Moore v. Smith

• Decision Date: 07 July 1945
• Docket Number: 36330.
• Citation: 160 Kan. 167,160 P.2d 675
• Parties: MOORE v. SMITH.
• Court: Kansas Supreme Court

160 P.2d 675

160 Kan. 167

MOORE v. SMITH.

No. 36330.

Supreme Court of Kansas

July 7, 1945

Appeal from District Court, Sedgwick County, Division No. 3; Clair E. Robb, Judge.

Appeal from District Court, Sedgwick County, Division No. 3; Clair E. Robb, Judge.

Action by Keith E. Moore against D. D. Smith and others to enjoin county commissioners from certifying to county clerk the election of named defendant for alleged unexpired term of sheriff of Sedgwick County, to enjoin county clerk from issuing a certificate of election to named defendant, and to enjoin named defendant from entering into or taking over the office or in any manner interfering with plaintiff's conduct of the office. From an adverse judgment, the named defendant alone appeals.

Judgment reversed with directions.

Syllabus by the Court.

1. Although, upon appellate review, it appears that no order with reference to the specific issue presented would be directly effectual for the reason that a period of time involved in the cause of action has expired, or by virtue of other change in circumstances, the appeal should not be dismissed as being moot if by leaving the judgment unreversed vital rights of the parties would thereby be affected in the controversy.

2. Construing section 19-804, G.S.1935, as it existed prior to amendment in the 1945 session of the legislature, together with other pertinent statutes, held: (a) An appointee named to fill a vacancy in the office of sheriff was only entitled to serve, under the appointment, until a successor, elected at the general election first following the appointment, was able and ready to qualify; (b) a short or unexpired term to be filled by election at such general election existed, under the law, covering the period from such election to the beginning of the next regular two-year term.

3. An appointee named to fill a vacancy in the office of sheriff assumed the office in July, 1943; at the next general election in November, 1944, another person whose name had been regularly printed on the ballot as a candidate therefor was elected for a short term covering the period from the election to the beginning of the next regular two-year term on January 8, 1945; following the election the appointee to the office secured a permanent injunction enjoining the county officials from certifying the election of the person so elected and enjoining such person from assuming the office for such unexpired term. Held: Under the law then in effect the trial court erred in granting the injunction.

John Madden, Jr., of Wichita (John Madden, Sr., of Wichita, on the brief), for appellant.

W. D Jochems, of Wichita (J. Wirth Sargent, Emmet A. Blaes, and Roetzel Jochems, all of Wichita, on the brief), for appellee.

HOCH Justice.

The substantive question presented by this appeal is whether under the law then existing, an appointee named by the governor in 1943 to fill a vacancy in the office of sheriff was entitled to serve under the appointment until the next regular term began on January 8, 1945, or whether there was an 'unexpired' term to be filled by election covering the period between the general election in November, 1944, and January 8, 1945.

The sheriff of Sedgwick county having been ousted from office, the governor appointed Keith E. Moore to fill the vacancy. Moore took office on July 20, 1943. At the general election in November, 1944, he was elected for the regular two year term beginning on January 8, 1945. At the primary election in 1944 D. D. Smith was nominated for an 'unexpired' or 'short' term. At the general election his name was printed on the ballot as a candidate for such term and he received sufficient votes to elect. Moore was not a candidate for an unexpired or short term, taking the position that under the law there was no such term and that under his appointment he was entitled to serve out the term to which his ousted predecessor had been elected, which would expire on January 8, 1945.

Following the election in November Moore brought an action in injunction to enjoin the county commissioners from certifying to the county clerk the election of Smith for the alleged unexpired term; to enjoin the county clerk from issuing a certificate of election to Smith, and to enjoin Smith from entering into or taking over the office of sheriff or in any manner interfering with the plaintiff's conduct of the office.

A temporary injunction was granted. Defendant Smith filed a motion to dissolve the temporary injunction on the grounds that the court was without jurisdiction to grant it; that the right to an elective office would only be tested by proceedings in quo warranto or mandamus; that the plaintiff had no capacity to sue and was not the real party in interest; that the petition did not state a cause of action; and that the injunction as to the county officers was illegal and void since it restrained them from performing the duties imposed upon them by law.

The motion to dissolve was overruled and defendant Smith demurred on substantially the same grounds set up in the motion. The demurrer was overruled. The county commissioners and Smith then filed answers. The gist of the commissioners' answer was that their duties in the matter were 'largely ministerial and clerical' in performance of the duties imposed by law and they asked directions by the court. In his answer Smith averred that he was a regular nominee for the unexpired term, was duly elected, had procured a good and sufficient bond in the sum of $20,000 for the faithful performance of his duties as sheriff which he was ready to file as required by law; that the election of a sheriff at the general election to fill an unexpired term, under the circumstances existing, is provided for by statute; that the plaintiff was estopped by his laches in not contesting defendant's right to have his name placed upon the ballot. Other and formal parts of the pleadings need not be recited. It was stipulated that Smith had filed in time under the primary election law, paid the filing fee, and that his was the only name printed upon the general election ballot for the unexpired term.

Evidence establishing the formal facts heretofore recited was received, after which defendant Smith demurred to the evidence. This demurrer having been overruled he moved for judgment, which motion was also overruled. The trial court based its rulings upon the ground that the situation was controlled by section 19-804, G.S.1935, together with Art. 4, Sec. 2 of the state constitution, and that no unexpired term as contended for by defendant is therein provided for. Defendant having elected to stand upon his demurrer and motion, judgment was entered permanently enjoining all defendants as prayed for. The court also found that the plaintiff should be required to post a bond in the amount of $5000 'to secure the said defendant, D. D. Smith, against any damages he might sustain if it be finally decided that the permanent injunction herein ought not to have been granted,' and an order that such bond be posted on or before eleven o'clock a.m. on November 10, 1944, was made a part of the journal entry of judgment. It is not denied that such a bond was posted. On November 18, 1944 this appeal was taken by defendant Smith. The other defendants did not appeal.

We first consider a motion by appellee to dismiss the appeal. He contends that the controversy has become moot; first, because the alleged short term has expired, and second, because the statute upon which he principally relies, 19-804, G.S.1935, has been materially amended by an act passed by the 1945 legislature (H.B. 268, now Chap. 162 Laws of 1945).

Appellee's second contention, as to the change in the statute, requires no discussion. Without examining the provisions of the new amendment to section 19-804 it suffices to say that whatever changes it makes they can, of course, have no effect on the present controversy. The rights of the parties were determined solely by the law governing the controversy when adjudicated.

Next, should the appeal be dismissed as moot because the alleged short term has expired? A 'moot case' has been variously defined. One common definition is that it is a case in which determination is sought of an abstract question when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then existing controversy. 27 Words and Phrases, Perm. Ed., pp. 536, 538. The fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it. The rule is one of court policy, founded upon the sound proposition that except when under some statutory duty to do so courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination.

The rule as to moot issues requires further statement at this point. The fact that the only relief directly sought upon appellate review can no longer be given, owing to expiration of a period of time involved or to other change in circumstances following judgment, is by no means always sufficient to justify dismissal of the appeal. One of the well-established conditions, as to dismissal, is stated in 4 C.J.S., Appeal and Error, § 1354, pp. 1945-1948, as follows 'the appeal * * * will be dismissed * * * unless * * * the judgmednt, if unreversed, will preclude the party against whom it stands as to a fact vital to his rights.' (Italics supplied) Similarly it is said in 3 Am.Jur. 310: 'It is not every change in circumstances which might be said to render the case a moot one so as to require a dismissal of the appeal or error...