In re Cunningham

14 Kan. 416 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

This is an application for a writ of mandamus to compel Thomas A. Osborn, governor of the state of Kansas, to issue a patent to the relator for some land claimed by her under a purchase made under an act of the legislature entitled “An act providing for the sale of public lands to aid in the construction of certain railroads,” approved February 23d, 1866. (Laws of 1866, p. 142.) The governor refuses to issue the patent on the ground that the relator has not presented to him “a receipt of the state treasurer for full payment” for the land, as provided by § 3 of said act. It not only appears from the proofs presented to us that the relator has not presented such receipt to the governor, but it also appears that no such receipt has ever been issued; nor has full payment even ever been made to the treasurer for the land. It is alleged however by the relator, that full payment has been made to the state agent, and that it is the agent who has failed to make the proper payment to the treasurer. Under these facts can a writ of mandamus be issued against the governor? We think not. There is no law that requires him to issue a patent in a case like the one at bar, except upon presentation to him of said receipt. That receipt has not been presented. Then what official duty has he neglected or refused to perform? None has been pointed out to us, and we know of none. We suppose it is clear beyond all doubt that the writ of mandamus can be issued against a public officer only in a case where such officer has neglected or refused to perform some official duty. No such neglect or refusal is charged against the governor in this case. The writ of mandamus prayed for w-ill therefore be refused.

.All the Justices concurring.