State ex rel. Attorney General v. Stevens

The opinion of the court was delivered by Horton, C. J.: This is a proceeding in the nature of quo warranto, to oust from office the county commissioners, .sheriff and probate judge of Harper county. The confessed object of the institution of the action is to legally determine whether the county of Harper has a valid organization as a county. The records of the organization of August 20, 1873, would seem to be regular and valid upon their face; yet it is admitted, by all parties to the suit, that these papers were forged; that there were not twenty residents or householders in the county at the signing of the memorial or the taking of the census. The records purporting to show a valid organization, are simply “the refuge of lies and the hiding-place of falsehoods.” If this were all that is apparent in the case, then, within The State v. Ford County, 12 Kas. 441, and The State v. Sillon, ante, p. 207, we would be compelled to hold the organization of the county void, and the defendants to be wrongfully exercising the duties of their respective offices. . But the legislature has intervened since the so-called organization was had, and by its action recognized, ratified and made valid that which was fraudulent in its inception. At its session commencing January 10th, 1874, William H. Hornor was admitted as a member of the legislature, and as a representative therein from said county of Harper, and served as such member during the entire session of 1874. By section 28, chapter 77, laws of 1874, the board of county commissioners of Harper county was authorized and empowered to issue and sell or exchange the bonds of the county, to an amount not exceeding the sum of $15,000, or so much thereof as might be necessary, for the purpose of funding certain outstanding county warrants to pay the current expenses of the county for the year 1874. This act presupposed the existence at some prior time of a county organization and a county tribunal that transacted county business. From August 20, 1873, to September 1, 1873, there was at least a de facto organization of the county in existence. The governor then recognized the organization as valid, and had it proclaimed to be valid and complete. Within the authority of The State v. Pawnee County, 12 Kas. 426, the legislative recognition of the validity of such county organization made the same valid, although the original organization was defective and fraudulent. It is contended, however, by the counsel for the state, that if a de facto organization was instituted on the 20th of August, 1873, it was only temporary; and that as there never was any election in the county since, and as there have not been, since about September 1, 1873, up to August 5, 1878, any officers in the county, the said temporary and fraudulent organization ended in September, 1873, and the legislative recognitibn in 1874 had no effect to legalize or validate it. The reasoning is not sound. Eor a time, though a brief one, a de facto organization actually existed. The legislature, having the whole control of the matter, recognized such organization, and thereby ratified it. Whatever the actual facts may be, we are bound to presume that the legislature-of 1874 had full knowledge of the situation of affairs in the-county, and passed the act of that year with a complete understanding of its consequences. The removal of the officers from the county, and the failure to elect officers, did not blot out or destroy the organization, given life by legislative recognition. Judge Dillon says: “Municipal corporations may become inert, or dormant, or their functions may be suspended for want of officers or of inhabitants, but dissolved, when created by any act of the legislature, and once in existence, they cannot be, by reason of any default or abuse of powers conferred, either on the part of the officers or inhabitants of the incorporated place. As they can exist only by legislative sanction, so they cannot be dissolved, or cease to exist, except by legislative consent, or pursuant to legislative provision.”' (Mun. Corp., vol. 'l, §112.) The same principle is applicable to counties, which are quasi municipal corporations, created by the sovereign power of the state, of its own sovereign will, for the purposes of civil administration. The point made,'that there never was any de facto organization, for the reason that the persons appointed special county officers in August, 1873, were not residents and qualified electors of the county, and were never there, is not well taken, as the record of the case does not support this assertion. The answer alleges, that these officers were appointed by Governor Osborn, and afterward removed from the county, and these allegations are admitted to be true. . Judgment will therefore be duly rendered in favor of the defendants for all costs. All the Justices concurring.