34 Iowa 175 | Iowa | 1872
The position contended for in the argument is, that the defendant is not in law authorized or required to affix the county seal to warrants issued by his predecessor in office, unless specially directed to do so by the board of supervisors.
The county, whose officer the defendant is, is a corporation for political purposes (Rev., § 221), and as such is clothed with the attribute of perpetual succession, as long as the corporation shall have an existence. It is the same person in law to-day as when these warrants were issued ; in like manner as the “ Great Father of Waters” is still the same river, though the parts which compose it are ever, and will continue to be, while its majestic stream shall pursue its course to the sea, changing every instant of time. See 1 Bl. Com., marg. p. 468; Angell & Ames on Corp., § 8. So a corporation, which is composed of its numerous members, and is, and can be, represented only by its officers and agents, who are continually changing, is, during its entire existence, but one person in law. Id. And where the action, as in this case, is brought against an officer of the corporation, upon whom the law devolves a specific duty, which, it is alleged, he has omitted and refuses to perform, the same doctrine of immortality, so to speak, is to be applied. The action is brought against the officer as such, and not against the person; for it is only in his official capacity that he can perform the duty; and the act sought to be enforced is to be done by the officer who at the time sustains that relation. If, therefore, a duty which is specially enjoined upon an officer is neglected or omitted by him, his successors may be required to perform it, if it can still be done. United States ex rel. v. Commissioners of Dubuque County, Morris (Iowa), marg. p. 31.
II. The third ground of demurrer is, that the plaintiff has a plain, speedy, and adequate remedy in the ordinary course of the law. The ai’gument is, that the plaintiff has his action upon the bond of the officer, who neglected to affix the seal of the county to the warrants. We have just seen, however, that this duty, if it be such, does not attach to the person occupying the office, but devolves upon his successor, who is under the same obligation to
It is insisted, by appellant’s counsel, that the right of action did not accrue against the defendant until demand of performance and refusal, which is alleged to have occurred on the 25th day of October, 1870, and that the statute then only commenced to run.
That the action of mandamus cannot be maintained until there has been a refusal to perform the official duty sought to be enforced is true, but to hold that a plaintiff, who has a right to demand performance at any time, may delay such demand indefinitely, would enable him to defeat the object and purpose of the statute. It is certainly not the policy of the law to permit a party, against whom the statute runs, to defeat its operation, by neglecting to do an act which devolves upon him, in order to perfect his remedy against another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character. He could neglect to claim that to which he is entitled, for even fifty years unaffected by the statute of limitations, thereby rendering it a dead letter. In such a construction of the statute we cannot concur.
In Baker v. Johnson County, 33 Iowa, 151, it was claimed, by counsel for plaintiff, that since the law gave him the right to sue the county only after he had presented his claim to the board of supervisors, and they had refused to allow it, the statute of limitations did not commence to run until such demand and refusal; but it was held, that the presentation of his claim to the board was a preliminary act, devolving upon him in the institution of the proceedings for the collection of his claim
So, in this case, the plaintiff’s right to demand of the clerk of the board of supervisors the performance of the duty omitted by him existed and was complete at the time the warrants were issued. It was the legal duty of the clerk then to affix to the warrants the seal of the county, and the plaintiff had the right then to demand the performance. The omission of this official duty is the ground of plaintiff’s action. The neglect of the officer to affix the seal of the county to the warrants constituted the injury to the plaintiff, for which the law afforded him a remedy by action. Tie could have commenced proceedings at once to compel performance. True, as a preliminary step in his proceeding, a demand was necessary before he could be entitled to the extraordinary writ of mandamus; but no demand was necessary to create the duty required of the officer. It was as much his duty to affix the county seal to the warrants, at the time they were issued, as it was after demand; and the issuance of the warrants without .the proper seal affixed was a breach of official duty, which a subsequent demand did not augment.
The demand by plaintiff was not necessary to create the duty, but only as a jjreliminary step to the enforcement of the remedy for a breach of official duty, which breach was complete without a demand. The demand was to be made by the plaintiff. This act devolved upon him as much as the act of procuring an original notice to be served upon the defendant, and each was necessary as preliminary to the right to the writ of mandamus. To allow him to suspend the operation of the statute of limitations by his own neglect to make demand, would be to permit him to take advantage of his own wrong.
We are of opinion that the clause of the statute above quoted is applicable to this case. The act complained of
Affirmed.
