The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-05-07
PARSONS loses,
Judge Hazen Grants Injunction
in Asylum Case.
Decides That Board of Public
Works is NOn-Existent.

Works is Nom Existent.
Judge Hazen this morning allowed
the injunction in the Parsons asylum
case and decided that the board of pub
lie works no longer exists.
The suit was brought by Coleman and
Williams of Clay Center on the relation
of A. P. Jetmore. county attorney, ask
ing the court to enjoin the state auditor,
George E. Cole. from issuing warrants
on the state treasurer for $2S, 600 in pay
ment for the land at Parsons condemn
ed by John Seaton and Michael Heery,
acting as the board of public works, to
be used for the new state insane asy-
lum. In the decision Judge Hazen said:
THE right to have this warrant is
sued depends entirely upon the validity
of the condemnation proceedings 1t is
conceded that the board of public works
in the exercise of its power under the
right of eminent domain, can take pri-
vate property for public use.
The state has challenged the legality
of the condemnation proceedings, claim
ing that John SeatOn and Michael Heery
do not constitute the board of public
works and have no authority to act as
such, and that therefore their acts in
cOndemning this property were null and
void and that the state auditor should
be enjOined from issuing his warrant.
suit has been questioned, but if the con-
demnatiOn proceedings which form the
basis of this claim are void, then the in
junction should be granted irrespective
of the motive which prompted the bring
ing of the suit
The facts pertaining to the death of
Sol Miller and the designations of John
Seaton and Michael Heery were review
ed The last meeting of the board prior
to the condemnation proceedings was
held in June, 1897. In continuing the de-
cision says:
Were Heery and Seaton authorized
| to condemn this property as board of
| public works, and by so doing bind the
state for the payment of the appraised
| value of the property?
1T is well settled that the resigna.-
tion of a public officer is not complete
| until the proper authority accepts 1t,
| but when an officer has rendered his
| resignation and it has been accepted
| by the proper officer, the resignation
| becomes complete and the Office vacant.
Therefore, when John SeatOn rendered
| his resignation to the governor and it
/ was accepted the office to which he had
/ been appointed became vacant; and
/ Sol Miller having died before that time
! there were two vacancies in the. board
| of public works. While this condition
| remained there could be no valid act
| of the board; for one member OF the
board would not be authorized to act.
1T is practically conceded by counsel for
| defendants that the action of Seaton and
Heery in cOndemn1ng this property, II Sus-
/ tained must be upon the theory that
/ they were defactO officers and being de-
! factO officers. their act must be treated
/ as valid. The whole theory upon which
! courts uphold the acts of officers defacto
is that the public interest demands that
the acts of such officers be sustained.
| Where a person is in the open and no
! tOriOus possession of an office with color
of right, then the public in dealing with
him are justified in assuming that his
acts are lawful, and the courts will us
ually sustain the acts of such officer upon
the ground that he is a defacto officer
although it may clearly appear that he
is not a dejure officer 1t seems cleaI
. from the facts proven in this case that II
I can not be successfully claimed that sea
/ ton and Heery were defactO officers. II
appears that both the executive and leg
islative branches Of the state government
had treated the board of public works as
I having no existence for the chief eXecu-
tive had refused to fill the vacancies cals'
? ed by the death of Miller and the reSig-
nation of Seaton. The legislature had re
fused to make any appropriation for TINS
board. but had conferred upon other state
boards and officers the duties theretOfor'
imposed upon the board of public works
our conclusion is that Sol Miller hay
ing died. John SeatCn having rendered MS
unconditional resignation, which was ac
+ | cepted by the governor, that from th'
time OF the acceptance of SeatOnS reS1g
nation the board of public works ceased
to have any legal existence and that th'
action of SeatOn and Heery in condemn
{ ing the property in questionfwas a MULTI.
2 and not binding upon the state; and tina
p / the injunction should be allowed.