State v. Wilson

• Decision Date: 01 November 1883
• Parties: THE STATE OF KANSAS, ex rel. A. H. Vance, County Attorney of Shawnee County, v. J. C. WILSON
• Court: Kansas Supreme Court

2 P. 828

30 Kan. 661

THE STATE OF KANSAS, ex rel. A. H. Vance, County Attorney of Shawnee County, v. J. C. WILSON

Supreme Court of Kansas

November 1, 1883

Decided July, 1883.

Original Proceedings in Quo Warranto.

ACTION brought in this court, June 1, 1883, by The State of Kansas on the relation of A. H. Vance, county attorney of the county of Shawnee, against Joseph C. Wilson, to oust the defendant from the office of mayor of the city of Topeka, a city of the first class. June 20, 1883, the defendant demurred to the petition and to every allegation and charge therein contained, and for causes of demurrer stated the following:

"1. The court has no jurisdiction of the person of the defendant.

"2. The court has no jurisdiction of the subject-matter of the action.

"3. The plaintiff has not the legal capacity to sue.

"4. The plaintiff, on the relation of A. H. Vance, county attorney of the county of Shawnee, has not the legal capacity to sue.

"5. There is a defect of parties plaintiff.

"6. There is a defect of parties defendant.

"7. The petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant."

The opinion herein, filed at the November, 1883, session of the court, contains a sufficient statement of the facts.

Petition sustained.

A. H Vance, county attorney, G. C. Clemens, A. B. Campbell, and Wm. Higinbotham, for The State.

Waters & Ensminger, J. B. Johnson, J. R. Hallowell, and Lucien Baker, for the defendant.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This is an action in the nature of quo warranto, commenced in this court by the county attorney of Shawnee county, Kansas, to oust the defendant from the office of mayor of the city of Topeka, a city of the first class. The grounds upon which the action is founded are various alleged acts and omissions on the part of the defendant, affecting the due enforcement of the prohibitory liquor law, a certain prohibitory liquor ordinance, and certain laws and ordinances relating to liquor saloons, bawdy houses, and gambling houses. It is claimed by the plaintiff that by reason of these acts and omissions the defendant has forfeited his office.

"Original jurisdiction in proceedings in quo warranto" is conferred upon the supreme court by the constitution of the state. (Const., art. 3, § 3.) And this jurisdiction so conferred is just what was understood to be quo warranto jurisdiction at the time when the constitution was adopted. As throwing light upon the last proposition, see Leavenworth Co. v. Miller, 7 Kan. 479; The State v. W. W. Rly. Co., 34 Wis. 197. This jurisdiction cannot be abolished, or increased, or diminished, by the legislature. (The State v. Allen, 5 Kan. 213; Graham v. Cowgill, 13 id. 114; The State v. Graham, 13 id. 136.) Of course the legislature has the power indirectly to affect the exercise of this jurisdiction, as it has the power directly or indirectly to affect almost every other matter or thing coming within the purview of the constitution. It may increase, or diminish, or create, or destroy any particular instances in which this jurisdiction may be exercised; but it cannot increase, or diminish, or abolish, or destroy the jurisdiction itself. Thus, it may create additional offices or additional grounds for forfeiture, and thereby increase the number of instances in which the court may exercise its jurisdiction; or it may abolish some of the offices already existing, or some of the grounds for forfeiture already existing, and thereby diminish the number of instances in which the court may exercise its jurisdiction. In this way it may really create or destroy instances in which the jurisdiction may be exercised. But within these limitations whenever a proper case arises for the exercise of quo warranto jurisdiction, as quo warranto jurisdiction was understood and known at the time of the adoption of the constitution, this court may take jurisdiction of the case and determine the same, whatever may be the enactments of the legislature upon the subject.

Applying these preliminary remarks to the subject of quo warranto jurisdiction as it affects public offices, we would say that we think the supreme court has ample jurisdiction to oust any person from office who is holding the same without any sufficient right thereto; and this whether the office has been usurped, or whether the incumbent's term of office has expired by lapse of time, or whether the incumbent has forfeited his right to hold the office any longer by reason of some official misconduct on his part. And we think this court has jurisdiction to so oust the incumbent from office where he is holding the same without right, although the question of right to hold the office, or the question of forfeiture, if that is in the case, has never before been presented to any court for judicial determination. This court may determine the question of right or the question of forfeiture for itself. (The State v. Allen, ante; The State v. Graham, ante; The Commonwealth v. Walter, 83 Pa. 105.) But of course before this court can oust an officer from his office it must be judicially determined that he has no right to hold the same. And if the alleged ground for ousting the officer is that he has forfeited his office by reason of certain acts or omissions on his part, it must then be judicially determined, before the officer is ousted, that these acts or omissions of themselves work a forfeiture of the office. Mere misconduct, if it does not of itself work a forfeiture, is not sufficient. (Cleaver v. The Commonwealth, 34 Pa. 283; Brady v. Howe, 50 Miss. 607, 625; Lord Bruce's Case, 2 Strange 819; The King v. Ponsonby, 1 Ves. Jr. [Ch.] 1, 7; The People v. Whitcomb, 55 Ill. 172, 176; High on Extraordinary Legal Remedies, § 618.) The court has no power to create a forfeiture, and no power to declare a forfeiture where none already exists. The forfeiture must exist in fact before the action of quo warranto is commenced. (See authorities above cited, and The State v. Hixon, 27 Ark. 398, 402.) There may also be cases where this court would not exercise its jurisdiction, as where the question of forfeiture is at the same time being litigated in some other court of competent jurisdiction, or where some other plain and adequate remedy exists. And the court may also in some cases have a discretion as to whether it will exercise its jurisdiction, or not. We shall have more to say hereafter with reference to these questions.

In the present case it is admitted that the defendant is eligible to hold the office of mayor; that he was duly elected thereto--or rather, that he was duly reelected thereto--in April, 1883; that he immediately afterward qualified and took possession of the office, and is now in the full possession of and holding the same. But it is alleged that between April 10, 1883, and June 1, 1883, the time when the present action was commenced, the defendant was guilty of various acts and omissions, by reason of which he has forfeited his office. Now if it is really true that the defendant has forfeited his office, then it will be the duty of this court to oust him therefrom, or at least unless some other plain and adequate remedy exists. But the question arises: Has he forfeited his office? For as before stated, unless these acts and omissions, ipsis factis, create a forfeiture, this court has no jurisdiction in quo warranto, or in any other proceeding, to oust the defendant from his office. It makes no difference whether the defendant has done right, or wrong; for as before stated, unless his acts and omissions of themselves work a forfeiture, this court has no power to oust him. The statutes of Kansas (§ 78 of the first-class-city act) provide that the mayor, police judge and councilmen "shall hold their offices for two years and until their successors are elected and qualified;" and of course they will hold their offices for that period of time, unless the offices become vacant in pursuance of some provision of law. Now there are various provisions of law with reference to vacancies occurring by reason of death, resignation, removal from the place where the office is to be held, removal from office by amotion, and removal from office on the ground of misconduct working a forfeiture. With reference to removal from office by amotion, or on the ground of misconduct working a forfeiture, counsel for the defendant cites the following statutes: section 11, subdivision 36, and §§ 99 and 104 of the first-class-city act, (Laws of 1881, ch. 37;) § 213, in connection with §§ 207, 208 and 209 of [2 P. 832] the act relating to crimes and punishments, (Comp. Laws of 1879, ch. 31;) and § 12 of the prohibitory liquor law of 1881, (Laws of 1881, ch. 128.)

Counsel for the defendant claim that all these sections apply to the mayor, as well as to other officers, except § 12. Counsel for the plaintiff admit this, except that they make the further claim that said § 11, subdivision 36, does not apply to the mayor. Now whether it does or not, we think it is clear that the defendant has not forfeited his office under it. And indeed we do not think that the defendant has forfeited his office under any of the foregoing sections, or under any other section of the laws of Kansas. Said § 99 has no application to this case, for the reason that the plaintiff is not charged with any of the wrongful acts or omissions mentioned in that section. Under said §§ 104 and 213, before the defendant can be held to have forfeited his office he must not only have committed the misconduct therein referred to, but he must also be tried before a criminal court, where he must be proved to be guilty beyond all reasonable doubt, and must be found...