State Ex Rel. Roberts v. Lawrence

• Court: Kansas Supreme Court
• Writing for the Court: Per Curiam:
• Citation: State Ex Rel. Roberts v. Lawrence, 103 P. 839, 80 Kan. 707 (Kan. 1909)
• Decision Date: 09 July 1909
• Docket Number: 16,395
• Parties: THE STATE OF KANSAS, ex rel. Edgar Roberts, as County Attorney, etc., v. H. V. LAWRENCE, as County Treasurer, etc

103 P. 839

80 Kan. 707

THE STATE OF KANSAS, ex rel. Edgar Roberts, as County Attorney, etc., v. H. V. LAWRENCE, as County Treasurer, etc

No. 16,395

Supreme Court of Kansas

July 9, 1909

Decided July, 1909.

Error from Finney district court; WILLIAM H. THOMPSON, judge.

Judgment reversed and cause remanded.

Edgar Roberts, for the plaintiff in error.

Hoskinson & Hoskinson, for the defendant in error.

OPINION

Per Curiam:

In February, 1909, an action was brought in the name of the state, on the relation of the county attorney, to enjoin the county treasurer of a county of less than 25,000 inhabitants from making a general deposit of public moneys in a bank which had not been designated as a depositary by the county commissioners. The material facts were agreed to, and relief was refused on the grounds that injunction was not a proper remedy and that the treasurer had a right to make such deposit. The plaintiff prosecutes error.

The state may maintain injunction against a public officer to restrain him from a violation of his official duty, although other remedies may be open, and he may have given a sufficient bond. It has an interest in seeing that the will of the legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (The State v. Kansas City, 60 Kan. 518, 57 P. 118.) See also, State, ex rel., v. Metschan, 32 Ore 372, 46 P. 791, where it was said:

"This is a suit by the state in its sovereign capacity, as the guardian of the rights of the people, instituted by its executive law officer, and can, in our opinion, be maintained without showing any special injury to the state. . . . It is enough that the threatened disposition is in violation of the will of the people, as expressed in the supreme law of the land. . . . A sufficient injury, therefore, to enable the state in its sovereign capacity to call upon a court of equity for relief is shown whenever it is made to appear that public funds are about to be applied to a use, for a purpose or at a place prohibited by the constitution." (Pages 384-386.)

In 1874 the legislature enacted a law (Gen. Stat. 1901, § 1702), which is still in force, making it a public offense for a county treasurer to "loan to any corporation company or individual, or . . . permit any corporation, company or individual to use any public money coming into his possession or under his control . . . by virtue of his official position." In Lowry v. Polk County, 51 Iowa 50, 49 N.W. 1049, it was held that a general deposit of funds in a bank amounted to a loan, inasmuch as the title to the money passed and the relation of debtor and creditor was created. This decision was overruled in Hunt v. Hopley, 120 Iowa, 695. (See, also, 5 Words & Ph. Jud. Def. p. 4198; Allibone v. Ames, et al., 9 S.D. 74, 68 N.W. 165; State v. Midland State Bank, 52 Neb. 1, 71 N.W. 1011.) The Kansas statute, however, while prohibiting a loan of public funds, goes further and forbids the treasurer to permit any corporation to use any public money coming under his control. For a county treasurer to place public...