Topeka Bldg. and Const. Trades Council v. Leahy
| Decision Date | 02 July 1960 |
| Docket Number | No. 41939,41939 |
| Citation | 187 Kan. 112,353 P.2d 641 |
| Parties | TOPEKA BUILDING AND CONSTRUCTION TRADES COUNCIL et al., Appellants, v. David D. LEAHY, Director, Forestry, Fish and Game Commission of the State of Kansas; Brown Brothers Construction Company, Inc., et al., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Before a private citizen may maintain mandamus against a public official, it must affirmatively appear that the plaintiff has a special interest in a plain ministerial duty which should be performed by the official under the law.
2. In a proceeding for mandamus involving the construction of G.S.1949, 44- 201 and 44-203, plaintiffs' pleading is examined and it is held: plaintiffs fail to show any special interest in themselves apart from the general public, and further fail to show any plain ministerial duty which is being violated, all as more definitely set out in the opinion.
Floyd E. Gehrt, Topeka, argued the cause, and George E. McCullough, Robert L. Kimbrough, W. L. Parker, Jr., Walter N. Scott, and Robert B. Wareheim, Topeka, were with him on the briefs for appellants.
Robert E. Hoffman, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the briefs for appellees Leahy, Salome, Knouft, Shapiro, and Smith.
Charles D. Green, Manhattan, argued the cause, and Charles S. Arthur, Manhattan, was with him on the briefs for the appellee Brown Brothers Const. Co.
A mandamus proceeding was begun in the court below by the appellants against various state officials and the Brown Brothers Construction Company. Appellants allege that the suit is brought to compel payment of the current rate of per diem wages in accordance with G.S.1949, 44-201 and 44-203. The parties defendant filed motions to quash the alternative writ which was sustained by the district court, and the plaintiffs appeal.
It would appear that the construction company has been and is engaged in the construction of the earth fill dam at the Shawnee County Lake under contract with the state Forestry, Fish and Game Commission.
In deciding that the motion to quash the alternative writ should be sustained, the district court held that there were two reasons which prevented the plaintiffs from maintaining the suit: First, plaintiffs were not the real or proper parties in interest; and second, plaintiffs could not maintain the action because the motion for the alternative writ did not show any plain ministerial duty upon the defendants to perform an official function required of them by law.
In this appeal, plaintiffs attempt to show that the district court erred in the above decision. Before turning to the above questions, perhaps it would be well to state a few more of the allegations in the motion for the alternative writ.
It is alleged that the trades council above named is an unincorporated association composed of the unincorporated trade unions whose individual members are engaged in the building and construction trades in Shawnee county. The individual plaintiffs are stated to be the officers of the council. Plaintiffs alleged they are entitled to bring the action under the provisions of G.S.1949, 44-811. This allegation is challenged by defendants, who cite the definition contained in G.S.1959 Supp. 44-802(1). We do not pause to decide the disputed question. Section 44-811 is only authority for an unincorporated labor organization to bring an action and has no particular relation to mandamus.
Another fact which is made quite clear in the motion for the alternative writ is that none of the individual members of the labor unions which compose the trade council is an employee of Brown Brothers on the project of constructing the earth fill dam involved in the case.
The allegations in the motion that the current rate of per diem wages is not being paid on the dam project is based upon an inquiry made by counsel of record for the plaintiffs which inquiry is alleged to have been made at the request of plaintiffs.
The parties are agreed upon the proposition that a motion to quash the alternative writ in a mandamus proceeding under our procedure is used to raise the same questions of law which are normally raised by a demurrer to the petition in the usual action under our code of civil procedure .
Another proposition which is equally as well established as the last rule is that private citizens, without interests or rights distinct from those of other citizens, cannot maintain mandamus to compel public officials to perform their duties. Ordinarily, such a proceeding is to be brought by the state on relation of the attorney general or the county attorney. This fundamental rule is clearly set out in the case of Dennis v. State Board of Barber Examiners, 174 Kan. 561, 257 P.2d 940. A vast number of the prior decisions of this court upon the subject are collected on page 563 of 174 Kan., on page 942 of 257 P.2d of the Dennis opinion and need not be repeated in this opinion.
We pause to note that in the Dennis case, it was alleged that plaintiffs constituted seventy-five percent of the practicing barbers in the 31st judicial district and that they were petitioning the court to mandamus the state board of barber examiners to act under G.S.1949, 65-1823 et seq., and particularly under section 65-1830. The last section authorized the plaintiffs to file a petition with the barber board asking the board to establish minimum prices for their judicial district. Yet, the decision of this court was that plaintiffs did not state such a special interest as to enable them to maintain mandamus.
In this case, plaintiffs rely on G.S.1949, 44-201 and 44-203 to set out duties which they allege they may enforce by mandamus. A quick reading of the two sections will show at once that they are strangely similar. One may wonder why the legislature would enact two such similar statutes. Much light may be gathered on that matter by reading the opinion in the case of State v. Blaser, 138 Kan. 447, 26 P.2d 593, written by the then Mr. Justice Harvey. On page 452 of 138 Kan., on page 596 of 26 P.2d will be found the beginning of a complete history of this legislation up to the year 1933. On page 454 of 138 Kan., on page 597 of 26 P.2d of the Blaser opinion, will be found the story of the revision of the section f...
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Ambrosier v. Brownback, 115,982
...lie for the performance of an act involving discretion on the part of a public official.”) (citing Topeka Bldg. & Construction Trades Council v. Leahy , 187 Kan. 112, 353 P.2d 641 [1960] ); Martin, Governor v. Ingham , 38 Kan. 641, 651, 17 P. 162, 168 (1888) (governor subject to mandamus on......
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Kansas Bar Ass'n v. Judges of the Third Judicial Dist.
...action, and the motions to dismiss were properly sustained." 187 Kan. at 179. The Judges point to Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960). There, an unincorporated trade association sought a writ of mandamus from the district court ordering the......
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Arney v. Director, Kansas State Penitentiary
...will not lie for the performance of an act involving discretion on the part of a public official. Topeka Bldg. and Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960). In Lauber v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 128-129, 402 P.2d 817 (1965), we "It has u......
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R. D. Andersen Const. Co., Inc. v. City of Topeka, 51245
...and the like are not mentioned in the Kansas statute nor have they been considered in our cases. Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960); State v. Blaser, 138 Kan. 447, 26 P.2d 593 (1933); State ex rel. v. Construction Co., 99 Kan. 838, 162 P. ......