Jacques v. Litle

• Decision Date: 06 May 1893
• Citation: 33 P. 106,51 Kan. 300
• Parties: D. JACQUES v. LLOYD LITLE
• Court: Kansas Supreme Court

33 P. 106

51 Kan. 300

D. JACQUES v. LLOYD LITLE

Supreme Court of Kansas

May 6, 1893

Original Proceeding in Quo Warranto.

THE facts are stated in the opinion herein, filed at the session of the court in May, 1893.

Sutton & McGarry, for plaintiff.

Milton Brown, for defendant.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is a proceeding in quo warranto, brought originally in the supreme court, and involves only the title to the office of treasurer of a school district in Gray county. It appears that, at the annual meeting in 1891, Lloyd Litle was elected treasurer of the district for a term of three years, and at that time W. F. Castner was director and J. T. Dean clerk of the district. In order to secure employment as teacher of the district school, Dean resigned as clerk, and T. B. Seaton was appointed in his stead. Without any meeting of the district board, Gastner and Seaton agreed to employ Dean as teacher and a written contract to that end was entered into between these two members and Dean. Having no certificate authorizing him to teach, Dean obtained from the county superintendent a temporary certificate, but no written request therefor was made by the district board, as the statute requires. Litle opposed the employment of Dean and protested against his taking charge of the school, and insisted that the contract made was illegal. Notwithstanding this opposition and protest, Dean began teaching, in the early part of October, 1891, and continued in charge of the school throughout the term. Litle refused payment of school orders issued to the teacher by the other district officers and to other persons for the maintenance of the school, although at that time there were sufficient moneys on hand belonging to the several funds upon which such orders were drawn. He attended a meeting of the school-district board on November 14, 1891, and did not attend any other until the annual meeting in 1892, when other persons were elected to succeed Castner and Seaton as director and clerk of the district. Since that time, he has attended every meeting of the district board. In January, 1892, a notice was served upon Litle that a meeting of the board would be held on January 19, but Litle did not attend, and at this meeting the board undertook to correct the irregularity and illegality in the employment of Dean and to ratify the contract theretofore made with him as teacher. In February, the action of Litle in refusing to pay school orders and attend the meetings of the board was brought to the attention of the county superintendent, who, without any notice to Litle, considered that he had forfeited his right to the office of treasurer, declared it vacant, and appointed the plaintiff to fill the supposed vacancy. After Jacques qualified as treasurer, he made a demand upon Litle for the books, papers and belongings of the office, but the demand was refused by Litle, who has always insisted that he was the treasurer of the district, and, since the annual meeting in 1892, he has been recognized by the other members of the board and by the county treasurer as such officer. The county superintendent, however, has always recognized Jacques as treasurer of the district since his appointment, and for a time orders issued by him were honored by the county treasurer. An attempt was made to show that Litle became a nonresident of the district in the latter part of the year 1891. The testimony fails to sustain this claim. He and his family went to the town of Cimarron during the winter months, but returned to their home in the spring. The testimony convinces us that the absence was temporary, and with no intention of a permanent removal or change of residence.

Has the plaintiff any right to the office in question or to maintain this action? He cannot employ quo warranto for the purpose of ascertaining whether Litle has been guilty of neglect or refusal to perform any duty required of him and to declare a forfeiture therefor. Such a proceeding can only be prosecuted in the name of the state, and at the instance of the attorney general or county attorney. The plaintiff seems to be proceeding upon the theory that the county superintendent may summarily, and without notice to the defendant or hearing, determine for...