Kern v. City Com'rs of City of Newton

• Decision Date: 09 April 1938
• Docket Number: 33151.
• Citation: 147 Kan. 471,77 P.2d 954
• Parties: KERN v. CITY COM'RS OF CITY OF NEWTON.
• Court: Kansas Supreme Court

77 P.2d 954

147 Kan. 471

KERN v. CITY COM'RS OF CITY OF NEWTON.

No. 33151.

Supreme Court of Kansas

April 9, 1938

Syllabus by the Court.

A negro taxpayer of city had individual right to initiate mandamus proceeding to compel governing officials of city to admit him to privileges of city's swimming pool constructed by city at public expense, as against contention that negro's remedy was through a proceeding by public prosecutor.

The lessee of municipal swimming pool was a proper party to be impleaded in mandamus proceeding to compel governing officials of city to admit negro to privileges of swimming pool, notwithstanding that conduct of a private individual is ordinarily not subject to control by mandamus.

In mandamus action by negro to compel city officials to admit him to privileges of city's swimming pool, application for writ alleging that pool had been constructed with funds procured by sale of bonds constituting a charge upon all taxable property of city, that negro was a taxpayer, that he had been denied privilege of using pool because of his race and color, in violation of State and Federal Constitutions and that no other arrangements had been made to furnish swimming facilities for negroes, stated a cause of action.

1. The plaintiff, a colored citizen and taxpayer of the City of Newton, has the individual right to initiate proceedings in mandamus to compel the governing officials of the city to admit him to the privileges of the city's swimming pool constructed by the municipality at public expense.

2. The facts alleged in plaintiff's application for a writ of mandamus are sufficiently pleaded to state a cause of action against the governing officials of the City of Newton to withstand defendants' motion to quash the alternative writ.

3. The conduct of a private individual is ordinarily not subject to control by mandamus, but, where he is the lessee of a municipal swimming pool, he is a proper party to be impleaded in the litigation touching plaintiff's right to the privileges thereof.

Original mandamus proceeding by D. E. Kern against the City Commissioners of the City of Newton, Kan., and another to compel the defendants to admit plaintiff to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of the City of Newton wherein defendants filed a motion to quash the alternative writ.

Motion overruled.

Elisha Scott, of Topeka, for plaintiff.

Fred Ice, City Atty., Ezra Branine, and Alden E. Branine, all of Newton, for defendants.

DAWSON Chief Justice.

The plaintiff, who alleges that he is a private citizen of African descent and color, invokes the original jurisdiction of this court in mandamus to compel the governing officials of the City of Newton, and one Harold Hunt, to admit him to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of Newton in 1934.

The application for the writ sufficiently alleges that the bonds so voted are a charge upon all the taxable property of the city, and that plaintiff is a taxpayer; that, when the swimming pool was completed and opened, this plaintiff provided himself with a bathing suit for the purpose of enjoying the privileges of the swimming pool; but in the meantime the city government leased the swimming pool to one Harold Hunt; and that the latter denied to plaintiff the right and privilege of using the pool because of his race and color.

The petitioner further alleges that no arrangements have been made by defendants to furnish swimming facilities, or privileges for plaintiff and that neither he nor other citizens of African descent and color are admitted to the municipal swimming pool at any time. The petition continues:

"Plaintiff alleges that the action on the part of all the defendants and each of them was malicious, capricious, arbitrary and in violation of the civil rights law of the state of Kansas made and provided in such cases and also in direct violation of the Federal and State constitutions in such cases made and provided. And, that he and all other people of African descent or color are discriminated against because of their race, and that the said defendants and each of them have arbitrarily and intentionally failed and refused to make any provision for their entertainment, amusement or enjoyment of said municipal swimming pool in the city of Newton, Kansas, notwithstanding the fact that the plaintiff and people of his group, pay their just proportion of the taxes, which will be applied to the liquidation of the indebtedness incurred by the defendants."

The petition concludes with a prayer for an alternative writ commanding defendants to admit plaintiff and other citizens of Newton of African descent and color to the privileges of the swimming pool, or to show cause why plaintiff and others similarly situated should be denied such privileges.

An alternative writ issued, which counsel for defendants moved to quash on two grounds: (1) That plaintiff had no legal capacity to maintain the action; and (2) that the application for the writ did not state sufficient facts to constitute a cause of action.

When the motion to quash was presented, it developed in the oral argument that the possibility of an amicable adjustment of the matters complained of had not been fully explored by counsel for the litigants; and consideration of the cause was deferred until that matter had been considerately examined. Now, however, we are advised that an amicable settlement of the matters alleged in the application for the writ cannot be effected, and each party to the litigation invokes the judgment on the legal issues raised by the pleadings now before the court.

Is this sort of action maintainable by a private citizen having no interest in the matters alleged which differ in any respect from the public in general--particularly those of African color and descent who are citizens of Newton?

Approaching the question from another angle, and assuming the matters set out in the application for the writ to be true and well-pleaded, would not the alleged arbitrary or illegal action of the governing body of Newton be subject to correction or redress in an action brought by the state on the relation of the attorney general or county attorney? It would seem so. And, if the alleged official delinquency or assumption of unauthorized authority is subject to challenge or correction by any one of the state's authorized prosecuting attorneys, can this plaintiff, a private citizen, prosecute this action, when he has no interest in the subject matter in anywise different from the group to which he belongs?

Counsel for defendants cite many decisions of this court over a period of more than 60 years which, they argue, require a negative answer to this question.

In Craft v. Jackson County Com'rs, 5 Kan. 518, a taxpayer sought to maintain an action against a board of county commissioners to enjoin them from allowing and paying an allegedly illegal claim against the county and to enjoin the county clerk from drawing a warrant therefor. A temporary injunction was first granted and later dissolved by the district court, and on appeal that ruling was affirmed. In its opinion this court said:

"It is well known that the general rule is, that for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf, or by some of those local agencies created by the state for the management of such of the local affairs of the community as may be entrusted to them by law. The individual citizen does not in his own name interfere in behalf of the interests of society, but society acts through and by its properly constituted agencies. The law, as a general principle, has not deemed it proper that offenses or grievances of a public character should be investigated at the suit of a private individual, nor that the officers, to whom important trusts have been confided, should be held liable for their act to any one. When those acts affect every one alike such officers are as amenable as private citizens for any abuse of their authority. If the injury is one that peculiarly affects a person, he has his right of action; if it affects the whole community alike, their remedy is by proceedings by the state through its appointed agencies." 5 Kan. 518, at page 521.

Further in the same opinion the court continued thus: "In Putnam v. Valentine, 5 Ohio, 187, 189, the court refused to sustain an injunction obtained by a supervisor of highways to restrain the commission of great and irreparable injuries to a highway, saying: ,Suits to prevent the infraction of rights purely public are generally commenced and conducted in the name of the state, or the officer intrusted with the conduct of the public suits,' although it is not certain from the opinion that the case was decided upon this principle, but more likely on the want of power in the supervisor to conduct suits of that character in his official capacity. *** An injunction is likened to a mandamus, without observing that in the latter class of cases the proceedings are in the name of the state, and by the relator in certain cases, by express authority of law, a fair illustration of what we have endeavored to make appear in this opinion, that the private citizen as such cannot sue in his own name for public injuries where his rights and interests are the same as those of every other member of the community." 5 Kan. 518, at pages 524, 525.

In Bobbett v. State ex rel. Dresher, 10 Kan. 9, six private citizens of the town of...