through the erroneous and illegal conduct of the then board of trustees of state charitable institutions of the state of Kansas, by striking from the pay roll of the officers and employes of said asylum the name of plaintiff, and by delivering the office room, office fixtures, books, papers and records pertaining to said office to defendant J. H. McCasey, and informing said plaintiff that he was relieved from his official duties as said superintendent, and thereby dispossessing said plaintiff of said office and depriving him of the use, salary and emoluments of the same; that at said time there was no vacancy in said office, nor had any charges been presented or filed against said plaintiff for his removal from said office, as by law in such cases made and provided, nor had the official term for which said plaintiff had been selected, appointed and elected as said superintendent expired by operation of law or otherwise; that said plaintiff, on or about August 15, 1894, while said board of trustees of state charitable institutions was duly convened and in session for the transaction of business, made a demand upon said board to be restored to and reinstated in said office of superintendent of said asylum, which demand was by said board refused and denied, and said board still refuses to allow said plaintiff to perform his duties as said superintendent of said insane asylum, and still refuses to allow to him his salary and emoluments of said office.

The writ commanded the defendants M. A. Householder, W. S. Wait N. M. Hinshaw, Mary E. Lease, and Walter N. Allen, as the board of trustees of the state charitable institutions of the state of Kansas, to restore the plaintiff to his official position as superintendent of the insane asylum, and to install him in the office, and further, commanded the defendant J. H. McCasey to surrender to the plaintiff the office room of' such superintendent, together with the office furniture, fixtures, papers, books and records belonging to or under the control of the superintendent of the insane asylum, or to show cause before this court why they have not done as so commanded. On September 6, 1894, the board of trustees of the state charitable institutions and J. H. McCasey separately filed motions to quash the alternative writ, for the following reasons:

"1. That from the face of said writ it appears that mandamus is not the proper remedy for the matters therein alleged, but that there is another plain, adequate and complete remedy therefor, to wit, the action of quo warranto.

"2. That from the unexplained laches of said plaintiff, appearing upon the face of said writ, it affirmatively appears that, if said plaintiff ever had any right to be restored to said office, he had fully abandoned said office before applying for said writ, and is forever barred from asserting such right.

"3. That upon the showing made on the application therefor, said writ was improvidently granted."

The demurrers were presented and argued at the September sitting of this court for 1894.

Motion overruled.

W. A. S. Bird, and S. L. Seabrook, for plaintiff.

John T. Little, attorney general, and G. C. Clemens, for respondents.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an application to this court, in the exercise of its original jurisdiction, for mandamus to compel the defendants, as trustees of the state charitable institutions, having control of the insane asylum at Topeka, to restore B. D. Eastman to his official position as superintendent of that asylum, and to permit him to exercise the duties of his office without any interruption or intrusion from the defendants or either of them.

It is contended by the defendants that the petitioner has mistaken his remedy, and that mandamus will not lie. It is said that his appropriate remedy, if he has any, is by quo warranto. The great weight of authority is, that the courts will refuse to lend their extraordinary aid by mandamus to compel the admission of a claimant to an office in the first instance where he has never been in the actual possession of the office or...