Patrick v. The Board of County Commissioners of The County of Haskell

• Decision Date: 18 June 1919
• Docket Number: 22,428
• Citation: 181 P. 611,105 Kan. 153
• Parties: JAMES S. PATRICK, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF HASKELL et al., Appellees
• Court: Kansas Supreme Court

181 P. 611

105 Kan. 153

JAMES S. PATRICK, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF HASKELL et al., Appellees

No. 22,428

Supreme Court of Kansas

June 18, 1919

Decided January, 1919.

Appeal from Haskell district court; CHARLES E. VANCE, judge.

Judgment reversed and injunction granted.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Restraining Removal of County Seat--Taxpayer Proper Party Plaintiff. A taxpayer may maintain an action under section 265 of the code of civil procedure, to enjoin the removal of a county seat, where that removal is attempted to be made in obedience to an election held under an unconstitutional law, and would result in the levy of a tax to provide county buildings and to pay the expense of such removal.

2. SAME--Necessary Allegations and Proof. To maintain an action under section 265 of the code of civil procedure, it is not necessary for the plaintiff to allege or prove that he has no other adequate remedy, or that his injury would be irreparable; it is sufficient to allege and prove the facts which the statute sets forth.

3. SAME--Proceedings Not Prematurely Brought. Where a county-seat election has been called, and the circumstances are such that, after the result of the election has been ascertained, the county seat may be moved before any injunction can be served, an action to prevent the removal of the county seat may be commenced, and a temporary injunction may be served, before the election is held.

4. CONSTITUTIONAL LAW--Election--Relocation of County Seat--Special Law--Act Unconstitutional. That part of chapter 161 of the Laws of 1919 which reads, "provided, in counties having a population of less than two thousand and having a county seat not located on any railroad, and where at an election for that purpose the vote heretofore cast in favor of the removal of the county seat was more than a majority of the votes cast, then in that event another election may be called at any time within two years after the date of such former election, and it shall only require a vote of a majority of the legal electors voting at such election to relocate the county seat and remove it from such place, and the board of county commissioners shall upon the petition of three-fifths of the legal electors of such county order an election for the relocation of such county seat," is unconstitutional, for the reason that it violates section 17 of article 2 of the constitution; it is a special law where a general law can be made applicable.

5. SAME--Special Laws--Duty of Courts. It is the duty of the courts to uphold a statute rather than to declare it unconstitutional; but if it is repugnant to the constitution, it is the duty of the courts to declare the statute invalid, and if a special act has been passed where a general law can be made applicable, the courts must so declare.

6. SAME--Relocation of County Seat--Construction of Statute--Special Law. Where the language of an act, providing for an election for the removal of a county seat, shows that the legislature intended that the act should apply to but one county, and the act is thereby rendered unconstitutional, that language will not be changed by construction so as to make it apply to other counties, and thus remove its invalidity.

Clad Hamilton, and Clay Hamilton, both of Topeka, for the appellant.

C. G. Dennis, county attorney, and William Easton Hutchison, of Garden City, for the appellees; C. R. Hope, of Garden City, of counsel.

OPINION

MARSHALL, J.:

On May 2, 1919, the plaintiff commenced this action to enjoin the defendants from moving the county seat of Haskell county after an election to be held on May 15, 1919. The election was called under chapter 161 of the Laws of 1919. Judgment was rendered in favor of the defendants, and the plaintiff appeals.

1. The plaintiff's right to maintain the action is not directly challenged, but the defendants, to uphold the judgment, present questions which indirectly involve that right. The statute under which the action was brought reads, in part, as follows:

"An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge, or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction." (Civ. Code, § 265, as amended by Laws 1917, ch. 247.)

This court has declared a number of times that any person whose property may be affected may enjoin any board or body from doing any act not authorized by law, which act may result in the levy of any illegal tax on that property. (Bunker v. Hutchinson, 74 Kan. 651, 87 P. 884; Gas Co. v. Railway Co., 74 Kan. 661, 87 P. 883; Meistrell v. Ellis County, 76 Kan. 319, 323, 91 P. 65; Hartzler v. City of Goodland, 97 Kan. 129, 154 P. 265; Stevenson v. Shawnee County, 98 Kan. 671, 159 P. 5, 98 Kan. 704; Abraham v. Weister, 103 Kan. 162, 172 P. 998.)

The removal of a county seat would result in the levy of a tax to provide county buildings and to pay the expense of that removal; therefore, the plaintiff can maintain this action.

2. The defendants contend "that injunction cannot be maintained if there is any other adequate remedy at law," and that "the invariable rule is that the injury must be irreparable before injunction will lie." These contentions ignore section 265 of the code of civil procedure. That section gives a remedy to a taxpayer against any action, by any board or officer, that will result in the creation of any illegal tax. This court, in the cases cited, supra, has said that a taxpayer may maintain such an action. A statement of the allegations contained in the petition in several of these cases is set out in the opinions therein. The allegation that the plaintiff has no other adequate remedy at law, or that he will suffer irreparable injury if an injunction be not granted, is not found in either of these opinions.

Where a statute gives a right of action, it is sufficient to allege in a petition, in an action under the statute, those facts which the statute itself sets forth as the circumstances under which an action may be maintained. When those facts are alleged, a cause of action is stated. (Rosselle v. Klein, 42 A.D. 316, 59 N.Y.S. 94; Ayers et al. v. Lawrence et al., 59 N.Y. 192; County of Rock Island v. Union Printing Co., 71 Ill.App. 636; 31 Cyc. 115; 10 Encyc. Pl. and Pr., 943.)

In Abrahams v. School District, 97 Kan. 325, 327, 155 P. 16, this court said:

"It is said that the plaintiffs had a remedy by way of contest of the election. If so, the remedy was not exclusive of that afforded the plaintiffs as taxpayers by section 265 of the civil code."

If the defendant's argument is correct, the statute does not mean what it says, for the reason that when a person alleges facts which bring him within the statute he has not stated a cause of action; he must go further and allege, and consequently prove, that he has no adequate remedy at law, and that he will suffer irreparable injury. To give effect to the statute, litigants must be permitted to prosecute actions under it, even if they have another adequate remedy, and even if they do not sustain irreparable injury.

The defendants cite, among other cases, Laithe v. McDonald, 12 Kan. 340, where this court said:

"It is a general rule of equity, with some exceptions, however, that courts of equity will not grant relief where the party has a plain and adequate remedy at law." (p. 348.)

An action under section 265 of the code of civil procedure is one under the exceptions mentioned in Laithe v. McDonald.

In criminal pleading, where the statute creates an offense and sets out the facts which constitute it, an information that follows the language of the statute is good. (The State v. Buis, 83 Kan. 273, 111 P. 189.) The same rule of pleading should, and does, apply in civil actions.

3. The present action was tried, the judgment was rendered, the appeal was taken, and a stay order was granted, before the election was held. The defendants contend that the contingency on which an injunction might be granted did not occur until after the election. Stated in other words, the defendants contend that the action was prematurely brought. The petition undertook to allege facts justifying the bringing of the action before the election. The election was called for Thursday, May 15; the board of canvassers would meet on Saturday, May 17; and the result would probably be declared on that day. If the defendants had been as deeply interested, and would have acted as promptly as interested parties have acted in the past in county-seat contests, the county seat would have been moved before any kind of an injunction could have been served, and the liability of the county for county buildings and for the expense of moving might have become fixed. A more difficult question would then have been presented for solution, and the plaintiff's rights might have been defeated. Under the circumstances, this court will not say that the contingency giving the plaintiff the right to an injunction had not occurred, and will not say that the action was prematurely brought. These are not questions of fact which were determined by the trial court in favor of the defendants, but are questions of law which this court will review.

4. The plaintiff attacks...