94 P. 257 | Kan. | 1908
The opinion of the court was delivered by
The plaintiffs move that the answer to the alternative writ be stricken from the files, and that a peremptory writ as prayed for in the petition be allowed.
One objection to the answer is that it does not make a physical return of the alternative writ served. We think, however, the answer meets the requirements of section 5190 of the General Statutes of 1901, which prescribes thé procedure and does not require the actual return of the writ.
Another objection is to the appearance of certain attorneys for the county commissioners. If, however,
The motion is denied.
If the plaintiffs are entitled to any relief in this case it must be under sections 5184 and 6839 of the General Statutes of 1901, construed together. Section 5184 provides, in substance, that this court may issue a writ of mandamus “to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station.” Section 6339, so far as it applies to the matter now under consideration, reads:
“Whenever twenty householders of any organized township in which the land is situated shall petition the superintendent of public instruction of such county to expose to sale any portion or portions of said land, describing the same, he shall, by and with the consent of the county commissioners of his county, appoint in writing three disinterested householders, . . . who . . . shall appraise each legal subdivision.”
In Bushey v. Hardin, 74 Kan. 285, 86 Pac. 146, it was said:
“Under the provisions of section 6339 of the General Statutes of 1901, relating to the sale of school-land, it is the duty of the county commissioners of a county to give their consent to the appointment of appraisers made by the county superintendent of public instruction of that county in proper proceedings for the sale of school-land, when such appraisers are duly qualified and satisfactory.” (Syllabus.)
In that case, upon the answer of the board of county commissioners and the showing made, this court compelled the board to give its consent to the appointment in question.
It is a well-recognized principle of equity that courts will not employ the extraordinary remedy of mandamus to relieve a party who has an adequate remedy at law;
Now, can it be said under the facts of this case that the consent of the county commissioners was sought in proper proceedings for the sale of school-land, or that, in the situation, the law specially enjoined upon the commissioners the duty resulting from their office to consent to the appointment of such appraisers? We answer both branches of this question in the negative. Upon the face of the records of the county the land in question was not school-land, and the state had parted with all title thereto. The board of county commissioners was under no obligation, probably had no right, to assume that the conveyance from the state was illegal or to proceed in direct opposition to the facts as they appeared upon the records. To hold the contrary would be to say that county commissioners might be required on petition and action of the county superintendent in their counties to take these steps toward the resale of any land in the state which at some time had been school-land. Indeed, it is not within the province of this court in this cáse to decide whether the land in question was legally patented to Jones. We presume, however, that if the title to the land has been illegally conveyed from the state the attorney-general in a proper action in a court of competent jurisdiction might cause it to be restored and the illegal conveyance set aside. However this may be, the situation is such that it does not appear to be in furtherance of justice that the peremptory writ of mandamus prayed for should be granted in this case, and the same is refused.
Judgment is rendered against the plaintiffs for the costs.
