State v. Galena Water Co.

65 P. 257, 63 Kan. 317, 1901 Kan. LEXIS 140

• Court: Supreme Court of Kansas
• Decided: June 8, 1901
• Docket: No. 12,624
• Status: Published

Opinion

Per Curiam:

This is a proceeding brought by the state, on the relation of the county attorney of Cherokee county, to oust the Galena Water Company from exercising the functions and powers of a- corporation under the laws of the state. The failure of defendant to make and file with the city clerk a sworn report, as required by section 5, chapter 82, Laws of 1897 (Gen. Stat. 1901, §657), is made the basis, of the proceeding brought against it. Section 6 of the act imposes a penalty on the officers of a corporation of a fine of not less than $500 nor more than $1000 for neglect or refusal to make the statement required by section 5, and provides further that the corporation shall forfeit its right to collect its charges for water furnished to the municipality, by ■ such failure or neglect. Nowhere in the law is the penalty of forfeiture of corporate franchises inflicted for neglect of the duty mentioned. In Leavenworth v. Water Co., 62 Kan. 643, 64 Pac. 66, this court held that the making of the report may bb compelled by mandamus. Such remedy exists in addition to the fine and the forfeiture of its right to collect water-rents, provided for in section 6 of the act.

There are adequate and available remedies other than the forfeiture of corporate franchises. This being so, it has been 'frequently decided by this court that a proceeding like the present will not lie. (The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828; Tarbox v. Sughrue, 86 id. 225, 12 Pac. 935; Weston v. Lane, 40 id. 479, 20 Pac. 260, 10 Am. St. Rep. 224; City of Topeka v. Water Co., 58 id. 349, 49 Pac. 79.)

The demurrer to the petition will be sustained.

Smith, Cunningham, Ellis, JJ.