Brady v. Sweetland

13 Kan. 41

• Court: Supreme Court of Kansas
• Decided: January 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The plaintiffs in error who were plaintiffs below filed a petition in the district court asking for a certain injunction to restrain the defendants from committing certain acts which the plaintiffs alleged the defendants were then committing and about, to commit. The district judge granted a temporary injunction to restrain the defendants from committing said acts, but afterward on motion of the defendants dissolved the same solely on the ground that the petition did not state facts sufficient to constitute a cause of action. No evidence was used on the hearing of said motion to dissolve the injunction, except the petition, which was sworn to, and made an affidavit as well as a petition. For the purposes then of this case we must consider the facts stated in said petition as true; and upon such consideration did the judge of the court below err? The material facts stated i-n said petition are substantially as follows: The plaintiff John T. Brady was the treasurer of school district No. 51 of Nemaha county. The plaintiff Náthaniel Slosson was the clerk of said district; and the defendant Isaac Sweetland was the director of the same. These three persons by virtue of their offices constituted the school-district board of said district. The defendant Lawrence R. Wheeler however claimed to be entitled to the office of treasurer of said school district and had previously instituted an action in the nature of quo warranto to have his rights determined, and to obtain possession of said office. This action was still pending. During the time this office was in dispute the plaintiffs, Brady and Slosson, hired teachers for said school district. About the same time the defendants Sweetland and Wheeler also hired a teacher for said school district, to-wit, the defendant D. L. Anderson. The defendants then took possession of the school-house of the district, and refused to permit the plaintiffs to have charge or control thereof, and refused to permit the teachers hired by the plaintiffs to teach therein. The injunction prayed for is to restrain the defendants from further interfering with the plaintiffs’ management and control of said school-house.

We think 'the injunction ought to be granted. Admitting for the sake of the argument that Wheeler is legally entitled to the said office of treasurer, and still as the office is occupied by another person who claims to be holding it rightfully and legally, Wheeler has no right to interfere therewith until some court in a proper proceeding therefor determines in his favor. He cannot while he is merely claiming the office employ teachers and take charge and control of the property of the district, nor can he even unite with one of the members of the school board for such a purpose. He has no right to attempt to take forcible possession of the office. He may prosecute his action of quo warranto to a final determination, and then if it be determined in his favor the court will put him in possession of the office. (Gen. Stat., 760, code §§ 656, 657.) But if the action should be determined adversely to him he will of course never get possession of the office. And pending the litigation concerning Wheeler’s or Brady’s right to hold said office, Brady, as treasurer de facto, claiming to hold the office as treasurer de jure, will have the right to hold and perform all the functions thereof unmolested by Wheeler or any one else. (The State v. Durkee, 12 Kas., 308.) The power to hire teachers and to take charge of and control the property of the school district belongs exclusively to the school-district board. (Gen. Stat., 925.) And any two members of the board may act for the board; (Gen Stat., 999, § 1, subdiv. 4.)

The judgment of the court below must be reversed, and cause remanded for further proceedings.

All the Justices concurring.