Philpin v. McCarty

• Decision Date: 09 November 1880
• Citation: 24 Kan. 393
• Parties: T. J. PHILPIN, et al., v. THOMAS L. MCCARTY, County. Superintendent of Public Instruction of Ford County
• Court: Kansas Supreme Court

24 Kan. 393

T. J. PHILPIN, et al., v. THOMAS L. MCCARTY, County. Superintendent of Public Instruction of Ford County

Supreme Court of Kansas

November 9, 1880

Decided July, 1880 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Original Proceedings in Mandamus.

MANDAMUS, brought in this court by Philpin and three others, against McCarty, county superintendent of public instruction of Ford county. May 28, 1880, an alternative writ was issued, and directed to the defendant--the body of the writ being as follows:

"Whereas, it has been suggested and made to appear to the court, upon the information and affidavit of T. J. Philpin, J. B. Smyth, Henry W. Crow, and N. B. Adams, that you were the duly elected, and are now the acting superintendent of public schools of Ford county, Kansas, and that they each settled upon and improved a quarter-section of section 16, of township 24, south, of range 32, west, and have ever since resided, and still do reside thereon, which said described section of land is situated in the county of Sequoyah, state of Kansas--which said county is an unorganized county of the state of Kansas, and is attached to the county of Ford, in said state, for judicial and municipal purposes, and was organized as a municipal township of Ford county, state of Kansas, in July, 1879, according to the laws of the State providing therefor; and that on the -- day of November, 1879, they caused a petition, signed by thirty-one householders, all of whom were, and twenty-eight of whom are, still residents of said unorganized county of Sequoyah, attached to the county of Ford, and organized as and forming a municipal township of said county as aforesaid, to be delivered into your hands as superintendent of public schools as aforesaid, praying you that you proceed to have the foregoing described school lands sold according to law--a copy of which said petition is before us--and that at the time the said petition was placed in your hands and filed in your office, you refused, and that you do still refuse, to act upon said petition, as you by law are in duty bound to do; and that by your refusal so to act upon said petition, they are deprived of their right to purchase said school lands so settled upon and improved as aforesaid, at the appraised value as by law provided.

"You are therefore commanded, by and with the advice and consent of the board of commissioners of Ford county, Kansas, to appoint in writing three disinterested residents in the county of Ford, wherein said school lands lie [Sequoyah county,] to appraise the same immediately on the receipt of this writ, or that you show cause," etc.

The defendant duly appeared, and filed a motion to quash the writ, for the reason that it does not state facts sufficient to entitle the plaintiffs to the relief sought; upon which writ and motion the case was submitted. The opinion herein was filed November 9, 1880.

Prayer of petitioners granted and mandamus issued.

J. C. Strang, M. W. Sutton, and Charles M. Walker, for plaintiffs:

The defendant claims that § 193 of ch. 92, Compiled Laws 1879, applies to townships of an organized county only; and that if it were not so, it would open the door to great frauds, for it would enable a few designing men in a remote part of an unorganized county to enforce the sale of all the school lands in the whole county. We think not. It takes the same number of petitioners, who must be householders of the township, to get the land sold in a township of the character of Sequoyah as in any other township of a county. It is further provided in § 197 of the same chapter, that "no bid at said sale shall be received for less than the appraised value of said land." This, we think, makes ample provision against fraud, to say nothing of other provisions of this act. First, it must be an organized township; second, the appraisers must, under oath, appraise at the real value; third, the appraisement must be at least three dollars per acre. If the said land lie "in a remote part of an unorganized county," and, as intimated, in an unsettled territory, then the investment would be unprofitable, and profit is one of the first and main incentives to fraud. Some municipal townships of organized counties contain several sections of school land and what is to prevent "a few designing men" from selling the school lands of such township? We cannot see from the argument of defendant's counsel, why the supposed fraud cannot be perpetrated as well in such a township as in a township of the nature of Sequoyah. The perpetration of the fraud rests entirely with the appraisers appointed by the superintendent of public schools, and not with the law; and the people who own the school fund as well as the land, must take the risk of the honesty of the appraisers, duly appointed. There can be no argument presented against the law that will not apply equally to a township of an organized county and an organized township of the character of Sequoyah; for by § 31, ch. 72, Laws of 1873, the township of Sequoyah, composed of the unorganized county of Sequoyah, and organized according to § 32 of same chapter, is, to all intents and purposes of the law, a township of Ford county. As to the extent to which this section applies, see Report of Attorney General of Kansas, 1878, pp. 183, 189.

But the only real question raised by defendant is, whether § 31, ch. 72, Laws of 1873, is in conflict with § 16, art. 2, of the constitution of Kansas? The first clause is all that applies in this case. Now is the subject clearly expressed in the title of this act, and is it comprehensive enough to cover the matter found in §§ 31 and 32 of the act? We think it is. The organization of a township can be for no other purpose than to provide for the enforcement of the laws. This principle is so plain that it cannot be disputed. Without the organization, there can be no parties through whom to act in their enforcement, save by mob violence. Sec. 111, ch. 24, Compiled Laws 1879, provides that there be 1,500 resident inhabitants of a county before an organization may be had. Now how shall the laws be enforced, save by attaching the unorganized county to an organized county? A provision that gives civil power to the officers of the county is certainly germane to the enforcement of the laws in the unorganized county, and is fully comprehended in this title. There is no provision that states what laws are intended by the legislature, whether civil or criminal; and it is therefore fair to suppose that both are meant. How, then, can the law for the sale of school lands be enforced in an unorganized county, except by giving authority to the officers of the organized county to which it is attached, to enforce and carry out the provisions of this act? This act alone renders life and the pursuit of happiness secure in all the unorganized counties of the state. Without it, crime would run riot, and the murderer would no longer need to seek the shades of midnight to wreak his deadly vengeance, or secure his unhallowed gains. Not alone in mountain fastnesses, nor in foreign climes, nor yet in the dense and crowded hordes of criminals that infest our cities, would he whom justice seeks be found; but in the beautiful plains of the western part of our noble state he might revel in the delights of a pleasant home, beautified perhaps by the money taken from his slain victim. Public policy alone would dictate, were it necessary, that this act be upheld.

Again, over a large part of the western end of the state, townships are organized and their officers are acting under the provisions of §§ 31 and 32. Where will litigation end if their acts are not valid? It is one of the principles of law, that the ultimate end to be obtained must be considered in the determination of the constitutionality of an act of the legislature. The ultimate end to be obtained by these sections is, we think, very clearly expressed in the title--i. e., the enforcement of the laws in unorganized counties of the state.

We think that this court, by granting an ordinarily liberal construction of the title of this act, will find it amply comprehensive to cover the provisions of the sections in question. As there cannot possibly be a greater chance for fraud in the sale of school lands in an organized township composed of an unorganized county than in an organized township of an organized county, and as the law under which Sequoyah becomes one of the townships of Ford county is the only law which makes the existence of its inhabitants tolerable, during the interval between the time when it becomes such a township and when it has a sufficient number of inhabitants to entitle it to a county organization, we submit that it should be declared constitutional and valid, and that the peremptory writ should issue.

Willard Davis, attorney general, and A. B. Jetmore, for defendant:

1. The only question for consideration in this case is, whether school lands in an unorganized county, attached to an organized county for judicial purposes, may be exposed to sale under § 193, ch. 92, Comp. Laws 1879.

In our judgment, this statute applies only to organized townships proper, and not to an unorganized county attached to an organized county for judicial purposes under the statute of the state. We think the language of said section warrants us in this construction, for it provides that, whenever "twenty householders of any organized township in which the land is situated shall petition the superintendent of public schools of such county," etc. Now, if this section applies to an unorganized county, it would open a wide door for fraud. It would enable a few designing men in a remote part of an unorganized county to enforce the sale of...