Farrelly v. Cole

• Citation: 60 Kan. 356,56 P. 492
• Decision Date: 11 March 1899
• Docket Number: 11379
• Parties: HUGH P. FARRELLY v. GEORGE E. COLE, as Auditor of the State of Kansas
• Court: United States State Supreme Court of Kansas

56 P. 492

60 Kan. 356

HUGH P. FARRELLY v. GEORGE E. COLE, as Auditor of the State of Kansas

No. 11379

Supreme Court of Kansas

March 11, 1899

Decided January, 1899.

Original proceedings in mandamus.

STATEMENT.

ON February 2, 1899, the plaintiff, Hugh P. Farrelly, filed in this court his petition and affidavit praying for an alternative writ of mandamus against the. defendant George E Cole, auditor, alleging that at the regular general election in November, 1896, plaintiff was duly elected state senator for the thirteenth senatorial district of the state of Kansas, and duly qualified as such; that as such state senator he attended and performed the duties of his office at a legal session of the legislature of the state of Kansas commencing on the 21st day of December, 1898, and concluding on the 9th day of January, 1899, and that, as said state senator, he performed the duties of his office in the said session of the legislature from the 31st day of December 1898, to the 7th day of January, 1899, inclusive, and by reason of said services became entitled to compensation payable out of the treasury of the state of Kansas in the sum of twenty-four dollars; that on the 7th day of January, 1899 he received from the secretary of the senate of the state of Kansas a voucher for the said sum of twenty-four dollars due him, which voucher was duly attested according to law by the secretary of the senate; that afterwards, on the 10th day of January, 1899, he presented the said voucher, duly sworn to and attested, to George E. Cole, auditor of the state of Kansas, and demanded that he draw his warrant upon the treasurer of the state to the amount of said voucher, payable to the plaintiff, and that said George E. Cole refused and still refuses to comply with said demand.

An alternative writ was issued conformable to the prayer of said petition; and thereafter, and on February, 8, 1899, the defendant filed his answer and return thereto, setting forth his reasons for refusing to comply with the commands of said writ, in substance as follows:

The only attempted appropriation by which it is claimed that moneys mentioned in said writ could be withdrawn from the treasury of the state of Kansas, and the only authority under which it is claimed that the defendant should audit and allow the claim of the plaintiff, was conditioned upon the provisions of two certain pretended acts of the legislature claimed to have been passed at a pretended session of said legislature held at Topeka, Kan., commencing on the 21st day of December, 1898, the same being house bill No. 72, entitled "An act making an appropriation for the legislative department and general expenses incident to the special session of 1898," and house bill No. 90, entitled "An act making appropriation for the legislative department and general expenses incident to the special session of 1898 and 1899." Each of said pretended acts of said pretended legislature was null and void and of no force and effect whatever, and constituted no authority in law or otherwise by which the defendant could proceed to audit and allow the said claim or any part thereof for the following reasons:

On the 15th day of December, 1898, the Hon. John W. Leedy, as governor of the state of Kansas, issued his proclamation in the words and figures as follows, to wit:

"PROCLAMATION.

EXECUTIVE DEPARTMENT,

TOPEKA, KAN., December 15, 1898.

"WHEREAS, Assurances have reached me to the effect that, if the legislature shall be convened, suitable legislation for the regulation of railroad charges can be enacted, and deeming such matter of sufficient importance to justify the convening of the legislature in special session:

"NOW, THEREFORE, I, J. W. Leedy, governor of the state of Kansas, by virtue of the authority vested in me by the constitution of the state, do hereby convene the legislature of the state of Kansas to meet at the capitol of the state at the hour of four o'clock P. M. on the 21st day of December, 1898.

"IN TESTIMONY WHEREOF, I have hereunto subscribed my name and caused to be affixed the great seal of the state of Kansas. Done at the city of Topeka, on the day and year first above written.

J. W. LEEDY, Governor.

"Attest: W. E. BUSH, Secretary of State."

No material changes had been made in the charges of railroad companies doing business within the state of Kansas for the transportation of persons or property within two years prior to the issuing of said proclamation, and none was threatened or impending at the time said proclamation was issued, and no unusual or material change had taken place affecting the nature of such traffic and transportation with regard to the reasonableness or unreasonableness of the prices charged therefor by said corporations, nor were any such changes threatened at the time said proclamation was issued. No extraordinary occasion existed on or about the 15th day of December, 1898, or the 21st day of December, 1898, authorizing the governor of the state of Kansas to convene the legislature of said state in special session, and no sufficient reason or excuse existed for the issuing of the proclamation hereinbefore set forth and for the convening of the legislature of said state in special session.

On the 21st day of December, 1898, in pursuance of the proclamation above set forth and without any other warrant or authority of law or otherwise, and without any reason or excuse for so doing, the members of the house of representatives elected at the general election held in 1896, with the exception of Hon. I. E. Lambert, of the forty-seventh representative district, Hon. Frank T. Patton, of the seventy-fourth representative district, Hon. John Heckman, of the one hundred and fifth representative district, Hon. Charles E. Lobdell, of the one hundred and fifteenth representative district, and Hon. C. A. Maxwell, of the one hundred and twentieth representative district, met in a pretended special session at the city of Topeka, Shawnee county, Kansas; and in lieu of the parties above mentioned there were present, attending and taking part in said pretended special session, Hon. Chas. Harris, claiming to represent said forty-seventh representative district, Hon. W. C. Millar, claiming to represent said seventy-fourth representative district, Hon. James M. Sutcliffe, claiming to represent said one hundred and fifth representative district, Hon. S. L. Filson, claiming to represent said one hundred and fifteenth representative district, and Hon. Frank Byers, claiming to represent said one hundred and twentieth representative district; and at the same time the members of the state, senate of the state of Kansas also met at the state-house in the city of Topeka, Shawnee county, Kansas, in pursuance of said proclamation, pretending to convene as a special session of the senate of the state of Kansas.

All the members of said house of representatives so convened at Topeka on the 21st day of December, 1898, with the exception of said Chas. Harris, W. C. Millar, James M. Sutcliffe, S. L. Filson, and Frank Byers, were chosen at the general election of 1896; and all the members of said house except those last above mentioned, and except John Seaton, J. M. Goodno, Elmer Loomis, A. L. Brooke, E. D. McKeever, H. A. Smith, R. B. Moore, Geo. T. Polson, Ed. Jaquins, F. P. Gillespie, E. R. Burkholder, S. S. Longley, Lot Ravenscraft, Alfred Lawson, Josiah Crosby, and H. F. Giessler, who had at the general election held in November, 1898, been elected members of the house of representatives of the state of Kansas from the representative districts in which they were then respectively residing, had no title or claim to their respective offices as members of the house of representatives of the state of Kansas, save and except that conferred upon them by, through and under the said election of November, 1896, and the proceedings had in pursuance thereof.

The answer and return then sets out the names of the members of said pretended house of representatives and the numbers of the respective districts from which they were elected, being the districts created by chapter 4, Laws of 1891. It also sets out the names of the members of the house of representatives chosen at the general election held in November, 1898, with the numbers of the respective representative districts from which they were chosen, being the districts mentioned in the apportionment act of 1897. (Laws 1897, ch. 171.) It also alleges that, on the final passage of said pretended house bill No. 72 in said pretended house of representatives, eighty-six persons, naming them, pretending to be members thereof, voted for said pretended bill; and that on the final passage of said pretended house bill No. 90 in said pretended house of representatives seventy-three persons, naming them, pretending to be members thereof, and pretending that said legislature was in legal session, voted for said pretended house bill.

The answer and return specially denies that any act of the legislature of the state of Kansas directed or authorized the auditor of state to draw his warrant for the sum mentioned in favor of said plaintiff, on account of or for the services or claim mentioned in said alternative writ.

The matter was presented to this court upon a motion made by the plaintiff for the issuance of a peremptory writ of mandamus, notwithstanding the answer and return of the auditor of state. The said motion was in legal effect a demurrer to the answer and return upon the ground that it did not state facts sufficient to constitute a defense to the petition and demand of the plaintiff.

Writ of mandamus sustained.

A. M. Harvey, Hungate & Thompson, and G. C. Clemens, for the plaintiff.

A. A Godard, attorney-general, and D. R. Hite, for the...