State Ex Rel. Atty. Gen. v. Scates

• Decision Date: 08 March 1890
• Citation: 23 P. 479,43 Kan. 330
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. T. A. SCATES
• Court: Kansas Supreme Court

23 P. 479

43 Kan. 330

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. T. A. SCATES

Supreme Court of Kansas

March 8, 1890

Original Proceeding in Quo Warranto.

THIS is an original proceeding in quo warranto, brought February 15 1888, by The State of Kansas, upon the relation of the attorney general, against T. A. Scates, to remove him from the office of county commissioner of Seward county. His term of office commenced in January, 1887, and will expire in January, 1890. The petition states as grounds for removal first, that Scates and Kimball, being a majority of the county board, at the April session, 1887 --

"Unlawfully corruptly, and with intent to defraud the taxpayers of Seward county, 'allowed a claim presented in the name of T. N. Sedgwick, and purporting to be for $ 488 traveling exenses and $ 1,500 for attorney-fees, which claim was illegal and unjust. Sedgwick never filed said claim. A county warrant was issued for $ 1,988, the full amount of said claim, and paid out of county funds. Sedgwick received only $ 475, and the balance, of $ 1,513, was corruptly converted by Scates to his own use.'

"Second: That in February, 1887, Scates and Kimball, having disobeyed an order of the district court, were fined for contempt, and in default of payment were imprisoned by order of said court in the jail of Barber county. They applied to this court to be discharged upon habeas corpus, and were remanded. Afterward, 'well knowing that the county of Seward was not liable for the payment of said fines and costs, nor for attorney-fees in making their defense before the judge of the district court, nor for attorney-fees in the habeas corpus proceedings in this court, said Scates and Kimball, in April, 1887, allowed and voted to said Scates the sum of $ 234.41' as and for his expenses and per diem while under arrest and in jail, and while attending the supreme court on the habeas corpus proceedings, for which sum a county warrant was issued, and signed by said Scates.

"Third: That at said meeting in April, 1887, said Scates and Kimball 'unlawfully and corruptly' allowed a claim in favor of one J. L. Wells, amounting to $ 90, for traveling expenses in the matter of the habeas corpus proceedings already mentioned.

"Fourth: That at the April session, 1887, of the county board, Scates and Kimball as a majority of said board allowed one H. C. Finch the sum of $ 701.25 for services 'as the attorney of said Scates and Kimball' in attending to their private business in said contempts and habeas corpus proceedings.

"Fifth: At said April meeting, 1887, Scates and Kimball, 'in pursuance of their unlawful and corrupt conspiracy,' allowed said Kimball the sum of $ 254.11 'as and for his expenses and per diem' while in custody and in jail respecting said contempt proceedings, and while attending the supreme court in said habeas corpus proceedings.

"Sixth: At said meeting in April, 1887, Scates and Kimball, as county commissioners, unlawfully and corruptly allowed and voted to one J. W. Hixon the sum of $ 433.29 as and for the fines and costs imposed on them in the mandamus proceedings aforesaid.

"Seventh: In July, 1887, Scates and Kimball as county commissioners unlawfully and corruptly allowed to said Scates the sum of $ 82.39 as 'traveling expenses on trip to Newton, Emporia and Topeka, to consult attorneys concerning decision of supreme court in habeas corpus proceedings.' This exhibit G contains three items -- one as above, under date of 14th April, for $ 82.39, and one, under date of 8th May, for $ 22.19 for 'traveling expenses to Newton to consult attorneys in injunction case.'

"Eighth: At the July session of the board of commissioners Scates and Kimball unlawfully and corruptly allowed as a claim against Seward county a bill in favor of Brown and Simpson, amounting to $ 425, 'for legal services rendered for said Scates and Kimball in their private affairs in the habeas corpus proceedings aforesaid in the supreme court.'

"Ninth: In July, 1887, said Scates and Kimball as county commissioners corruptly made an allowance of $ 50 to one H. D. Merritt 'for services as deputy County attorney,' said 'claim not being one for which Seward county was liable.'

"Tenth: In October, 1887, said Scates and Kimball as such commissioners unlawfully and corruptly allowed $ 813 to one Theo. Botkin, an attorney at law, 'there being nothing then due to said Botkin for anything whatever.'

"Eleventh: Scates and Kimball as commissioners, and Oliver Leisure as county clerk, unlawfully and corruptly issued and caused and procured to be issued a county warrant in favor of one G. S. Stein for the sum of $ 5,100, which warrant was signed by said Scates as chairman, and by said Leisure as county clerk. No bill, claim or account was ever presented to the county board by said Stein, nor filed for said claim. Said warrant was issued dated July 30, 1887, and was paid by the treasurer of Seward County on 23d November, 1887, and said warrant was issued for the purpose and with the intent to defraud Seward county.

"Twelfth: At the January session, 1888, of the county board said Scates and Kimball, constituting a majority of said board, unlawfully and corruptly allowed to one H. D. Merritt $ 190 on account of matters 'in no wise legal claims against Seward county.'

"Thirteenth: At said January session, 1888, Scates and Kimball as county commissioners 'unlawfully and corruptly' allowed Theo. Botkin, attorney at law, the further sum of $ 303 for pretended services, whereas the supposed services were not rendered for or on behalf of Seward county.

"Fourteenth: In July, 1887, Scates and Kimball, as county commissioners entered into a conspiracy with one Adkison, for the issuance to Adkison bonds of Seward county, 'to take up and fund outstanding orders of said county; whereas at that time Seward county had no bonded debt of any kind, and said Scates and Kimball as commissioners, and said Leisure as county clerk, corruptly issued and sold to Adkison bonds of said county in the sum of $ 40,000, without any vote of the electors, and without any authority of law; and at that time the total indebtedness of the county was only $ 33,730, so that in any event, even if said bonds were applied in payment of actual indebtedness, there was still an excess of $ 6,270 corruptly issued, without any consideration whatever."

The defendant filed his answer on April 6, 1888, admitting that he was a member of the board of county commissioners of Seward county, as alleged in the petition. And for further answer he denied generally and specifically all the other allegations and statements contained in the petition. J. H. Stuart, Esq., was appointed a commissioner to take and report the testimony. His report embraces 308 pages of type-writing. The case was orally argued and submitted to the court upon briefs, at its May sitting for 1889.

Judgment concurred.

L. B. Kellogg, attorney general, W. C. Webb, Webb, Campbell & Spencer, George W. Collins, and Samuel N. Wood, for plaintiff.

Joseph Wisby, and J. D. McFarland, for defendant.

HORTON, C. J. VALENTINE, J., JOHNSTON, J., concurs.

OPINION

HORTON, C. J.:

Seward county was organized in 1886. In the fall of 1886 T. A. Scates, W. W. Kimball and E. A. Watson were elected county commissioners, and Oliver Leisure county clerk. The term of each began in January, 1887, and it was during the spring and summer of 1887 that the matters complained of in these proceedings occurred. The object of the action is to remove Scates from office, for alleged misconduct under § 180 of chapter 25, Comp. Laws of 1885, p. 300, which reads:

"If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or...