State ex rel. Meier v. McCrillus , 4 Kan. 250 ( 1868 )

By the Gotort,

Kingman, C. J.

At the instance of counsel for relator, this court allowed an alternative writ of mandamus in. this case, without argument, in order, inasmuch as grave and complicated questions were involved, that full argument might be heard on both sides. The respondents appearing move to quash the alternative writ, bécause—

1. The writ is defective in matters of substance.

2. The relator has a plain and adequate remedy in the ordinary course of law.

3. There is no liability on the part of tire respondents, or any of them, to the relator, as the bonds he owns are invalid and void.

The writ must be quashed. While we think the writ is defective in some respects, we shall not stop to examine the form of it, but rest our decision on the second ground, which finally disposes of the case. The facts, as they appear in the writ, and so far as the statement of them is necessary to understand our views on this point, are briefly these:

The relator is the owner of certain bonds and coupons attached, amounting to the sum of $1,811.25, of the county of Leavenworth, which bonds became due and payable on the 1st day of March, 1867.

The county board of Leavenworth county, in 1866, assessed and levied a tax on the taxable property of Leavenworth county, to pay off these bonds and coupons, and others of the same class. The county treasurer collected said tax, so levied and assessed, sufficient to pay said bonds and coupons, and others of the same character. The relator presented his bonds, with coupons attached, to the county treasurer, and demanded payment thereof, which said treasurer refused to make.

He also presented them to the board of county commissioners and demanded payment, but was refused, and the said board also refused to order them to be paid. The county board, at an earlier period, made an order, directing the treasurer not to pay them, and they still remain unpaid. Under this state of facts, and for the purpose of this case, considering the liability of the county to the relator as undoubted and established, is the relator entitled to the writ ?

The law is that this writ shall not be issued when there is a plain and adequate remedy in the ordinary course of law. Qornrp. L., p. 226.

The facts, show that the money is now in the hands of the treasurer; that it is due to the relator, and he refuses to pay it over. Is there not a plain and adequate remedy in the ordinary course of law ? ' An action against the treasurer on bis bond is as plain a remedy as a suit upon a note against a delinquent debtor, and if, as was suggested by the counsel on both sides, the question of the validity of the bonds is to be raised, such an action is a more appropriate one to try that question than is afforded by this writ. It is, however, urged that the county commissioners have ordered the treasurer not to pay over the money. As a defense to an action against the treasurer, this would amount to nothing, as it would be no valid answer to the claim to say that the board had directed him not to do that which the law had enjoined upon him as a duty to do. This seems to us conclusive as to the treasurer. As to the county commissioners, the case is still more decisive. The law requires them to levy the tax in 1886 to pay the bonds and interest, and to continue to do so as the bonds mature, till all- are paid. This they have done, as is shown by the writ. But they went further — they ordered the treasurer not to pay-over the money. This order was beyond their authority, and as it would be no justification to the treasurer not to do it, remains as though it had never been made.

The county board had no more to do with that matter than anybody else. The order was as binding as though made by a merchant of Leavenworth upon his books.' The bonds are ascertained claims, not in any wise depending on the action of the board for their validity. They have no power to audit or allow them, or to disallow them. This power over them was ended when they passed into other hands for a valid consideration. Their duty was ended when they levied a 'tax to pay them off. They are not to be paid on the warrant of the board, but upon presentation to the treasurer, and they -will, after payment, be vouchers for the disbursement of the money. It is either his duty to pay them, or not, without any reference to the action of the county board ; so that this action in making the order was simply in law a nullity, and if we ordered them to rescind it, the same condition of things would exist.

• These are, briefly, the reasons why the writ ought to be quashed and the action ended.

All the justices concurring.