55 Kan. 320 | Kan. | 1895
The opinion of the court was delivered by
It is stated in the alternative writ that the plaintiff was duly appointed warden by the governor, by and with the advice and consent of the senate, for the term of four years from and after May 1, 1893 ; that the plaintiff duly qualified and took possession of the office on that daythat his successor
Counsel for plaintiff say in their brief :
“This action is brought for the sole purpose of compelling the defendant to properly conduct the business concerns of the penitentiary by the proper officer and in the interests of that institution, and we respectfully submit that this is a proper case for the speedy allowance of a peremptory writ in order that the affairs of the penitentiary may not suffer, but be continued in a proper manner.”
Assuming, without deciding, that the defendant board ought to examine all adjusted bills and accounts of the plaintiff incurred in carrying on the business of the penitentiary, and indorse the plaintiff’s report or statement of the same as contemplated by § 14 of chapter 152, Laws of 1891, yet we do not think that the plaintiff is the proper party to compel the board by mandamus to perform its duties to the public. The board is the governing body of the penitentiary. The warden is the chief executive and administrative officer under the direction of the board. That the warden should take the board to task for any supposed disregard of its duties is at least unseemly. Any corrective or visitorial proceeding ought to be initiated by the state through its appointed agencies. Although the plaintiff may be warden de jure, yet in this proceeding he stands in no better position than a private citizen, and cannot champion the rights of the public. Many cases decided by this court might be cited to' justify our conclusion, but we deem the following suf
Peremptory writ denied, and judgment for defendant.