54 Neb. 154 | Neb. | 1898
This was an application to the district court of Lancaster county for á writ of mandamus to compel the respondent to surrender to- the relator possession of the institution known as the Home for the Friendless, and the books, papers, and other property attached to and connected with said home, belonging to the state of Nebraska. The district court refused the peremptory writ, and the relator brings the case here by petition in error.
From the alternative writ, the return thereto, and the evidence it appears that in 1876 there was incorporated a “Society of the Home for the Friendless,” having for its object the protection and assistance of destitute women and children. For several years it conducted its operations without state aid and without permanent quarters. In 1881 an act was passed (Session Laws, ch. 52, p. 247) establishing a Home for the Friendless, providing for its location, and appropriating $5,000 for the erection of such home. The act (sec. 4) also contained the following provision: “The government of said home shall be by and under the supervision of the Society of the Home for the Friendless; Provided, That nothing herein contained shall be so construed as to prevent the board of public lands and buildings from establishing rules and regulations for the government of such home in any manner.” According to provisions made- in the act the home was located at Lincoln, and land was bought and a building erected, the funds being deHved from the appropriation referred to and from a donation made by citizens of Lincoln to secure the location. The title to the land was conveyed by the vendor to “the state of Nebraska for the use and benefit of the Home for the Friendless in the state of Nebraska.” A provision of the articles of incorporation of the society was that it should be known by and transact business in the name of the “Home for the Friendless.” Thenceforth appropriations have been made by successive legislatures for the maintenance of
The foregoing statement, together with the requirement of the alternative writ, are sufficient for a disposition of the case. It will be seem that while the case partakes of the nature of an effort by a newly-appointed officer to require a predecessor to surrender the tangible effects of the office, and that in a case where the right to the office is in dispute, and must be determined in order to grant the writ, the real object of the proceeding does not even end at that point, but seeks the determination of the title to land and personal property used in connection therewith. The rival appointees do not assert title in the same right. One represents the society, and so far as the society has property of its own, is undoubtedly entitled to the possession thereof : the other represents the state, and has, irrespective of the respondent’s authority, and conceding it to be perfect as representing her source of power, the right to take possession of the state’s property which may be subject to the state’s disposal in that manner. The respondent is asserting the society’s claim to the property, the relator is asserting the state’s. The society asserts that the institution is its property; that
The office of the writ of mandamus is to compel the performance of an act which the law specially enjoins as a duty arising from an office, trust, or station.. (Code of-Civil Procedure, sec. (545.) The duty which every man owes of rendering lo another that which is his due is not a duty so specially enjoined by law, although the person owing that duty may happen to occupy an office, trust, or station. The restatement of such a truism is only excusable because a frequent recurrence to the principle involved is rendered necessary by the incessant attempts to make this extraordinary writ perform the office of the most ordinary processes of the courts — attempts which the courts, unfortunately, have seemed at times to encourage. In all the instances.of the abuse of the remedy Ave do not think, however, that any case can be found
Affirmed.