State Ex Rel. Bradford v. Hamilton

• Decision Date: 10 November 1888
• Citation: 19 P. 723,40 Kan. 323
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THOMAS D. HAMILTON.--SAME v. JAMES YOXALL et al
• Court: Kansas Supreme Court

19 P. 723

40 Kan. 323

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. THOMAS D. HAMILTON.--SAME v. JAMES YOXALL et al

Supreme Court of Kansas

November 10, 1888

Original Proceedings in Quo Warranto.

Two actions brought in this court on January 17, 1888, by The State, on the relation of the attorney general, to determine whether the county of Wallace is organized, or not. The facts are sufficiently stated in the opinion.

Johnson Martin & Keeler, for plaintiff.

Waters Chase & Tillotson, and G. C. Clemens, for defendants.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

These are two actions in the nature of quo warranto, originally brought in this court, and which were submitted upon the same testimony and argument, and will be disposed of together. The first was brought in the name of the state of Kansas, upon the relation of the attorney general, against Thomas D. Hamilton, who assumed to be county attorney of Wallace county, questioning his authority to exercise and perform the functions and duties of that office; and the second was brought upon the same relation against James Yoxall and several other defendants, who claim to be county officers of Wallace county, and are assuming and exercising all the powers and duties of county officers of an organized county. Appropriate pleadings were filed to close the issues, but the avowed purpose of both proceedings is to have determined whether or not Wallace is an organized county of the state. Some of the principal facts relating to the organization may be shortly stated in the order of occurrence, as follows:

In 1868 the legislature bounded and named the county, and at the same time attached it to the county of Ellis for judicial purposes. (Special Laws of Kansas, 1868, ch. 14.)

In August, 1868, proceedings for the organization of Wallace county were instituted, and on the 25th of that month Samuel J. Crawford, then governor of the state, issued a proclamation reciting that it had been made to appear to him that the county of Wallace contained the requisite number of inhabitants to entitle the people of the county to a county organization, and that he had commissioned county officers, and he thereby declared and designated Pond City to be the temporary county seat.

By chapter 14 of the laws of 1871, the legislature provided that the county of Wallace should constitute the ninetieth representative district, and that it should also constitute a portion of the twenty-ninth senatorial district. The legislature of 1872 created the fourteenth judicial district, of which Wallace county was made to constitute a part, and it was then attached to Ellis county for judicial purposes. (Laws of 1872, ch. 113.)

In 1875 the legislature enacted that the county of Wallace should be included in the fourteenth judicial district, and fixed the time of holding a district court within that county; but no district court was ever held in the county. (Laws of 1875, ch. 87.)

On the 12th day of April, 1875, an action in the nature of quo warranto was instituted in the supreme court by the attorney general in the name of the state, against B. Day, T. S. Hays, H. W. Wheeler, persons pretending to be the county commissioners of the county of Wallace, S.W. Patton, pretending to be sheriff of Wallace county, and G. L. Redington, pretending to be county clerk of Wallace county, in which it was alleged that the organization of Wallace county was fraudulent and void in that the memorial presented to the governor was not signed by freeholders or bona fide inhabitants; that the affidavit thereto, purporting to have been made by three resident freeholders, alleging that the county contained a population of 600 inhabitants, was false and fraudulent; that at the time there were no bona fide inhabitants or freeholders in the county; and that the organization was effected for fraudulent purposes and not for the purpose of local government. It was alleged that the county was never divided into townships, and that no first election was ever had. The prayer of the petition was for a judgment that none of the defendants were entitled to the offices respectively claimed by them, and that they be ousted therefrom, and that the pretended organization of Wallace county is null and void, and restraining the defendants, Day, Hays, and Wheeler, from pretending to be and to act as the board of county commissioners of the county of Wallace. A judgment was entered in the case in accordance with the agreement and stipulation of the parties, in the following terms:

"This case came on regularly for hearing upon this day, and A. M. F. Randolph, relator, appeared of counsel for the state, and A. H. Case and A. D. Gilkeson of counsel for defendants. Thereupon defendants, with the consent of the state, withdrew the answer heretofore filed by them, and elected to stand upon the demurrer filed by them to plaintiff's petition; and said demurrer being submitted to the court, it is by said court overruled with consent of parties hereto, and the following judgment by their consent rendered for plaintiff.

"Therefore it is by the court ordered and adjudged --

"1. That none of said defendants above mentioned are entitled to the offices respectively claimed by them, and that they be ousted therefrom.

"2. That the pretended organization of the county of Wallace as an organized county, by virtue of which defendants claim their offices, as in plaintiff's petition mentioned, is fraudulent and void.

"3. That defendants Day, Hays and Wheeler do not constitute a corporation as the board of county commissioners of the county of Wallace, but that there is no such corporation; and that said Day, Hays, and Wheeler, and all persons claiming through, under, or in privity with them, be forever enjoined from pretending to form or to act as a corporate body as 'the board of county commissioners of the county of Wallace.'"

By chapter 186 of the laws of 1879, the legislature declared "that the county organization of the county of Wallace, in the state of Kansas, be and the same is hereby declared null and void, and the said county organization is hereby vacated and set aside." In the same act the attorney general was authorized to commence such proceedings in the supreme court as he might deem proper and necessary for fully setting aside the organization of the county; and further provisions were made concerning the maintenance of the action, and in respect to the judgment to be rendered in case such action was brought. The proceedings thereby authorized were not commenced.

Chapter 98 of the Laws of 1881 fixed the time of holding courts in the fourteenth judicial district, and by it the county of Wallace was attached to Trego county for judicial purposes. The same legislature created the seventeenth judicial district, and included Wallace county within the district, designating it as an unorganized county, and attaching it to Trego county for judicial purposes. (Laws of 1881, ch. 100.) In 1886 a new judicial district was created, constituted in part of unorganized counties, and Wallace county was included therein and classed as "unorganized." The act contained a provision that terms of the district court should be held "in the counties of Gove, St. John, Wallace, Lane, Scott, Wichita, and Greeley, after the same have organized, at such time as the judge of the district shall order." (Laws of 1886, ch. 120.) After the judgment of the supreme court, declaring the organization of Wallace county to be fraudulent and void, which was given in 1875, no attempt was made to maintain an organization, nor was there any pretense of carrying on a county government in Wallace county for a period of eleven years. During the greater part of that time there were but few permanent residents within the county; but in October, 1886, an effort was made to resuscitate the old organization. T. S. Hays, one of the former county commissioners, who still resided in the county, and one Frank L. Amet, a resident of Sherman county, who had once acted as county clerk under the old organization, met and proceeded to appoint county officers and to institute a county government. At the general election on November 6, 1886, persons were elected to serve as county officers, who qualified and have since assumed to exercise all the powers and duties of county officers of an organized county. The last legislation concerning Wallace county is found in chapter 145 of the Laws of 1887, which fixed the times for holding terms of court in the 23d judicial district, and it was there provided that terms of the district court should be held "in the county of Wallace on the fourth Monday in April and the fourth Monday in October, after the same shall be declared organized by the supreme court."

In March, 1887, the attorney general brought an action in this court in the name of the state against Stephen J. Osborn, as district judge, to inquire by what authority he assumed to hold a term of the district court in Wallace county. A demurrer was filed by the defendant to the plaintiff's petition, and judgment was given upon the demurrer, April 23 1887, in favor of the plaintiff, and it was there held that under the petition and the statutes of the state, Wallace was not an organized county. (The State, ex rel., v. Osborn, Judge, 36 Kan. 530.) Subsequently, and in May, 1887, A. D. Gilkeson applied to the attorney general for leave to bring an action in the name of the state, in the district court of Trego county, for the purpose of questioning the validity of the organization of Wallace county, representing that he was employed by citizens of Wallace county to assist the attorney general in instituting and conducting such action. Permission...