Martin v. Ingham

• Decision Date: 11 February 1888
• Citation: 17 P. 162,38 Kan. 641
• Parties: JOHN A. MARTIN, as Governor of the State of Kansas, v. CHARLES K. INGHAM.--THE STATE OF KANSAS, on the relation of George Getty, County Attorney, v. JOHN A. MARTIN, as Governor of the State of Kansas. (Original Proceeding in Mandamus.)
• Court: Kansas Supreme Court

17 P. 162

38 Kan. 641

JOHN A. MARTIN, as Governor of the State of Kansas, v. CHARLES K. INGHAM.--THE STATE OF KANSAS, on the relation of George Getty, County Attorney, v. JOHN A. MARTIN, as Governor of the State of Kansas. (Original Proceeding in Mandamus.)

Supreme Court of Kansas

February 11, 1888

Error from Shawnee District Court.

TWO ACTIONS against John A. Martin, as governor -- one by Ingham to perpetually enjoin the defendant from the performance of certain acts in the organization of Grant county, and especially from declaring Ulysses the temporary county seat thereof; the other, brought in this court by The State, on the relation of George Getty, county attorney of Hamilton county, to compel the governor to organize the county of Kearney, to name Lakin as the temporary county seat, and appoint the necessary officers under the law. The material facts are stated in the opinion, filed at the session of the court in February, 1888.

Judgment reversed and cause remanded.

S. B Bradford, attorney general, for plaintiff in error; E. A Austin, and L. J. Webb, of counsel.

Waters & Chase, and E. F. Hilton, for defendant in error Ingham.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Shawnee county, by Charles K. Ingham, a citizen, resident tax-payer and elector of the unorganized county of Grant, against John A. Martin, as governor of the state of Kansas, to perpetually enjoin the defendant from the performance of certain acts in the organization of such county. The facts, as set forth in the plaintiff's petition, are sworn to by him, and a large number of affidavits of other persons in support of such facts are filed with the petition as exhibits thereto. The petition and the exhibits show substantially, and in detail, the following facts: On or about May 9, 1887, in pursuance of the statutes for the organization of new counties, (Gen. Stat. of 1868, ch. 24, p. 249, et seq.; Laws of 1872, ch. 106; Comp. Laws of 1885, ch. 24, PP 1400 to 1412; Laws of 1886, ch. 90; Laws of 1887, ch. 128;) and upon proper preliminary proceedings had, the defendant, as governor, appointed Thomas J. Jackson as the census-taker, the register of the votes of the electors for the temporary location of the county seat, and the assessor for the said unorganized county of Grant. Immediately afterward Jackson qualified by taking the prescribed oath of office, and proceeded to Grant county, where he did certain work, and afterward, and about August 25, 1887, made his report to the governor. He went into the county of Grant in a state of intoxication, and remained there in a maudlin condition for two weeks, during which time he was incapable of doing any kind of business properly. Upon his entering into the county, he fraudulently, corruptly, and for pay, entered into an arrangement and conspiracy with certain parties to speculate upon the temporary organization of the county by the use of their influence and office. Pursuant to said arrangement, the overture was first made to persons interested in the town of Cincinnati, and it being refused, it was then made to persons interested in the town of Ulysses, and accepted. After this arrangement had been made, Jackson began work. He then moved to Ulysses. He enumerated the names of sixty fictitious persons, and counted them in favor of Ulysses for county seat. He excluded a large number of qualified voters from having their preferences recorded for county seat. This number was sufficiently large to materially affect the result. A large number of voters did vote for Cincinnati for county seat, and he corruptly changed their votes, and reported them as voting for Ulysses. He announced the voting closed by proclamation of the sheriff, and then took votes by night for Ulysses. He took and recorded a large number of votes for Ulysses of persons who pretended to live upon certain described lands, who did not reside there, and whose names and habitations were unknown. He took the votes of a large number of other persons, and recorded them for Ulysses, who were not voters. A large number of voters voting in favor of Ulysses were procured by bribery. Frauds of various kinds were perpetrated during the enumeration, with his knowledge and consent. He was, and continued to be, drunk, indecent, and disgusting. His examinations were carried on in a lascivious and disgraceful manner. He travestied the oath to persons enrolled; and performed many other acts of like nature and character as the above. The petition of the plaintiff also alleges as follows:

"The plaintiff further states that the defendant, John A. Martin, governor, threatens to, and will at once consider and act upon the said report of the census-taker, and will find therefrom that there are at least two thousand and five hundred actual, bona fide inhabitants in the said unorganized county of Grant; that five hundred of them are householders; and that there is at least $ 150,000 worth of property in excess of legal exemptions, exclusive of railroad property, of which not less than $ 75,000 worth is real estate; and will appoint three persons commissioners of said county, one to act as county clerk, and one to act as sheriff; and will designate and declare the town of Ulysses as the place chosen by the greater number of legal voters, to be the temporary county seat of said county of Grant, unless he shall be restrained and prohibited from so doing by the order and injunction of this court."

The plaintiff also asked for a temporary injunction. Before any hearing was had, however, the governor signed the following stipulation:

"1. I desire that the court shall thoroughly examine into all questions of fraud, partiality, drunkeness, bribery, or unfair dealings, on the part of the enumerator.

"2. I expressly waive any objection as to the capacity of the present plaintiff to bring suit, and at no stage in the proceedings shall this question be suggested by myself.

"3. I do not waive, however, my right to dispute the authority of the court to inquire into these matters.

JOHN A. MARTIN, Defendant."

Afterward, and upon the foregoing petition and affidavits, and upon the plaintiff's application for a temporary injunction, a hearing was had before the judge of the district court at chambers, and upon such hearing the judge granted the temporary injunction; and to reverse this order, granting the temporary injunction, the defendant, as plaintiff in error, brings the case to this court.

It is claimed in this court, and was also claimed in the court below, that the courts of Kansas have no jurisdiction to hear and determine any case like the one at bar. Indeed, it is claimed that the courts of Kansas have no jurisdiction to hear and determine any controversy that brings into question any act or acts of any member of the executive department of the state, and in Kansas all the state officers are members of the executive department. In Kansas, as elsewhere, there are three great branches or divisions of civil power, which, with some exceptions, are to be exercised by three separate departments: the legislative or the law-making power, the judicial or the law-construing power, and the executive or the law-enforcing power. With some exceptions, the legislative power is vested in the legislature, the judicial power is vested in the courts, and the executive power is vested in an executive department. In Kansas, under the constitution, the executive department is constituted as follows:

"SECTION 1. The executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor, treasurer, attorney general, and superintendent of public instruction." (Const., art. 1, § 1.)

The governor, however, is at the head of the executive department; for § 3, of the same article of the constitution also provides as follows:

"SECTION 3. The supreme executive power of the state shall be vested in a governor, who shall see that the laws are faithfully executed."

It is generally supposed that in a republican government all men are subject to the laws, and to the due administration of them, and that no man nor any class of men is exempt. There is no express provision in the constitution, nor in any statute, exempting any member of the executive department, chief or otherwise, from being sued in any of the courts of Kansas, or in any action coming within the jurisdiction of any particular court, civil or criminal, upon contract or upon tort, in quo warranto, habeas corpus, mandamus, or injunction; or from being liable to any process or writ properly issued by any court, as subpoenas, summonses, attachments, and other writs or process; and if any one of such officers is exempt from all kinds of suits in the courts, and from all kinds of process issued by the courts, it must be because of some hidden or occult implications of the constitution or the statutes, or from some inherent and insuperable barriers founded in the structure of the government itself, and not from the express provisions of the constitution or the statutes. So far as the present case is concerned, however, which is injunction, and another case which is also before us and which we are also considering, which is mandamus, it is only necessary for us to consider whether the governor, without reference to the other members of the executive department, is subject to the action of mandamus and injunction, or not. But, in order to properly consider these questions, it is necessary that we should consider many other questions. It might be proper here to state that, so far as the express terms of the constitution and the statutes are concerned, the governor is no more exempt from mandamus or injunction than he is...