100 Kan. 394 | Kan. | 1917
The opinion of the court was delivered by
In June, 1916, the commissioners of Sedgwick county decided that it was- desirable to build a jail at a cost of $120,000. An election was held at which a majority of those voting declared in favor of issuing bonds for the purpose. In September a contract was entered into with the Eberhardt Construction Company for the building of the jail. Work under the contract was begun by purchasing material and equipment, a part of which was placed upon the ground. Two of the commissioners were succeeded by newly elected officers in January, and in that month the board notified the company that it had canceled the contract, adding that this was done upon the opinion of the county attorney that the election referred to and the acts taken in reliance thereon were without authority of law. The company seeks by mandamus to require the board to carry out the contract. An alternative writ has been issued, and the defendants have filed an answer presenting the contention that even if the contract were valid its performance could not be enforced by mandamus, and that it is void because of a defect in the publication of the notice of the election. The case is submitted upon a motion for judgment on the pleadings.
“Where under the terms of a contract entered -into by a municipality and its contractor for the performance of such work it is provided, or necessarily implied, that the municipality shall do and perform certain things essential to the performance of such work under the contract, and as preliminary thereto, if the municipality refuse, it may be compelled by mandamus.” (2 Bailey on Habeas Corpus, § 262, p. 1098.)
Where a valid contract has been entered into for the making of a public improvement in pursuance of a vote of the people, officials charged with a ministerial duty in that connection may be compelled to act in conformity thereto by mandamus at ihe instance of any one having a substantial interest in the matter. The circumstance that the persons whose action is sought to be controlled constitute the governing body of the municipality concerned does not render them immune from being required to perform a positive duty which is laid upon them by virtue of their office, and which involves no exercise of discretion. Where they seek to justify nonaction on their part solely by a reason which is founded upon a doubtful conception of their legal obligations — where the controversy grows out of a dispute over a pure question of law, an authoritative answer to which will necessarily end the matter — the practice in this state is to permit the issue to be determined in mandamus, although in some jurisdictions the interpretation of a statute by executive officers will not be interfered with by courts in that manner. . It does not follow that where the controlling body of a public corporation, in the exercise of its judgment as to governmental policy, sees fit to. refuse to proceed with a contract to which it has committed itself, preferring to answer in damages for any resulting loss to the contractor rather than to carry out a course which it has determined not to be for the best interests of the community, it can be compelled to perform specifically its engagements by a writ of mandamus. It will be assumed, without deciding, that the present case falls within the class to which mandamus is applicable.
The writ is denied.