Smalley v. Yates

36 Kan. 519 | Kan. | 1887

The opinion of the court was delivered by

Horton, C. J.:

It is contended that the plaintiff is not entitled to the relief demanded in the alternative writ, for the reason that he is attempting to enforce the provisions of a contract between the city of Hiawatha and himself, and that if any contract exists as he alleges, he has a plain and adequate remedy at law, either by an action for damages or a proceeding in equity for a specific performance of the contract. Under the allegations of the writ, there has been an agreement entered into between the plaintiff and the mayor and the conncil of the city of Hiawatha. Under this agreement the plaintiff is the purchaser of the bonds in dispute. If all of his allegations are true, he is entitled to receive them. It is the official duty of the mayor and the council to carry out the contract and issue the bonds. When these officials refuse to cany out the contract entered into by them, for the sale of the bonds, they are guilty of a breach of official duty.

It is well settled that the writ of mandamus lies in all cases where the plaintiff has a clear legal right to the performance of some official or corporate act, by a public officer or corporation, and no other adequate, specific remedy exists. (Civil Code, § 688; Railroad Co. v. Comm’rs of Clinton Co., 1 Ohio St. 77; The State, ex rel., v. Comm’rs of Jefferson Co., 11 Kas. 67; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 id. 127; The State v. Mo. Pac. Rly. Co., 33 id. 176; High Ex. Rem., §§17, 333; People v. Mayor, 10 Wend. 245; Van Rensselaer v. Sheriff, 1 Cow. 501; Railroad Co. v. Wisdom, 5 Heisk. 125.) Moses on Mandamus, p. 14, lays down this as the rule:

“ It will therefore be observed, that it is one of the remedie,? resorted to when a person desires to be placed in possession of a right illegally and unjustly withheld from him. It does not award damages as a compensation for an injury, but it seeks to give the thing itself, the withholding of which constitutes the injury complained of.

Within Railroad Co. v. Comm’rs of Jefferson Co., supra, and the authorities cited, the ordinary remedies of the law are insufficient for the proper enforcement of the rights claimed by the plaintiff. There is no legal remedy, other than by mandamus, by which he can obtain the identical bonds contracted for. He desires the execution and the possession of these bonds; and if the contract has been completed, as he alleges, the execution and delivery of these bonds by the defendants is an official duty imposed upon them by their contract.

The writ recites that the mayor and council, while in session, sold the bonds to the plaintiff; therefore the objection, that the writ fails to show the concurrence of the mayor in the contract, is not well taken. There is nothing in the writ tending to show that the mayor and city council were required by any ordinance to offer the bonds for sale by sealed proposals, or that the officials transcended their power in entering into the contract. (Comp. Laws of 1885, ch. 19, art.l, § 4.)

The authority given to issue bonds bearing interest at a rate not to exceed six per cent, per annum, empowers the defendants to issue bonds bearing interest at the rate of five and one-half per cent. Ordinarily, the authorized officials of a municipal corporation may bind it by resolution, or by vote clothe its officers with power to act for it. Our attention has not been called to any section of the “ act to incorporate cities of the second class” prohibiting the sale of bouds, or other personal property of a city, by resolution. In our examination of the statute, we have found no such limitation or restriction; therefore the contract entered into between the parties to this action, upon the resolution of the city council, as set forth in the writ, is valid. The motion to quash will be overruled.

All the Justices concurring.