Young v. The Regents of The University of Kansas

• Decision Date: 11 May 1912
• Docket Number: 18,013
• Citation: 87 Kan. 239,124 P. 150
• Parties: JOHN M. YOUNG, Plaintiff, v. THE REGENTS OF THE UNIVERSITY OF KANSAS, Defendants
• Court: Kansas Supreme Court

124 P. 150

87 Kan. 239

JOHN M. YOUNG, Plaintiff, v. THE REGENTS OF THE UNIVERSITY OF KANSAS, Defendants

No. 18,013

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT. 1. MANDAMUS--School of Mines--"Party Beneficially Interested." The plaintiff is a citizen of Weir, the owner of a home there and the head of a family. He is a coal miner by trade and the superintendent of several coal mines in his vicinity. He desires and intends to attend the school of mines and metallurgy created by chapter 30 of the Laws of 1911, and educate himself in the branches of learning required to be taught there, having already taken a considerable portion of the courses of study provided for and he has a son whom he desires and intends to educate at the school. Held, he is entitled to maintain an action of mandamus in his own name to compel the establishment of the school, under section 715 of the civil code, which provides that the writ of mandamus may issue on the information of "the party beneficially interested."

2. STATUTES--Interpretation--Intent of Legislature. It is the duty of the court to interpret a statute designed to ameliorate social conditions and promote the general welfare of the people of the state in such a way that it may be upheld and not nullified, if it be possible to do so, and in such a way that the intention of the legislature may be carried out to the fullest extent. A casus omissus should not be acknowledged if by any reasonable interpretation the statute may be read to avoid it.

3. SCHOOL OF MINES--To Be Established by Regents of University. The duty of establishing the school of mines and metallurgy created by the statute referred to in paragraph 1 is imposed upon the regents of the University of Kansas.

Charles Stephens, and Fred A. Walker, for the plaintiff.

J. W. Green, for the defendants; C. F. Foley, of counsel.

OPINION

BURCH, J.:

The plaintiff prays for a peremptory writ of mandamus to compel the board of regents of the State University to locate and establish at Weir, in Cherokee county, the State School of Mines and Metallurgy created by chapter 30 of the Laws of 1911, which took effect on March 31, 1911, and which reads as follows:

"AN ACT creating a State School of Mines and Metallurgy, at Weir, Kansas, for the purpose of teaching the scientific knowledge of mining and metallurgy in the state of Kansas, and making appropriation therefor.

"Be it enacted by the Legislature of the State of Kansas:

"SECTION 1. A school of mines and metallurgy is hereby created for the state of Kansas, said school to be located and established at the town of Weir, Cherokee county.

"SEC. 2. The principal purpose of said school of mines shall be to teach such branches in mining and metallurgy as will give a fair technical knowledge of mines and mining, and all subjects pertaining thereto, including physics and mining, engineering, mathematics, chemistry, geology, mineralogy [mineralogy], metallurgy, the subject of shop work and drawing, the technical knowledge and properties of mine gases, assaying, surveying [surveying], drafting of maps and plans, and such other subject[s] pertaining to mining engineering, as may add to the safety and economical operation of mines within the state.

"SEC. 3. The school of mines and metallurgy herein provided for shall have a separate and distinct faculty.

"SEC. 4. The faculty of the school of mines and metallurgy shall have the power under the direction of the board of regents herein provided to confer degrees and issue diplomas, and fix a standard of grades for all students attending said school of mines, and the faculty will also have the power to make such rules and regulations for the proper control and management of the school, as they may deem necessary.

"SEC. 5. The school of mines and metallurgy shall have regular courses leading to degrees and issue diplomas, and such other special courses as the faculty may deem necessary. The regular course shall extend over a period of four years.

"SEC. 6. Said school of mines and metallurgy shall be a separate and independent institution of learning, and one of the colleges of the state, and shall be under the supervision and control of the board of regents of the State University.

"SEC. 7. At the close of each year, the board of regents shall make a report to the governor in detail, exhibiting the progress, conditions and wants of the several departments of instruction in said school. The course of study in each, and the number of names of the officers and students, the amount of receipts and disbursements, together with the nature, cost and results of all important experiments and investigations, and such other matter, including special industrial and economical statistics as may be thought useful. The board of regents shall cause the same to be printed for the use of the legislature and the people of the state, and shall cause one copy to be transmitted by mail free of expense to the secretary of the interior, and one copy to the commissioner of labor at Washington city, and one copy to the secretary of mine industries of the state.

"SEC. 8. That for the purpose of carrying out the provisions of this act there is hereby appropriated, out of any money in the state treasury not otherwise appropriated, for the fiscal year ending June 30, 1912, twelve thousand five hundred dollars, and for the fiscal year ending June 30, 1913, twelve thousand five hundred dollars.

"SEC. 9. The auditor of state is hereby authorized to draw his warrants upon the treasurer of state for the amounts and purposes specified in section 8 of this act, upon verified vouchers duly itemized and approved by the board of regents of the University of the state of Kansas."

The plaintiff alleges and by his proof shows that he is a citizen of Weir, the owner of a home there and the head of a family; that he is a coal miner by trade and is the superintendent of six large coal mines in the vicinity of Weir; that it is his desire and intention to attend the school and educate himself in the branches of learning required to be taught there; that he is eligible to enter the school and receive the instruction which it is intended to afford, having already taken much of the courses provided for; that he has a son whom he desires to educate at the school and who is eligible to enter it; and that because of the failure of the board to establish the school the plaintiff and his son are deprived of the benefit of the act. The members of the board admit that they are the regents of the University of the State of Kansas, but say that they have been sued individually and not in their corporate capacity and that as individuals they have no power to act under the statute. They say, too, that the plaintiff has not demanded of them the performance of the duties specified in the act, and consequently that they are not in default. Further answering, the regents claim that the duty to establish the school is one owed to the state and not to the plaintiff as a private individual, who shows no special or peculiar interest in the matter authorizing him to sue, and consequently that any action to compel the performance of the duty must be brought in the name of the state by its law officers. Finally, it is asserted that the duty of establishing the school is not imposed upon the regents but that their power and authority is limited to supervising and controlling the school when it shall have been established.

The two matters first urged in opposition to the granting of the writ are formal and technical.

The body of the petition shows plainly enough that nothing is asked of the regents as private individuals but that the purpose of the suit is to secure action by the corporate body designated in the statute. If any amendment be necessary to make the title of the petition correct in form such amendment will be considered as having been made.

No demand was necessary to call the attention of the regents to their duties under the statute, but if such were the case the answer gives no intimation that a formal demand by the citizen of Weir who brings the suit would have moved the regents to establish the school. On the other hand, they take the position that he has no legal right to importune them to act; that their responsibility is not to him but is to the state alone; and that they have no duty and no authority, under the statute, to establish the school. If otherwise entitled to it the plaintiff will not be denied relief because he neglected to do a formal and useless thing.

If, as the regents assert, the plaintiff has no interest in the establishment of the school which the law recognizes, he ought not to vex them with litigation about it. The statute provides that the writ of mandamus "may issue on the information of the party beneficially interested." (Civ Code, § 715.) The party beneficially interested in the discharge of a purely public duty is the public as a whole. If such a duty be neglected the public is the party injured. As a matter of good government each individual is interested in the proper discharge of the duties of public officials, but so long as his interest is merely that which he shares in common with other citizens he must look to the law officers of the state to correct official delinquencies. An individual may have, however, a particular interest of his own, independent of that which he holds in common with the people at large, in the performance of a statutory duty imposed upon some officer or board. In such cases he is not simply an indistinguishable unit of the general public, but he is the possessor of a separate and peculiar right which enables him to say that he...