State v. Bradbury

• Decision Date: 07 May 1927
• Docket Number: 27,346
• Citation: 256 P. 149,123 Kan. 495
• Parties: THE STATE OF KANSAS, ex rel. CHARLES B. GRIFFITH, Attorney-general, and PAYNE H. RATNER, County Attorney of Labette County, Plaintiff, v. W. W. BRADBURY, RAYMOND CAMPBELL, C. N. PETTY, C. L. ARMSTRONG, R. F. RILEY, J. U. DICKERSON, ARTHUR O. PHELPS, as Members of the Board of Trustees of the Labette County Community High-school District, Defendants
• Court: Kansas Supreme Court

256 P. 149

123 Kan. 495

THE STATE OF KANSAS, ex rel. CHARLES B. GRIFFITH, Attorney-general, and PAYNE H. RATNER, County Attorney of Labette County, Plaintiff, v. W. W. BRADBURY, RAYMOND CAMPBELL, C. N. PETTY, C. L. ARMSTRONG, R. F. RILEY, J. U. DICKERSON, ARTHUR O. PHELPS, as Members of the Board of Trustees of the Labette County Community High-school District, Defendants

No. 27,346

Supreme Court of Kansas

May 7, 1927

Decided January, 1927.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Nature of Writ--Public Officers Not Compelled to Bring Action Against Themselves. Mandamus is a discretionary writ and it will not issue to compel a board of high-school trustees to commence an action in their official capacity against themselves individually to recover funds of the district unlawfully expended by them to purchase and operate busses to transport pupils of the district to and from school--there being statutory authority for the bringing of a civil action in the name of the state on the relation of the county attorney for the recovery of the funds, in which action the important desideratum of adverse parties will be supplied without which the orderly procedure for the administration of justice between litigants cannot be assured.

2. SCHOOLS--Disqualification of Board to Bring Action--Action in Name of State. Where an official board is disqualified by interest or other sufficient circumstance from maintaining an action of public concern which it would otherwise be their duty to bring, such action may be brought on the relation of the county attorney in the name of the state under authority of R. S. 19-702.

William A. Smith, attorney-general, L. E. Goodrich and Payne H Rather, both of Parsons, for the plaintiff.

E. C. Clark, of Oswego, and E. L. Burton, of Parsons, for the defendants.

OPINION

DAWSON, J.:

The state asks this court to compel the defendants, who constitute the board of trustees of the Labette county community high-school district, to bring an action in their official capacity against themselves individually to recover a considerable amount of the public funds of the district which defendants unlawfully expended in the purchase and operation of three motor busses to carry the pupils of the district to and from school. This action is more or less sequential to State, ex rel., v. Cruzan, 120 Kan. 316, 243 P. 329, where this court affirmed a judgment enjoining these defendants from the expenditure of the school district's funds for such purposes.

While that decision put a stop to such use of the district's funds, it could not directly undo what had already been unlawfully done. Busses had been bought and paid for with the district's money. Further expenditures had been made to operate the busses.

To the alternative writ issued herein defendants make separate answers and returns, in substance as follows:

That in the purchase and operation of the busses to transport pupils to and from school, defendants saved $ 4,968 which would otherwise have had to be expended for tuition for pupils belonging to this district who would have attended other schools; that of the $ 4,600 which the busses cost, $ 900 came out of an unofficial fund known as the "Activities fund" derived from miscellaneous sources--football, basketball, profits on sales of "annuals," musical and lyceum courses and the like, and which had been donated by those concerned therewith toward the purchase of the busses, leaving the net cost of the busses to the taxpayers at the sum of $ 3,700; and that the cost of operating the busses was $ 2,962.28; that after the temporary injunction was issued by the district court-- State, ex rel., v. Cruzan, supra--certain of the patrons of the district being desirous that their children should attend the Labette county community high-school, organized "The Farmers Cooperative Education Association" for the purpose of taking over the busses and operating them at their own expense, and accordingly the defendants, after consulting with the county attorney, sold the busses to that association for $ 3,450, of which sum $ 500 was paid into the district treasury in cash and the balance, $ 2,950, in the form of a promissory note bearing 6 per cent interest, and which the district now holds and which is worth its full face value in cash. The answer of the defendant Bradbury, which is typical, continues--

"Thus said district received and retained the benefits of the tuition saved in the sum of $ 4,558.50; cash $ 500 and note $ 2,950 from the sale of busses, making a total benefit received and retained by the district in the sum of $ 8,008.50 while the outlay of public funds was but $ 6,662.28 or an actual profit to the district in the sum of $ 1,346.22 by reason of the purchase and operation of the busses."

Other matters pleaded in the answer are of little significance--that the county superintendent, Eva E. Cruzan, ex officio president of the board of trustees, never voted to buy the busses or expend public funds to operate them; that the attorney-general's advice was sought concerning the power of the defendants to buy and pay for the busses, but that his advice was not forthcoming until too late to guide these defendants; and that in the sale of the busses defendants consulted the county attorney, who told them he did not care what they did so long as they showed him a receipt from the district treasurer showing that the funds expended without authority of law had been returned to the school-district treasury--

"And this defendant further says that he acted in good faith in the belief that the law did not forbid the board from purchasing and operating these busses, and after a canvass of the entire district and a report from the committees that the taxpayers and patrons of the district desired the purchase and operation of the busses, and with the honest belief that it was a good business proposition and would save money to the district, which it proved to do, and with the further thought that it would enable several pupils in the district to attend high school that could not otherwise attend any high school."

Against the several answers of defendants the state filed a demurrer and a motion to quash, and the matters thus raised have been pressed on our attention in oral argument and in printed briefs.

Touching the principal matters specially pleaded in defendants' answers--the alleged saving of the district's funds by the purchase and operation of the busses to carry to and from school the pupils who lived at a considerable distance therefrom rather than pay their tuition in other more convenient districts, and the taking of an interest-bearing promissory note for the deferred payments on the busses when they were sold--this court is constrained to hold that these matters are altogether insufficient to excuse the defendants from some proper and effective action to get back into the school treasury the moneys heretofore unlawfully expended. If the cost of paying tuition of some of the district pupils attending school in other districts is a lawful charge on the funds of the Labette county community high-school district and is more than it would cost to furnish transportation for such pupils to and from school in their own district, that is a matter which the legislature could and probably would correct if the fact were called to its attention. Legislative sanction has been given to expenditure for such transportation in common-school districts. (R. S. 72-601; State, ex rel., v. Cruzan, supra.) However, we have to deal with the law as it is, not as it might be.

This court disapproves the suggestion of counsel that the defendant board of trustees does not have power to bring an action to recover moneys wrongfully paid out of the district treasury. Since it was defendants' duty to care for and conserve the funds of the district and devote them only to lawful uses, the duty to recover such funds which they have disbursed without legal authority is a necessary corollary thereto. On this topic this court has said:

"While the powers of a public officer or board are those and those only which the law confers, yet when the law does confer a power or prescribe a duty to be performed or exercised by a public officer, the powers granted and duties prescribed carry with them by necessary implication such incidents of authority as are necessary for the effectual exercise of the powers conferred and duties imposed." ( State, ex rel., v. Younkin, 108 Kan. 634, 638, 196 P. 620.)

Still less consequential are the other matters pleaded in the answers and suggested in defendants' brief. The fact that the county superintendent did not vote to buy the busses would not necessarily excuse her from any duty devolving on her as ex officio chairman of the board of trustees to set about the task of recovering or recouping the moneys unlawfully expended. Neither would the advice or acquiescence of the county attorney in what the...