State Ex Rel. Little v. Regents of University

• Decision Date: 08 June 1895
• Citation: 55 Kan. 389,40 P. 656
• Parties: THE STATE OF KANSAS, on the relation of John T. Little, Attorney General, v. THE REGENTS OF THE UNIVERSITY OF KANSAS et al. [*]
• Court: Kansas Supreme Court

40 P. 656

55 Kan. 389

THE STATE OF KANSAS, on the relation of John T. Little, Attorney General, v. THE REGENTS OF THE UNIVERSITY OF KANSAS et al. ^[*]

Supreme Court of Kansas

June 8, 1895

Original Proceeding in Quo Warranto.

THE opinion herein, filed June 8, 1895, states the nature of the action and the facts.

Judgment in accordance of the petition.

John T Little, attorney general, for The State; Morton & Clark of counsel.

At the time of serving and filing this brief, no issue had been made up in this cause. We labor, therefore, under the disadvantage of resorting to conjecture as to the defense to be made. If it turns out to be one based upon the form of the action, or that the principal defendants are not legally possessed of corporate powers, we claim that the acts of the legislature, among which are those of 1864 and 1889, are constitutional and effective for the latter purpose, and refer to Dill. Mun. Corp., § 22; Beach v. Leahy, 11 Kan. 28; Knowles v. Board of Education, 33 id. 692; and as to the form of the action to Civil Code, § 653, 4th clause; The State, ex rel., v. City of Topeka, 31 Kan. 454. The phrase "any corporation" is inclusive of a quasi corporation, as well as a corporation proper, and of a public corporation as well as a private one. The greater includes the less.

D. M. Valentine, for defendant:

The supreme court has original jurisdiction in quo warranto only as it obtains the same from the state constitution (art. 3, § 3); and this jurisdiction is of course only such as was understood and settled to be quo warranto jurisdiction prior to or at the time when the constitution was adopted. And this jurisdiction after being conferred upon the supreme court cannot grow or extend itself so as to include other matters; nor can the supreme court itself by any power it may possess extend such jurisdiction; nor can even the legislature do so. The State v. Wilson, 30 Kan. 661; The State v. Allen, 5 id. 213.

Quo warranto cannot be maintained against any body of men simply because they are a body of men, as a copartnership, etc., although it may have usurped powers, nor against an admittedly legal officer to enjoin or restrain him from the performance of some act, however illegal it might be, which he believes and claims comes with the proper duties of his office. High, Ex. Rem., §§ 618, 636.

Quo warranto has nothing to do with anything except with the illegal existence or illegal acts of regular corporations or assumed regular corporations, or with the illegal holding or attempted illegal holding of an office.

We claim that this action cannot be maintained for the following, among other reasons: First, because the state university is not a corporation; and, second, because even if the university should be considered as a quasi corporation, then no such remedy in quo warranto as the plaintiff now seeks was ever known or heard of or had any existence when our constitution was adopted.

Now, the state university is not a corporation under or by virtue of any of the provisions of the constitution; nor has it any organization or existence of any kind under or by virtue of any of the provisions of any general law or laws; hence, it is not a corporation at all. Of course, however, it is a legal and valid organization, although it is not a corporation. And this is true under the very statute referred to by the plaintiff.

The decisions of this court are uniform that counties, townships and school districts are not corporations within the meaning of the constitution. Among the cases, see Beach v. Leahy, 11 Kan. 23; The State, ex rel., v. Comm'rs of Pawnee Co., 12 id. 439; Comm'rs of Pottawatomie Co. v. O'Sullivan, 17 id. 58, 61; Eikenberry v. Bazaar Township, 22 id. 561, 572; The State, ex rel., v. Sanders, 42 id. 228; Freeland v. Stillman, 49 id. 197, 207; The State, ex rel., v. Lewelling, 51 id. 562.

The plaintiff also refers us to the civil code, § 653, subdivision 4, and to the last portion of such subdivision, as authorizing this present action; but must not the word "corporation" as there used mean the same thing as the same word means in the constitution which gives to the court the only original jurisdiction which it has in quo warranto? In the constitution the word means a regular corporation only, and one created by general law only, and not such a supposed or quasi corporation as the university of Kansas.

The case of The State, ex rel., v. City of Topeka, 31 Kan. 452, referred to by the plaintiff, has no possible application to this case. The city of Topeka was and is a regular corporation under the constitution and at common law, while the state university is not.

We suppose it will not be contended by the plaintiff that the supreme court may rightfully transcend its jurisdiction for the purpose of keeping other organizations or bodies within their respective jurisdictions or spheres, and especially not where there are other available, adequate and appropriate remedies for the supposed wrongs. In addition to the authorities heretofore cited, see the following: Cleaver v. Commonwealth, 34 Pa. St. 283; The State v. Evans, 3 Ark. 585; People v. Whitcomb, 55 Ill. 172; Stultz v. The State, 65 Ind. 492.

Now, quo warranto will not lie where there is any other plain and adequate remedy. The State, ex rel., v. Wilson, 30 Kan. 676, and authorities there cited. And certainly there are other plain, adequate and appropriate remedies for the alleged wrongs in this case. But the subject-matter of this action is not of such a public character as to justify any interposition by the attorney general or the state. The questions to be determined are whether a library fee of $ 5 may be charged to each student, or whether the use of the library must be free. Now, who loses the $ 5 if it is paid by each student? Is it the state or the student? And who loses the use of the library where the student is deprived of its use? Is it the state or the student? Certainly it is the student, and not the state, that must bear all these losses. Hence, the proper action to redress these supposed wrongs must be private, and not public. That the public cannot sue, see the following cases: The State, ex rel., v. McLaughlin, 15 Kan. 228; Center Township v. Hunt, 16 id. 438-440; City of Atchison v. The State, ex rel., 34 id. 379, 389-392; City of Argentine v. The State, ex rel., 46 id. 431, 436-438.

Upon the question of the power of the chancellor and board of regents to impose a library fee of $ 5 upon each student, the plaintiff refers us to § 11 of the act relating to the university. Gen. Stat. of 1889, P 6380. This section provides, among other things, as follows:

"Admission into the university shall be free to all the inhabitants of the state, . . . and no person shall be debarred on account of age, race, or sex."

Now, if the university for any reason is a regular corporation, then the foregoing section is void, for it is only a portion of a special act of the legislature, and under our constitution and the decisions of this court no regular corporation can be affected by a special act. But, as before stated, if the university is not a regular corporation, and it is not, then for the reasons heretofore given this present action will not lie.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

This action is prosecuted in the name of the state on the relation of the attorney general against the regents of the university, the chancellor and treasurer, to oust them from the exercise of the power, which it is alleged they have usurped, of charging the students who are residents of the state an annual library fee of $ 5 and a graduating fee of $ 5, and of excluding such students who fail to pay the library fee from the use of the books. It is alleged that the university is a corporation, and that enforcing the payment of such fees by residents of the state is an assumption of unwarranted corporate powers by the regents; that the statute makes admission to the university free to all residents of the state. It is admitted that the regents have been collecting such library fee, and claim the right to do so, and also the right to exclude students who refuse to pay from the use of the library. But it is contended that the exercise of this assumed power cannot be inquired into by an action in the nature of quo warranto, for the reason that the state university is not a corporation, or if a corporation in any sense, then only a quasi corporation, whose doings cannot be inquired into in an action of this kind. It is contended that the jurisdiction of this court of original proceedings in the nature of quo warranto is confined to such cases as were regarded as proper ones for the exercise of the jurisdiction of the courts by proceedings in quo warranto at the time of the adoption of the constitution; that the jurisdiction of the court cannot be extended by legislative enactment to cases of a different nature. It is claimed that quasi corporations are creatures of the law established for the purposes of government, and while they have some of the attributes of corporations, yet that they are not such corporations as those over the actions of which the courts exercise their supervisory power by actions of this nature. In the fourth subdivision of § 653 of the code, it is provided that this action may be maintained "when any corporation do or admit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law." In The State, ex rel., v. City of Topeka, 31 Kan. 452, it was held, that--

Whenever a municipal corporation usurps any power which might be conferred upon it by the sovereign power of the state,...