Freeland v. Stillman

• Decision Date: 11 June 1892
• Citation: 30 P. 235,49 Kan. 197
• Parties: JAMES FREELAND et al. v. S. H. STILLMAN et al
• Court: Kansas Supreme Court

30 P. 235

49 Kan. 197

JAMES FREELAND et al. v. S. H. STILLMAN et al

Supreme Court of Kansas

June 11, 1892

Error from Atchison District Court.

PROCEEDING by S. H. Stillman, E. R. Langworthy, B. O. Burdick and A. P Stillman against James Freeland, director, Albert Hamm clerk, and William Meyer, treasurer, respectively, of School District No. 73, Atchison county, and Charles H. Krebs, clerk of said county, to contest a certain election. On a judgment for plaintiffs, at the September term, 1891, defendants bring error.

Judgment reversed.

J. T Allensworth, for plaintiffs in error:

1. The first error committed by the court below was in its refusal to sustain the demurrer to the petition.

The restraining order was granted by Judge Crozier, of the Leavenworth district court, and as judge of that court. He did not act in the capacity of judge of the district court of Atchison county, nor as judge pro tem. thereof. If the section of the statutes (2777, Gen. Stat. of 1889) has any force at all, it simply authorizes a plaintiff, in a case properly brought under its provisions, to request the district judge of any other county to come into the county where the suit is begun, and there grant the "temporary injunction" as the acting judge of such county. See also, § 1 of art. 3 of the constitution of Kansas.

If the plaintiffs below had authority to prosecute this action, it was only by virtue of section 2772, General Statutes of 1889. It is there provided that whenever any elector of a "county, township or municipal corporation" shall consider himself aggrieved, he may bring suit, etc. If a school district is not a "municipal corporation," then the plaintiffs cannot maintain this action.

The statute, by enumerating "county," "township," and "municipal corporations," intended to exclude school districts. That a school district is not a "municipal corporation," and is only a quasi corporation, is no longer an open question in this state, and it is not deemed necessary to argue this proposition further, for upon this point alone this case should be reversed. Beach v. Leahy, 11 Kan. 23; The State v. County of Pawnee, 12 id. 439; Eikenberry v. Bazaar Township, 22 id. 561; Marion County v. Riggs, 24 id. 257; School District v. Shadduck, 25 id. 467.

2. For the reasons above stated, the court should have sustained the objection of the defendants below to the introduction of testimony under the petition.

3. It was claimed and alleged by plaintiffs in the court below, that the defendants committed a fraud on them by calling the election on Saturday, that being their day of rest and for worship, and that thereby the majority of the voters in the district were disfranchised. Aside from the mere fact that the district board selected Saturday for holding the election, the record entirely fails to show any other evidence of fraud. Indeed, although the plaintiffs below claimed in their petition that said school district was not legally created; that the school-house site was not lawfully selected; that the directors were not properly elected, and that they were mere pretenders, yet it was conceded on the trial that such questions would not be raised in this action. The questions, therefore, to be considered are those only pertaining to the election. That the organization of said school district could not be questioned by plaintiffs below, see A. T. & S. F. Rld. Co. v. Wilson, 33 Kan. 223. The law under which this action was begun (Laws of 1871, chapter 79) authorizes "any elector or electors" of "any county, township, or municipal corporation," when he considers "himself," or they consider "themselves aggrieved by the result of any election," . . . "such election may be contested in the district court of the proper county, as hereinafter provided." It could not, with reason, be claimed that the plaintiffs below brought this suit pretending to represent the interest of the other electors of the district. Only a public officer could do that. The act referred to was intended to permit an elector of the "county, township, or municipal corporation" to sue for himself, and in doing so he could represent only his own interests. If the other electors of the district had felt themselves "aggrieved," the same privilege was theirs also. This character of action must be prosecuted in the name of the real party in interest. Admitting for the argument of this claim that the proof sustains it, they had actual notice of the time and place designated for the holding of this election, which renders any defect in the constructive notice entirely immaterial. Light v. The State, ex rel., 14 Kan. 489; County Seat of Linn Co., 15 id. 500; The State, ex rel., v. Comm'rs of Sherman Co., 39 id. 293.

4. A further contention of plaintiffs below was that the law governing elections for school-district bonds (sec. 195, ch. 92, Comp. Laws of 1885) provides that "no such bonds shall be issued until, at an election called for that purpose, the question shall have been submitted to the qualified electors of the district, and a majority of all the qualified electors of the district shall have declared by their ballots in favor of issuing the same," and that, since only 18 votes were cast, and only 13 of those favored the proposition, the requisite "majority of all the qualified electors of the district" did not declare in favor of issuing the said bonds. This court has already spoken upon the meaning of such a statute, and is supported by the weight of authority. Upon this point it is only necessary to cite the authorities: County Seat of Linn Co., 15 Kan. 500; Comm'rs of Marion Co. v. Winkle, 29 id. 40, 41; Prohibitory-Amendment Cases, 24 id. 721; Walker v. Oswald, 11 A. 711; The State, ex rel., v. Echols, 41 Kan. 1; Cass County v. Johnson, 95 U.S. 360.

5. It is claimed that plaintiffs in error, although doing that which the law authorized and required in holding their meeting and calling the election for just 10 days from the time the petition was presented to them -- in the performance of their duty strictly under the law--were yet guilty of fraud, in fixing said election for Saturday. If there had been a statute forbidding the calling of an election for that purpose on Saturday, out of regard for Sabbatarians, quite another proposition would be presented. Saturday never was a holiday, and can only be made so by statute. The legislature has declared it such for some purposes, but without any effect whatever on the acts of these plaintiffs in error in the case at bar. It is not for the court or counsel to say what the law should be, but to deal with the law as it is.

The character of fraud sought to be shown in this case is that on a statute. Fraud on a statute only occurs when some of its provisions have been evaded. Rapalje's Law Dict. No evasion of any statute has been shown in this case; hence there is no fraud. The question of intention is wholly immaterial. The directors are statutory officers. They are simply public agents; their duties are purely ministerial, and in no sense judicial. If they had the power to fix the time for holding the election beyond ten days, they had the power to refuse to fix any day. This is not the purpose of the law. Tucker v. White, 124 Mass. 344.

C. D. Walker, and H. M. Jackson, for defendants in error:

1. As to the first error complained of by the plaintiffs in error: The reasoning is, that because the restraining order was void for want of authority of Judge Crozier to make the same, the court where the cause was instituted had no jurisdiction to hear, try or determine the controversy. Judge Crozier saw fit to issue only a temporary restraining order, under § 240 of the code, and set the hearing for the temporary injunction for September 15, at 1 o'clock P. M., in the district court of Atchison county, notice thereof to be served upon said defendants.

On said day the plaintiffs in error and the defendants in error appeared, and by agreement the hearing for a temporary injunction was passed from time to time until December 28, and by agreement of parties the temporary restraining order theretofore granted was to remain in full force and until the further order of the court. And on that day, by agreement of parties, the case was placed on the docket and set down for final hearing on its merits. By this agreement this order became the order of the district court, and all objections to this irregularity, if there were any, were undoubtedly waived.

It is also contended in support of this proposition, that the plaintiffs had no legal capacity to sue; that the legislature only intended to give to the electors of counties, townships and corporations strictly municipal the right to contest an election for the issuing of bonds or loaning the credit, under § 2772, Gen. Stat. of 1889. The language of an act should be construed in view of its title and lawful purposes. Suth., Stat. Const., §§ 210, 211; see also §§ 212, 217-219. In The People v. Utica Insurance Co., 15 Johns. 358, 380, the court say:

"A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers."

To like effect are Jackson v. Collins, 3 HOW 89; Crocker v. Crane, 21 Wend. 211.

A mere change in the phraseology of the statute will not be deemed to alter the letter, unless it evidently appears that such was the legislative intent. Case of Yates, 4 Johns. 318-359; Matter of Brown, 21 Wend. 316; Theriat v. Hart, 2 Hill, 380; Cannon v. Vaughn, 12 Tex. 399.

This court has followed the same rule in the City of Emporia v Norton, 16 Kan. 236-239, and there further says of the...