Cates v. KnappCates v. Knapp
- Reporters:
- , ,
- Before:
- Burch
The opinion of the court was delivered by
Burch, J.:Thе action is one of mandamus, to compel the-state auditor to issue a warrant on the treasury for the payment of money.
■ The board of state fair manаgers let a contract to the plaintiff for the installation of an electriсal system in one of the state fair buildings. The work was performed, the plaintiff’s claim wаs approved by the board of state fair managers, and a proper vоucher-was duly given him. The auditor refused to issue a warrant, because of illegality оf the claim, not discovered by the board.
The petition was sufficient in form and substanсe to warrant issuance of the writ. The answer was that the plaintiff was a member of an unlawful combination in restraint of trade, and that the contract was entered into on the plaintiff’s, side in furtherance of the objects of the cognbination. The case was referred to Mr. Van M. Martin, a young attorney of Hutchinson, in whose ability and integrity the court had the highest confidence, to report findings of fact and cоnclusions of law. The preparation and filing of his report constituted his last legal work. He entered the United States naval reserve flying corps, and died in the service at Seattle, Wash., on October 21, 1918.
The commissioner found that a combinatiоn of the character alleged had existed, and that the plaintiff had been a member of it, but that the contract was not connected with or related to thе combination or its affairs, and was legal and valid. The conclusion was that judgment should be rendered for the plaintiff.
*186The defendant takes exception to the findings оf fact. The court has reviewed the evidence, and the findings are approved.
The defendant takes exception to the conclusion of law. The stаtute reads as follows:
“That when an action at law or suit in equity shall be commenced in any court of this state, it shall be lawful in the defense thereof to plead in bаr or in abatement that the plaintiff or any other person interested in the prosecution of the case is a member or agent of an unlawful combination аs described in section one or two of this act, or that the cause of aсtion grows out of such “combination, or out of some business or transaction thereof.” (Gen. Stat. 1915, § 6457.)
In the ease of Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883, it was held that this statute was not intended to be a bill of attainder, depriving рersons of civil rights and placing them outside the protection of the law merеly because they were members of a trust or unlawful combination, but that the purpоse was to prevent promotion of the objects of an unlawful combinatiоn, and the enforcement of contracts and arrangements growing out of such а combination. This interpretation of the statute invalidates the portion of thе defense resting on the naked fact that the plaintiff was a member of an unlawful сombination. The findings of fact negative the portion of the defense asserting thаt the cause of action grew out of such a combination, or some business or transaction of such a combination.
For the purpose of obtaining an interpretation of his powers, the auditor asserts that mandamus is not a proper remedy in such a case as this. Mandamus is the proper remedy to obtain a warrant, whenever it is the legal duty of the auditor to issue it. Briefly, it may be said that the auditor is nоt a mere automaton who is required to issue a warrant as a matter of course whenever a claim is presented. Neither has he any discretion to refuse a warrant for the payment of a legal and valid claim. He is, however, an auditor, and may properly refuse a warrant to pay any claim which does not constitute a legal liability of the state, because of either matter of law or matter of fact. He will be protected in the exercise of this power by being relieved of costs and damages, so long as he acts reasonably аnd in good faith, even although he should be wrong in his refusal. Should he act captiously or arbitrarily or unfairly, he *187becomes a wrongdoer, and subject to the liabilities of a wrongdoer. (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799.)
Unless the warrant be issued within ten days, the writ of mandamus will be allowed.