Hussey v. Hamilton

5 Kan. 462 | Kan. | 1870

By the Court,

Kingman, C. J.

The court below granted' a peremptory writ of mandamus, commanding the plaintiff in error to deliver up to the defendant in error the books, papers, records, seal and insignia of office pertaining to the office of probate judge of said county of Saline. Of the several errors alleged, we shall notice but one, as that disposes of the whole case. The case was tried on the affidavit and petition of the relator, to which the respondent answered as to an alternative writ, and this case was tried as though such writ had issued. The petition, which was sworn to and formed the affidavit in the case, did not state facts that would authorize the award of the peremptory writ of mandamus.

If it be conceded that the relator, Hamilton, was duly elected and qualified, and his bond good and sufficient, and duly and properly approved, and his right to the office and its insignia perfect and complete, and his possession and enjoyment thereof, as absolutely right and perfect in law, as in any conceivable ease; and the taking possession by Hussey, of the books, papers, seal, etc., belonging to the office, as wrongful as is alleged in the affidavit, still the writ ought to have been refused.

The affidavit nowhere alleges in terms, or by any fair or reasonable implication, that Hussey, the respondent, took possession of the books and other property of the office, under any pretense of a color of right to such property or to the possession thereof, or to the office itself; or that he was in any way exercising the duties of the office or pretended that he had any right so to do. On the contrary the petition alleges that the property was forcibly and feloniously taken from the relator by the respondent, and detained by him. There is no allegation that he pretended any right to the office or exercised any functions pertaining to it. He had been probate judge, but had surrendered the same and delivered over the property to the relator ten days before he took the property into possession, as above mentioned. It may be he pretended to be probate judge, but it is not so alleged in the affidavit, or admitted in the answer, or shown by the evidence.

A writ of mandamus may only issue to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust, or station, [Civil Code, § 688,] and may not issue in such cases where there is a plain and adequate, remedy at law. [§ 689.] The affidavit in this case does not profess to show that Hussey held, or pretended to hold, any office, trust or station, from which any duty resulted. He is nowhere represented as any other than a private person, with no more special duty than pertains to any and every inhabitant. For this insufficiency of the affidavit the writ ought to have been refused. By the affidavit, it appears that the relator had as plain and adequate a remedy as any other officer of citizen has when his property, or that of which he has the custody, is stolen from him. We are referred to the cases of “ the People, ex rel. v. Brewster,” [15 Ills., 500,] and that of the People, ex rel. Cummings v. Head, [25 Ills., 325.] These cases go a long way in granting relief by way of mandamus, but differ from the case .under consideration upon the very points on which this case is decided. In the first of these eases, the respondent expressly admits that he is in possession of the office, discharging its duties, and claims to do so by legal right. The court decided that he was not the mayor, and that the relator was; and was entitled to the insignia of office. There the pleadings admitted him in the exercise of an official position, from which, if he was wrongfully in such position, resulted the special duty of delivering to his successor the seal, books and papers of the office. The respondent was occupying a station from which a special duty sprang, and which the court enforced by this writ; so in the second case referred to above, the same condition of the parties is found, and the same result is reached; while in this case neither the affidavit or answer represent the respondent as acting or pretending to act in any such capacity as created any special duty, or from which any special duty resulted. For the same reason the case in 7 Cushing, 226, though instructive and logical, and in many respects a satisfactory exposition of the law of mandamus as applied to the facts of that case, has no bearing upon this case. Did "the pleadings or evidence anywhere show that the respondent was acting as probate judge, or that he was pretending to hold the records, hooks and papers, etc., by any color or pretense of right as such officer, then the cases referred to would he applicable, and entitled to careful consideration. But instead of stating that he held any office, or pretended to have any rights as such, he is represented as a common fellow, appropriating the office property to his own use by theft.

It is apparent from reading the judgment of the court below, that the court must have acted on facts publicly known, and which may have been the grounds of contest in that court, and its attention not drawn to the lack of essential averments in the affidavit. We do nots enter upon the consideration of the legality of the bond of the relator as probate judge, because it is not necessary to decide this case; and because it is not a proper subject of inquiry upon mandamus. The title to the office cannot be tried under such proceedings. An action in the nature of quo warranto is the proper and appropriate method by which the right to the office should be tried, and not mandamus.

The judgment of the district court is reversed, with directions to refuse the writ of mandamus.

All the justices concurring.