Rowlands v. State

Decision Date04 August 1960
Docket NumberNo. 41931,41931
Citation187 Kan. 174,354 P.2d 674
PartiesWilliam M. ROWLANDS, d/b/a Rowlands College Book Store, Appellant, v. STATE of Kansas, Board of Regents of the State of Kansas, and the University of Kansas Memorial Corporation, a Corporation, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

An action to question the power or authority of governmental agencies or public officials should ordinarily be brought in the name of the state on the relation of the attorney general or county attorney. Before a private citizen can maintain such an action he must show some interest or right distinct from those of other citizens.

Eugene C. Riling, Lawrence, argued the cause, and John J. Riling, Lawrence, was with him on the briefs for appellant.

Robert E. Hoffman, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., and A. K. Stavely, Asst. Atty. Gen., were with him on the briefs for appellees State of Kansas and Bd. of Regents of State of Kan.

O. K. Petefish, Lawrence, argued the cause, and C. C. Stewart and James L. Postma, Lawrence, were with him on the briefs for appellee The University of Kan. Memorial Corp.

PARKER, Chief Justice.

This is an action in which the proprietor of a privately owned bookstore seeks to enjoin the State of Kansas, The Board of Regents of the State of Kansas, and the University of Kansas Memorial Corporation from operating a retail bookstore business in the Memorial Union Building.

The trial judge, in a memorandum, concluded that the State of Kansas and the Board of Regents were immune from the suit, and on behalf of the University of Kansas Memorial Corporation concluded that the plaintiff lacked legal capacity to maintain the action. The plaintiff has appealed from the judgment of dismissal.

Although the petition prays for injunctive relief, such relief would only be incidental. The allegations of the petition force the conclusion that the action is in the nature of quo warranto seeking to oust the defendants from exercising alleged unwarranted power. As the questions arise from motions to dismiss, the facts must be accepted as they appear in the allegations of the petition. The facts essential to the determination of the questions before us may be briefly stated.

The plaintiff is the owner and operator of a business known as the Rowlands College Book Store in Lawrence, Kansas. Located at the University of Kansas is a building, designated as the Memorial Union Building. The building and land on which the building is located is owned by the State of Kansas. The defendants own, operate and supervise all activities in the Memorial Union Building.

The defendants have established and are operating a retail bookstore business in the Memorial Union Building known as the Kansas Union Book Store. The Kansas Union Book Store buys at wholesale and sells at retail, for a profit, the same items of merchandise as, and in direct competition with, other businesses in Lawrence, Kansas, especially that of the plaintiff. The competitive articles sold are itemized in the petition and the number of full time employees stated. Without presenting such facts in detail, it should suffice to state that under the allegations of the petition, which must be accepted the defendants are carrying on such a business as is connoted by the term, 'college book store.'

The petition concludes 'that the operation and carrying on of said retail business is in direct violation of Section 9, Article 11 of the Constitution of Kansas, which provides in part that 'The State shall never be a party in carrying on any work of internal improvement.''

The defendants, the State of Kansas and the Board of Regents, appeared specially and moved to dismiss the action for the reason that the State of Kansas and the Board of Regents, which they claim is an arm of the state, are immune from suit in the absence of statutory consent, and that the court is without jurisdiction of the two defendants or the subject matter of the action.

The defendant, The University of Kansas Memorial Corporation, filed its motion to dismiss, stating among other reasons 'That plaintiff's petition fails to allege any special injury or damage different in kind or nature from other persons belonging to the same class of which plaintiff is a part so as to authorize plaintiff to maintain said action.'

We will first consider the plaintiff's legal capacity to maintain the action.

This court has stated on many occasions that an action to compel, restrain or question the exercise of power or authority by a governmental agency or public officer, can be brought only by the state with the attorney general or a county attorney as relator, or by an individual who shows an injury or interest specific and peculiar to himself, and not one he shares with the community in general. Our authority for this statement will appear as we discuss the more detailed question, as to whether or not the facts bring the plaintiff within the rule.

Whether or not a private individual has brought himself within the narrow limits of the well-established rule must be determined from the particular facts of each individual case. In considering the facts now before us and the precedents which control them, we will not be confined to cases dealing with actions in the nature of quo warranto Cases dealing with mandamus and injunction proceedings adhere to the same principle.

See, e. g., Miller v. Town of Palermo, 12 Kan. (2nd Ed.) 14, where this court stated and held:

'Can private individuals, having no other interest than that of citizens, residents, and tax-payers of a supposed municipal corporation, maintain an action of quo warranto in their own names against such corporation, or must such action be brought in the name of the state, and by the attorney general or the county attorney? The district court decided that the action must be in the name of the state, and in that opinion we concur. This court has had occasion, in two or three cases, to consider under what circumstances grievances of a public character can be investigated at the suit of a private individual, and the rule has been thus laid down: '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.' Craft v. Jackson Co., 5 Kan.

Page 521

That case was one of an application for an injunction to restrain the issue of some county warrants; but the rule thus enunciated is of general application. It was followed by this court in two mandamus cases. Bobbett v. [State ex rel.] Dresher, 10 Kan. *9; Turner v. Jefferson Co. Com'rs, Id. [10 Kan.] * 16. And we see no reason why it should not be applied to cases like the one at bar * * *.' 12 Kan. at pages 15, 16.

See, also, Home Riverside Coal Mines Co. v. McAuliffe 126 Kan. 347, 267 P. 996, where it is said:

'Early in the history of this state it was determined 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 * * *' Craft v. Jackson County Com'rs, 5 Kan. 518, 521; and see Clark v. George, 118 Kan. 667, 669, 236 P. 643. This principle applies not only in injunction, but in mandamus (Bobbett v. State [ex rel. Dresher], 10 Kan. 9; Collingwood v. Schmidt, 125 Kan. 81, 262 P. 556) and other forms of action, many examples of which are found in our reports.' 126 Kan. at page 348, 267 P. at page 996.

The specific allegations on which plaintiff must rely to sustain his position as a proper party plaintiff is quoted as follows:

'That said Kansas Union Book Store is a state owned retail business operated at a profit in competition with the business owned and operated by the above plaintiff and others, and that all of the items of merchandise sold by the Kansas Union Book Store are sold in direct competition with other businesses in Lawrence, Kansas, and especially that of the plaintiff.'

As stated in Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P.2d 584, this court has relaxed the rule somewhat. However, the Board of...

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7 cases
  • Mobil Oil Corp. v. McHenry
    • United States
    • Kansas Supreme Court
    • January 10, 1968
    ...remedies are available. (Bobbett v. State ex rel. Dresher, 10 Kan. 9; Hawkins v. Gregory, 138 Kan. 477, 26 P.2d 247; and Rowlands v. State, 187 Kan. 174, 354 P.2d 674.) Whether or not a private individual has brought himself within the narrow limits of the well-established rule must be dete......
  • Sedlak v. Dick, 70,792
    • United States
    • Kansas Supreme Court
    • January 13, 1995
    ...person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney." KCCI quotes from Rowlands v. State, 187 Kan. 174, Syl., 354 P.2d 674 (1960), where the court stated the following "An action to question the power or authority of governmental agen......
  • State ex rel. Six v. Kansas Lottery
    • United States
    • Kansas Supreme Court
    • June 27, 2008
    ...and amended notice of appeal. The attorney general is the proper party to pursue this action. See K.S.A.2007 Supp. 75-702; Rowlands v. State, 187 Kan. 174, Syl., 354 P.2d 674 (1960) (action questioning authority of governmental agencies should be brought in name of the state on the relation......
  • Knight v. Neodesha, Kan., Police Dept.
    • United States
    • Kansas Court of Appeals
    • October 10, 1980
    ...of police may not be brought by plaintiff absent some showing that he has been uniquely affected by the acts. In Rowlands v. State, 187 Kan. 174, 176, 354 P.2d 674 (1960), the Supreme Court "This court has stated on many occasions that an action to compel, restrain or question the exercise ......
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