State ex rel. Elsbree v. Bridgman , 8 Kan. 458 ( 1871 )

Tbe opinion of tbe court was delivered by

Klngman, O. J.:

Tbis is a motion for a mandamus to compel H. 0. Bridgman, county treasurer of Labette county, to forthwith pay several county warrants held and owned by tbe relator Nehemiah P. Elsbree. Erom tbe affidavits filed it appears that tbe county of Labette sold county bonds to provide a fund for tbe payment of certain debts of tbe county; that tbe warrants held by tbe relator are a part of that indebtedness so provided for; that tbe funds arising from tbe sale of tbe bonds have come into tbe possession of tbe treasurer, and that be still refuses to pay tbe warrants of tbe relator. Briefly, “ tbe facts show that tbe money is now in tbe bands of the treasurer, that it is due to tbe relator, and tbe treasurer refuses to pay it.” Under the- decision in The State ex rel. Meier v. McCrillus, 4 Kas., 250, tbe relator lias a plain and adequate remedy at law by a suit against tbe treasurer on bis bond, and therefore is not entitled to tbe remedy by mandamus.

Tbe counsel for tbe relator seeks to evade tbe force of tbis conclusion by an argument that may be concisely stated as follows: Tbe bonds issued by tbe county are illegal, and therefore tbe money arising from their sale did not come into tbe custody of Bridgman as treasurer so as to make bim liable therefor on bis bond. If tbis argument were conceded to be correct, it would inevitably lead to tbe conclusion that Bridgman holds tbe money as a private individual, in tbe same way as any other bailee, and not in bis official capacity. Mandamus is not a fit or appropriate remedy to enforce an ordinary bailee to execute tbe terms of tbe bailment. The bailment in such a case does not arise from any office, trust, or station. No opinion is intended to be expressed as to the validity of the bonds, or the liability of the treasurer on his bond in the premises. Such questions, unless absolutely indispensable to a decision, are more appropriately decided when the parties interested in them are before the court. It is only necessary to decide now that if Bridgman holds the money as treaswrer then the remedy of relator, according to the facts appearing in this case, by a writ on the bond of the treasurer, is plain and adequate. If Bridgman does not hold the money as treasurer then mandamus does not lie. The mandamus is refused.

All the Justices concurring.