State v. McLaughlin , 15 Kan. 228 ( 1875 )

The opinion of the court was delivered by

Brewer, J.:

This was an action brought by the state, upon the relation of the attorney-general, to restrain the county treasurer of Brown county from further proceedings, to collect certain taxes; and the principal question presented is, as to the right of the plaintiff to maintain the action. The facts alleged are, that a school district some years since made an arrangement with a church society by which, upon condition that the latter advanced a thousand dollars, the former should, in building the public school-house, make arrangements for a room for the church services of the latter; that this arrangement was carried into effect, and to secure this advancement two bonds of the district were executed, delivered to the church, and still remain in its possession; that the bonds maturing, a levy was duly made to pay them off, and that proceedings had advanced so far that the defendant, the county treasurer, had possession of the tax-roll, and was proceeding to collect, with other taxes, the tax for this purpose. The church and the county treasurer are the only parties made defendants. It is nowhere alleged that any taxpayer in the district questioned the legality of the tax, or had any objection to paying his proportion of the amount necessary to redeem these bonds. Nor does it appear that there was any want of good faith on the part of the district, or the church, or that the contract was not satisfactory to both parties, and fully and fairly executed by both. The case is rested upon the naked proposition, that the contract, being ultra vires of the district, the bonds are void, and that the taxpayers of the district, whether willing not, must not be allowed to pay them. The district judge decided that the action would not lie in the name of the state, on the relation of the attorney-general. The plaintiff brought this ruling here on error. Since it- has been pending in this court the officers of the district have filed a written request and order that the case be dismissed. It is obvious, that this interference on the part of the state is unnecessary for -the protection of any rights. It is not a case where, but for the intervention of the state, an irremediable wrong will be perpetrated. Conceding the bonds to be void, each and every taxpayer has ample protection by an action of injunction. Nor is a multiplicity of suits necessary. The tax, as a tax, being illegal, all the taxpayers may unite in a single action. Hudson v. Comm’rs of Atchison County, 12 Kas. 140. It is apparent too, that no action of the corporation, the school district, is sought to be prevented. It is not even a party to the suit. So far as the bonds are concerned, the school district issued them long ago. So far as any levy of taxes is concerned, that has already been done. All that now remains is, the action of the ministerial officer, the treasurer, in collecting the taxes, and the subsequent payment of the bonds. It is clear too, that there is no express warrant in the constitution or the statutes for such an action on the part of the attorney-general. The constitution is silent as to the powers and duties of that officer. (Const., art. 1, §§ 1 and 14.) The statute defining his duties grants no such power, imposes no such duty. (Gen. Stat. pp. 986, 987.) If such power exists it must be by virtue of the general power of the state to supervise and control the action of all corporations and officers, and the fact that the attorney-general is the general law-officer of the state. While in a certain sense it may be true, that the state has a supervision and control over all its corporations and officers, yet to conclude therefrom that it is either the duty or the privilege of the attorney-general to interfere in the case of every illegal act of a corporation, or officer, would be a deduction both novel and startling. Actions of quo warranto may be brought by the attorney-general against both officers and corporations for ouster and forfeiture. (Laws of 1871, p. 276, §§ 1,2.) In the fourth clause of this first section-it is expressly provided, that the action may be brought “when any corporation abuses its power, or exercises powers not conferred by law.” It may not however follow from this that quo warranto is the only remedy. It cannot be maintained by one who has no other interest-than as a citizen and taxpayer. Miller v. Town of Palermo, 12 Kas. 14. If the wrong is of a public nature, affecting the community in genral, the state through its proper officers can alone maintain the action. Mandamus will lie at the instance of the attorney-general when the duty sought to be compelled is one of a purely public nature. Bobbitt v. Dresher, 10 Kas. 9. It will not under the same circumstances lie at the instance of a mere citizen and taxpayer. So too, we think the process of injunction may be invoked by the state in any proper case. Indeed, we know of no reason why the state may not avail itself of any of the writs and processes of the law available to individuals for the enforcement of rights, and the redress of wrongs. So that the form of the action is no objection, if the right exists in the state to interfere. It is obvious that the state as a state has no direct interest in this controversy, any more than in a controversy between individuals. The payment of these bonds may be illegal, but their payment works no greater wrong to the state than the payment by a single individual of an illegal debt. The single individual may if he chooses by appealing to the ordinary proceedings of the law protect himself against such illegal payment. So may the many taxpayers. The case of The State v. County Court, 51 Mo. 350, is cited as authority. There, by a divided court, the right of the state was sustained to interfere by injunction to restrain the county court from issuing bonds in pursuance of an illegal subscription, and the officers and collector from levying, assessing and collecting taxes to pay interest or principal of some of the bonds already issued. In reference to the levy it appeared that the county court had included the tax in the general county taxes, so that it could not be separated, and the tax-payer could not tell what part was legal and what illegal. The general doctrine was laid down, that “it is competent for the state, at common law, through its officers to maintain proceedings by injunction, to restrain public corporations from doing acts in violation of the constitution and laws of the state.”' It would seem from the opinion of the court, given by Shepley, special judge, that the action would not have been sustained if the bonds had already been issued, the tax levied, and so levied that the taxpayers by a single action could have protected themselves. Two cases are referred to in the opinion as containing full discussions of the principles involved, one that of Davis v. The Mayor of N. Y., 2 Duer, 663, in which Judge Duer reached the conclusion that in an action “brought by two taxpayers against the mayor and others to restrain the construction of a street and railroad upon Broadway, for the doing and operating of which the municipal authorities of the city had given authority,” the attorney-general was a necessary party; and the other, that of the Attorney-General v. Minur, 2 Lansing, 396, in which Judge Mullen concludes, that the only cases in which “the attorney-general was authorized to interfere to restrain corporate action, or was a necessary party to an action for that purpose, were those in which the act complained of would produce a public nuisance, or tend to the breach of a trust for charitable uses.” We have referred to these three cases, not as covering the exact question before us, but as containing full discussions of the general question of the right of the state to interfere by injunction to restrain apprehended wrong on the part of public corporations and officers. For in this case, as already noticed, corporate action has ceased, and the interference of the state is sought to restrain a ministerial officer, and that not an officer of the corporation, from discharging the ordinary duties of his office, although those duties are based partially upon the prior illegal corporate action, when the individuals affected thereby have complete and adequate remedy without multiplicity of suits, and by a single action. No authority to which we have been referred has gone so far as to sustain such an action; and we think the same cannot be maintained. As private citizens, unless specially authorized, may not interfere to compel the performance of a mere public duty, or restrain the doing of a mere public wrong, so the state, having no direct interest, may not interfere to protect individuals from the illegal acts of a public officer where such individuals have, in the ordinary course of the law, ample and adequate means of protection.

The judgment of the district court will be affirmed.

Kingman, C. J., concurring.