State v. Stock

• Decision Date: 11 February 1888
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. J. R. STOCK, et al
• Court: Kansas Supreme Court

16 P. 799

38 Kan. 184

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. J. R. STOCK, et al

Supreme Court of Kansas

February 11, 1888

Motion for Rehearing.

ON December 13, 1887, the defendants filed a motion for a rehearing, which the court overruled, at its session in February, 1888, and then filed the following opinion.

Motion overruled, and peremptory writ issued.

JOHNSTON J., dissents.

OPINION

Per Curiam:

Upon the motion for rehearing, the principal questions presented were, first, that the judgment of Hammond v. Garner rendered May 31, 1878, was a final determination of the matters involved in this case, and that the court in its judgment must have overlooked the provisions of article 7 ch. 36, Comp. Laws of 1885; second, that under the pleadings the illegal votes cast in favor of La Crosse cannot be impeached or excluded.

In The State v. Comm'rs of Hamilton Co., 35 Kan. 640, 643, being a proceeding to determine the county seat of that county, this court said:

"This action was prosecuted in the name of the state of Kansas by the attorney general, who has the right to prosecute and defend in the name of the state and for the state, and the state unquestionably has the right to require that all county officers shall hold their offices at the county seat; and we know of no other plain and adequate remedy which the state may resort to for this purpose."

The contention in that case was, that the legislature intended by § 113, ch. 24, Comp. Laws of 1885, to give any person interested the right to contest the election for the location of the permanent county seat, and thereby to designate the proceeding and the tribunal in which the validity of such an election should be tried and finally determined; and in the argument it was said if this were not the correct conclusion, the proceeding would be an idle and useless ceremony. It was held unanimously by this court that the authority granted to a private citizen in no way interfered with the legal rights or powers of the state, and that the state, in its sovereign capacity, apart from and independent of that section, had the power to go into the courts and have a judicial determination where the county seat of a county was in fact and law located. We think the clear implication of that decision is, that if any private citizen had contested the election as to the permanent location of the county seat prior to the commencement of that case in this court, the proceeding would not have been res adjudicata as to the state; yet under § 113, the court is given authority to try and determine the validity of an election called for the permanent location of a county seat. It is strenuously urged, however, that because the Hammond case was prosecuted under the style of "The State of Kansas, upon the relation of Daniel Hammond," that therefore it finally settled the county seat of Rush county; and that the state of Kansas has no right to make further inquiry. If such a construction be given to the statute, then the state of Kansas is without remedy to go into the courts and have a judicial determination as to the location of a county seat, if some elector has obtained judgment under art. 7, ch. 36. In other words, the contention of the defendant is in substance that the provisions of art. 7 oust the courts of all jurisdiction to hear and determine the location of a county seat at the instance of the state in its sovereign capacity, if proceedings have been commenced by an elector under said art. 7. We cannot discover that a judgment rendered in a contested county-seat case under said art. 7, ch. 36, is any broader or more conclusive than a judgment rendered under § 113, ch. 24, Comp. Laws of 1885. The Hammond case, having been brought in the name of the state upon the relation of a private citizen, did not add anything to the force of the judgment; and certainly it cannot be claimed with reason that the state was thereby a party interested, or had any authority, through its attorney general or otherwise, to control or supervise the litigation. Hammond was not a public officer; was not under official oath; and was only permitted by the statute to prosecute his action because he was "an elector who considered himself aggrieved." (Comp. Laws of 1885, ch. 36, art. 7, § 1; Garner v. The State, 28 Kan. 790.)

In most of the states it is the practice to have proceedings in mandamus prosecuted in the name of the state, or in the name of the people, upon the relation of a private party interested; but the decisions do not show that thereby the state becomes involved, or that the statute of limitations cannot be invoked.

In Iowa, it was formerly held that proceedings in mandamus should be conducted in the name of the state, upon the relation of the informant, when the object sought was to enforce a duty for mere private ends. (Chance v. Temple, 1 Iowa 179.)

In Ohio, the writ of mandamus issues in the name of the state, upon the information of the actual party in interest. ( The State v. Commissioners, 5 Ohio St. 497.)

In Illinois, proceedings in mandamus are issued in the name of the people, upon the relation of the person interested having some right to enforce. (The People v. Board of Supervisors, 47 Ill. 256.)

In all the states wherein the proceeding in mandamus is prosecuted upon the relation of a private party, although the name of the state or the people is also used, such a proceeding is treated and considered a private or personal action, and the maxim, Nullum tempus occurrit regi, has no relevancy.

In the Hammond case, the state of Kansas was not the real party to the proceeding; it was not asserting any right, and was not before the court. The application in that case was by a private individual who "considered himself aggrieved," and it was upon his application alone that the judgment was rendered. Section 4 of said article 7, chapter 36, expressly states that the elector shall be liable for costs. While Hammond was expressly authorized by the statute to maintain his action, it was, as we have before remarked, as much of a private or personal action as one instituted by an interested person under said § 113, ch. 24. Said § 113, ch. 24, does not give to the state of Kansas any remedy to compel the county officers to hold their offices at the place where the county seat is in fact located; nor does said art. 7, ch. 36, give to the state in its sovereign capacity any remedy to compel the county officers to hold their offices at the county seat. Both of the statutes named are special statutes, whereby parties interested or aggrieved may have their grievances redressed. Prior to the adoption of these and similar statutes, this court held that mandamus would not lie at the suit of a private citizen, where the citizen showed no specific or peculiar interest in himself different from that shared by the public at large. (Bobbett v. The State, 10 Kan. 9; Turner v. Comm'rs of Jefferson Co., 10 id. 16; Reedy v. Eagle, 23 id. 254; Adkins v. Doolen, 23 id. 659.) Under these statutes, parties alleging themselves interested or aggrieved are permitted to institute proceedings without showing that they have any peculiar or special interest in the result.

It is true that we held in Garner v. The State, supra, that Garner could not again litigate the matter, because he had had his day in court, and therefore was in no condition to treat the Hammond judgment as a nullity. We intended, in that case, by the language employed, to intimate that the state, upon the relation of the attorney general, had full authority to go into the courts and make inquiry as to the county seat of a county; and, if necessary, to have a judgment rendered in favor of a private citizen, under the provisions of said art. 7, chapter 36, reviewed and superseded. If the case of Garner v. Moon were to be construed as contended for by the defendants, we would unhesitatingly overrule the decision, because it would be wrong in principle, pernicious in results, and grossly unjust to the public. This case is a strong illustration of the injustice that might be accomplished, if proceedings under said article 7, chapter 36, were res adjudicata against the state.

Upon the testimony in the record, the people of Rush county voted, on February 12, 1878, for Walnut City as the seat of justice. In the Hammond case, Garner made no return or answer, and judgment was rendered against him upon default. If that decision be final, then without any investigation of the poll books, tally sheets, or ballots, indeed without any evidence whatever, but solely upon the neglect or misconduct of Garner, the county seat was changed from Walnut City to La Crosse. In all fairness and common honesty, ought a judgment rendered as that one was to be forever binding and conclusive upon the public and the state? We think not. No statute should be construed to permit such an iniquity, unless the language imperatively demands such an interpretation. Neither the superior rights of the state nor the supreme rights of the people should be permitted to be frittered away by the neglect of any private person, or public officer, if a reasonable construction of the statute will forbid such a result. The construction given to said article 7 by the counsel for the defendants not only deprives the state of its sovereign power, but permits county seats to be located hither and thither at the instance or by the neglect of private parties, regardless of the rights of the state, or the expressed will of the people. Such a conclusion would, in many counties, cause confusion to reign worse confounded.

Further the actions of Hammond and Moon were against Garner, who was only a county clerk; he had no control of the county funds,...