State ex rel. Pepple v. Hancock County

JUSTICE, J.

In this original action in mandamus, the relator prays that a writ of mandamus issue, commanding the respondents, as commissioners and auditor of Hancock County to allow and provide for payment of certain fee bills. Respondents demurred to the amended petition on the ground that it did not state facts sufficient to constitute a cause of action. The Court of Appeals held:—

1. In disposing of the demurrer, it is not necessary to interpret the sense in which the word “fails” in 3019 GC. is used by the legislature.

2. Certain essential facts necessary to state 'a cause of action were lacking in the petition first filed (to which a demurrer was sustained) and among the facts so lacking was an allegation that relator had not received, during 1925 and 1926, the allowance authorized by 3019 GC.

3. Section 3019 GC. provides, so far as is applicable here: “In felonies wherein the State fails — the county commissioners, at the first meeting in January, shall make an allowance to Justices of the peace and constables, in place of fees, but in no year shall the aggregate allowance to such officer exceed the fees legally taxed to him in such causes, nor in any calendar year, shall the aggregate amount allowed such officer and his successor, if any, exceed one hundred dollars.”

4. In the amended petition, the relator does not aver the amount allowed to him during 1925 and 1926 in felonies wherein the state fails.

5. All that he could legally receive in such eases in any calendar year is $100. From all that can be gleaned from the amended petition, he may have received $100 for 1925 and also $100 for 1926. If so, he would not be entitled to an allowance for the non-support cases mentioned in his amended petition.

6. Before a peremptory writ of mandamus will be granted, the party seeking it must first show a clean legal right to the relief sought. State v. Smith, 71 OS. 13.

Demurrer to amended petition sustained.