State ex rel. Cherokee-Lanyon Spelter Co. v. Shufford

SYLLABUS BY THE COURT. 1. Quo Warranto — Annulment of Municipal Chartei — Parties. A private person cannot use the name of the state in an action of quo warranto for the disorganization of an incorporated city when the purpose of the action is to withdraw the property of such person from municipal taxation. 2. Petition — -Joinder of Actions. A petition in such an action which avers a cause of action against the mayor, councilmen and assessor of the city to disorganize the municipality, and also one against the county clerk and the county treasurer to enjoin the collection of a tax levied against the property of the plaintiff in such city, contains two causes of action which are improperly joined. 3. Municipal Corporations — Action to Annul Charter — Parties. An action to annul the charter of an incorporated city on the ground that it was illegally organized must be brought in the name of the state, by some officer authorized to represent the interests of the public, as the attorney-general or the county attorney. 4. Injunction — Collection of a Tax — Action in the Name of the Staté. A suit cannot be maintained in the name of the state to enjoin the collection of a tax levied by a city for municipal purposes against the property of a private citizen merely because the owner of the property claims the tax to be illegal.

Error from Allen district court; Oscar Foust, judge. STATEMENT. This is an action in quo warranto to cancel the charter of the city of Gas, in Allen county, and to enjoin the collection of taxes levied upon real estate situated within the limits of that city. A demurrer was sustained to the petition, and, the plaintiff electing to stand upon its pleading, the case was dismissed at the cost of the plaintiff, and it brings the' case here. Facts sufficient to show the controversy, briefly stated, are that in 1901 steps were taken which resulted in an order of the board of county commissioners incorporating the city of Gas as a city of the third class. This order included within the boundaries of the city the real estate in controversy, which consists of about forty acres of unplatted land owned by the CherokeeLanyon Spelter Company. Afterward, in 1904, the governor of the state, upon a showing as required by law, issued a proclamation declaring Gas to be a city of the second class. The land in question was assessed and taxed for city purposes. The owner of the land, through its manager, C. H. Tolle, commenced this action June 12, 1905, in the district court of Allen county. The action was entitled, “The State of Kansas, upon the relation of C. H. Tolle, v. D. W. Shufford,” etc. The mayor and councilmen, the assessor of the city, and the clerk and treasurer of the county, were each personally named as a defendant. The body of the petition commenced: “Now comes B. E. Clifford, the duly elected, qualified and acting county attorney of Allen county, Kansas, on the relation of C. H. Tolle, general manager of the Cherokee-Lanyon Spelter Company, of said county, and gives the court to understand and be informed,” etc. The petition contained two causes of action, one against the city officers to set aside the city organization, and one against the county officers to enjoin the tax levied against the land of the spelter company. Afterward, the petition was amended in its introductory paragraph so as to read: “Now comes B. E. Clifford, the duly elected, qualified and acting county _ attorney of Allen county, Kansas, and brings this action for and on behalf of the state of Kansas, on the relation of C. H. Tolle, general manager of the Cherokee-Lanyon Spelter Company, of the said county, and gives the court to understand and be informed,” etc. To this petition the defendants filed a joint and .several demurrer, which, omitting the caption, reads: “(1) Because said petition does not, nor does either-of the alleged causes of action therein, state facts sufficient to constitute a cause of action in favor of said plaintiff and against said defendants, or either of them. “(2) Because said petition shows upon its face that said plaintiff has no legal capacity to sue on the alleged second cause of action stated in said petition. “ (3) Because said petition shows upon its face that there is a defect of parties plaintiff, in this, that said action is not brought or prosecuted by the CherokeeLanyon Spelter Company mentioned in said petition, the real .party in interest. “(4) Because said petition shows upon its face that several alleged causes of action are improperly joined therein, in this: (1) That an alleged cause of action in favor of the state of Kansas is joined with an alleged cause of action in favor of the Cherokee-Lanyon Spelter Company mentioned in said petition; and (2) that an alleged cause of action in favor of said plaintiff and against the defendants, D. W. Shufford, as mayor of Gas, George Davis, W. A. Thompson, Ed. Luckey, D. Nachtschatt, E. T. Wilson, D. C. Dority, J. H. Hunt, and J. C. McCracken, as councilmen of Gas, and John W. Tefft, as city assessor of Gas, Kan., is joined with an alleged cause of action against J.-W. Kelso, as county clerk of Allen county, Kansas, and Frances Wilson, as county treasurer of said county; and (3) that an alleged cause of action in quo warranto is joined with an alleged cause of action to enjoin the collection of the tax mentioned in said petition.” This demurrer was sustained, and the petition was again amended by changing the title so' as to read: “The State of Kansas, on the relation of the CherokeeLanyon Spelter Company, plaintiff, v¡ D. W. Shufford,” etc. The introductory paragraph was changed so as to read: “Comes now B. E. Clifford, the duly elected, qualified and acting county attorney of Allen county, Kansas, and brings this action on the behalf and for the state of Kansas, on the relation of the Cherokee-Lanyon Spelter Company, and gives the court to understand and be informed,” etc. The defendants again demurred, upon the same grounds as before, and the demurrer was sustained. This is the ruling of the court which the plaintiff in error claims was erroneous. A temporary injunction was granted restraining the collection of the tax of which the plaintiff complained.