State v. Durkee

1. Officers: Public Interests. The interests of the public require that the duties and functions of a public office should be performed by some one, as well during the pendency of litigation concerning the right to such office as at other times. [Brady v. Sweetland, 13 Kan. 45; Braidy v. Theritt, 17 Kan. 471; Saline Co. v. Anderson, 20 Kan. 301. But see State v. Buckland, 23 Kan. 259.] 2. Quo Warranto: Temporary Injunction. In an action in the nature of quo warranto against officers defacto who claim to be officers de jure, it is not error for the judge of the court below to dissolve a temporary injunction granted to restrain said officers defacto from exercising the duties and functions of their respective offices pending the litigation.

Error from Eussell district court. The action below grew out of a county-seat controversy. The county of Eussell was duly organized, and the town of *Eussell designated as the temporary county-seat. The first election was held September 15, 1872, for the permanent location of the county-seat, and for the election of county officers. A canvass of the votes made by the temporary commissioners showed a majority in favor of Bunker Hill for the county-seat. The county officers declared elected duly qualified. The friends of Eussell claimed that fraudulent votes had been cast, and proposed to contest the election. Two of the county commissioners, and some other officers, went to' Bunker Hill as the county-seat. One county commissioner, the county clerk, and some other officers remained at Russell. At the general election held on the fifth of November, 1872, votes were cast at all the precincts in said county for certain candidates for the offices of county clerk, county treasurer, county attorney, county surveyor, clerk of the district court, and county commissioner for the First commissioner district. Some of the precincts made their returns to Russell, and others to Bunker Hill. The one commissioner and clerk at Russell filled the board, (section 10, c. 25, Gen. St.,) and made a canvass there. The two commissioners at Bunker Hill appointed a clerk, (section 42, c. 25, Gen. St.,) and made a canvass there. All the officers declared elected by these two boards of canvassers, respectively, qualified as such officers. Those receiving their certificates from the Russell board commenced proceedings under sections 85 to 105 of chapter 36, Gen. St., to contest the election, and this action was then instituted on behalf of the Bunker Hill claimants. The petition below is entitled, “The State of Kansas, Plaintiff, against H. J. Cornell, Stillman Mann, F. A. Ham, E. W. Durkee, W. G. Eastland, Asa Kinney, J. M. Dunlap, George A. Landis, F. P. Arbuckle, and B. Pratt, Defendants.” It is signed, “P. T. Pendleton, County Attorney of Ellsiuorth County,” and is verified by John M. Bradbury. The petition alleges that at the said election held on the fifth of November, 1872, in and for said Russell county, votes were cast for certain candidates, (naming them,) and that at the Bunker Hill canvass the “board of canvassers, after such canvass, did duly declare” that J. W. Dollison *was duly elected county clerk; C. M. Harshbaugh, county attorney; John M. Bradbury, clerk of the district court; James Sellers, county surveyor; John Fritts, county commissioner for the First commissioner district; A. L. Yoorhis, county treasurer; and R. Y. Kennedy, register of deeds; that said persons received certificates of election accordingly; that they duly qualified, etc.; that defendant Durkee was not at any time the county clerk of said county. The petition then proceeds: “The plaintiff further says that the defendants fraudulently confederated together with the intent and for the purpose of defeating the will of the people in the election of the persons so elected as-aforesaid, and to oust the parties of their several offices so declared by the board of canvassers to be elected and entitled to the same as aforesaid, and in pursuance thereof did fraudulently claim that E. W. Durkee was the county clerk of said county, and said Durkee did then claim to be such county clerk, and did then take upon himself the duties of said office; and the said other defendants, voted for at said election, did claim to be the duly-elected persons to the said offices, instead of the said other parties aforesaid mentioned, to whom the certificates were issued, and did all claim to act as and exercise the duties of the said several offices, respectively, instead of the legally declared elected persons aforesaid, and did then and have ever since claimed the possession of the books, papers, and records of the said offices, respectively, and claim to own and possess the said offices, and did and have usurped, intruded into, and unlawfully kept the said persons elected to and holding the certificates aforesaid out of said offices, and claim to hold the said offices, respectively, to the damage of the said parties holding said certificates $1,000; and that in pursuance of said confederation the said E. W. Durkee, W. G-. Eastland, Asa Kinney, J. M. Dunlap, Geo. A. Landis, P. P. Ar-buckle, and B. Pratt filed with said Durkee (claiming him to be the county clerk of said county) notice of a contest of said election for the offices aforesaid, on the grounds of fraud on the part of the said [Bunker Hill] board of county canvassers in their canvass of the vote of said county; and the said Durkee, fraudulently usurping the office of county clerk aforesaid, did then file with the defendant H. J. Cornell, the probate judge of said county of Russell, in pursuance of said confederation, a notice of said contest; and the said Cornell, *in pursuance of said confederation, and with the intent as aforesaid, fraudulently thereupon selected as his associates to try said contest the defendants Stillman Mann and P. A. Ham, * * * who have consented to serve, and are acting as such associates of the said probate judge in said contest, in pursuance of the said confederation, and with the intent to oust, by. pretended legal proceedings, and fraudulently, the said contestees who hold the certificates aforesaid. And in pursuance of said confederation, the said probate judge, and the said associates so selected as aforesaid, have met at the town of Russell in said county, a place not the county-seat of said_ county, and are now in session at said place in pursuance of said' intent, and are there holding a pretended court of inquiry or contest in regard to the election of the parties aforesaid; that said court, so convened as aforesaid, at the place aforesaid, with the confederation and intent aforesaid, are by physical force and power, without any regard to law or legal rules, in fraud and contravention; of the rights of said several parties declared to be and who are the-legal officers of said county, is about to declare the said several defendants [the Russell claimants] the legally elected officers of the.said county, and to oust the legally elected and qualified officers, to-wit, [the Bunker Hill claimants,] unless restrained by the order of this court; and that such ouster will work great and irreparable injury to the said officers, and to the people of said county. And said state of Kansas saith that the said probate judge, and the said associates by him selected, have no jurisdiction in the premises, and that, their said action is wholly without the forms of law, and void; and yet that their action will greatly injure and disturb the said several officers in the discharge of their duties unless restrained by an order of this court. “Wherefore, the state of Kansas prays that this court may inquire the right and authority of the said several defendants so usurping and unlawfully holding the said several offices, and that in the mean time the said several parties defendant may be restrained from their proceedings, or in anywise interfering with the said several offices, or acting as such officers, or interfering with the rights of the said several parties [Bunker Hill claimants] holding said certificates, or the books or papers belonging to either of said offices as aforesaid, and that on the final hearing of this case the said defendants may be declared not entitled to the said several offices by them claimed, and that the parties holding the certificates aforesaid may be declared the lawful and legal holders of the said offices; and for general equitable relief.” *The district judge granted a temporary injunction, as prayed for in said petition; and afterwards upon.motion and notice, and after a hearing upon the merits, said district judge, at chambers, on the twenty-fifth of February, 1873, dissolved said injunction “as to the defendants Durkee, Eastland, Kinney, Dunlap, Landis, Ar-buckle, and Pratt.” The Code of 1868, § 238, gives the plaintiff the right, under this petition, to restrain the defendants from interfering with the officers, and preventing the injury complained of. Hartwell v. Armstrong, 19 Barb. 175; Bostock v. North Staffordshire By. Co., 19 Eng. Law & Eq. 307. The petition need not state that the claimants possessed the requisite qualifications, or the number of votes given. Kelsey v. Barney, 12 N. Y. 433; People v. Byder, 16 Barb. 370. The facts in this case being admitted as stated in the petition, the petition being on the relation of the county attorney, the court should have sustained the injunction as .originally granted. When the injury threatened is of a character not easily remedied, if the injunction be refused and there is no denial that the act charged is contemplated, a temporary injunction should be granted unless the case made by the bill -is satisfactorily refuted. U. S. v. Duluth, 1 Dill. 469. The petition does not state facts sufficient to entitle the plaintiff to any relief. The plaintiff is not entitled to relief by an injunction, ■either as original, or auxiliary to any other action. The ease does not show on whose relation it was commenced. Treated as an affidavit, the petition is too indefinite; as a petition, it is bad for duplicity. *The averments of fraudulent confederation furnish no reason for an injunction. If, as alleged, the acts of the contest eourt are void, the injunction is useless. If the petition be for quo warranto, and the injunction is in aid thereof, it clearly cannot be sustained. The cases sustaining this view are fully reasoned out under the Code practice. Hartt v. Harvey, 32 Barb. 55; People v. Draper, 24 Barb. 265; Cochran v. MeCleary, 22 Iowa, 75. But if this be an action by the public, the case is much stronger against the right to an injunction, since really an injunction benefits the individual opponent more than the people. The petition, if in an action of quo ivarranto, (which the prayer makes doubtful,) is insufficient, and an injunction based thereon cannot stand. The petition admits that the defendants have possession of the offices, and also avers that the claimants have such possession. Defendants must be in or out. If in office, they can be ousted by action. If out, the action will not lie. Regina v. Armstrong, 34 Eng. Law & Eq. 288. The petition admits, by the fact of bringing this action, that defendants are officers defacto. If the defendants are not entitled to the offices, there must be some reason, and this should be alleged and proved. No such averments appear in the petition. If some one else received the highest number of legal votes, it might be good cause, but merely receiving “a certificate of election” is no sufficient reason. It follows, then, that the injunction was not improperly dissolved, but that it should never have been granted.