Euler v. District

• Decision Date: 11 April 1925
• Docket Number: 26,155
• Citation: 235 P. 95,118 Kan. 363
• Parties: W. H. EULER, Appellant, v. ROSSVILLE DRAINAGE DISTRICT, E. G. GRISWOLD, L. R. HARTZELL and JOSEPH SCHENK, Appellees
• Court: Kansas Supreme Court

235 P. 95

118 Kan. 363

W. H. EULER, Appellant, v. ROSSVILLE DRAINAGE DISTRICT, E. G. GRISWOLD, L. R. HARTZELL and JOSEPH SCHENK, Appellees

No. 26,155

Supreme Court of Kansas

April 11, 1925

Decided January, 1925.

Appeal from Shawnee district court, division No. 1; JAMES A MCCLURE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DRAINAGE DISTRICTS--Persons Entitled to Challenge Existence. The rule that only the state may challenge the existence of a governmental corporation or quasi-public corporation is applied in an action brought by an individual to enjoin the construction of ditches or drains over his property.

2. SAME--Statutory Requirements--Injunction--Costs. The proceedings examined, and held, (a) it was not error to enjoin the defendant from appropriating or taking plaintiff's property without first complying with the provisions of the statute with reference thereto; (b) it was not error to tax one-half the costs to the defendant.

H. W. Euler, A. E. Crane, Fred S. Jackson, L. H. Euler, and B. F. Messick, all of Topeka, for the appellant.

James E. Larimer, and Eugene S. Quinton, both of Topeka, for the appellees.

Hopkins J. Harvey, J., not sitting.

OPINION

HOPKINS, J.:

The plaintiff sought to enjoin the defendant drainage district from entering upon his land for the purpose of making or constructing ditches or drains. A hearing was had, at which the plaintiff admitted the legal incorporation of the district, but also attempted to set up the claim that the original incorporation of the district was void because founded upon an invalid notice. The court held that the plaintiff could not question the legality of the organization of the district. The plaintiff appeals.

It appears from the record that the Rossville drainage district has had an existence and functioned as such since 1905. In the trial of the case this colloquy occurred:

"MR. QUINTON (for defendant): Is there any question upon whether this board is a duly organized board?

"MR. CRANE (for plaintiff): There isn't any question but what this drainage district was incorporated.

"THE COURT: Legally incorporated, you mean?

"MR. CRANE: Yes.

"THE COURT: Well, it is admitted--no denials that the defendants constitute a legally incorporated drainage board?

"MR. CRANE: A drainage board under the drainage laws of 1905."

Notwithstanding the admission, the plaintiff contends that the original notice, upon which the order incorporating the district was made, was void, and therefore that any and all actions and proceedings had by the defendant district are void and of no effect. He relies on the case of The State, ex rel., v. Drainage District, 116 Kan. 291, 226 P. 478, wherein it was held that the order of the board of county commissioners purporting to organize the district was void because based upon a void notice. That case is to be distinguished from the present one in that the proceedings were attacked in their inception and by the state. Here the district has had at least a de facto organization for a period of almost twenty years, and the legality of the organization is being questioned, not by the state, but by an individual. It has been so repeatedly held that private individuals may not maintain an action, the direct purpose of which is to question the validity of corporate or quasi-corporate organizations, that to discuss or enlarge upon the subject is useless. These are matters ordinarily within the province of the state acting through the attorney-general or the county attorney. (Bealmear v. Hildebrand, 107 Kan. 419, 191 P. 263; Schur v. School District, 112 Kan. 421, 210 P. 1105; Oil & Gas Co. v. Board of Education, 112 Kan. 737, 212 P. 900; Miller v. Barnard, 113 Kan. 631, 215 P. 1113; Pfeifer v. Klug, 114 Kan. 384, 219 P. 498; Elting v. Clouston, 114 Kan. 85, 217 P. 295; Railway Co. v. School District, 114 Kan. 67, 217 P. 296; School Dist. No. 38 v. Rural High School District, 116 Kan. 40, 43, 225 P. 732.)

But, it is argued, a drainage district does not have the attributes of a quasi-public or municipal corporation, and in support of the argument the plaintiff cites numerous authorities, which are either not applicable or not controlling here. Among others, he cites Jefferson County v. Drainage...