4 Kan. 250 | Kan. | 1868
By the Gotort,
At the instance of counsel for relator, this court allowed an alternative writ of mandamus in. this case, without argument, in order, inasmuch as grave and complicated questions were involved, that full argument might be heard on both sides. The respondents appearing move to quash the alternative writ, bécause—
1. The writ is defective in matters of substance.
2. The relator has a plain and adequate remedy in the ordinary course of law.
3. There is no liability on the part of tire respondents, or any of them, to the relator, as the bonds he owns are invalid and void.
The writ must be quashed. While we think the writ is defective in some respects, we shall not stop to ex
The relator is the owner of certain bonds and coupons attached, amounting to the sum of $1,811.25, of the county of Leavenworth, which bonds became due and payable on the 1st day of March, 1867.
The county board of Leavenworth county, in 1866, assessed and levied a tax on the taxable property of Leavenworth county, to pay off these bonds and coupons, and others of the same class. The county treasurer collected said tax, so levied and assessed, sufficient to pay said bonds and coupons, and others of the same character. The relator presented his bonds, with coupons attached, to the county treasurer, and demanded payment thereof, which said treasurer refused to make.
He also presented them to the board of county commissioners and demanded payment, but was refused, and the said board also refused to order them to be paid. The county board, at an earlier period, made an order, directing the treasurer not to pay them, and they still remain unpaid. Under this state of facts, and for the purpose of this case, considering the liability of the county to the relator as undoubted and established, is the relator entitled to the writ ?
The law is that this writ shall not be issued when there is a plain and adequate remedy in the ordinary course of law. Qornrp. L., p. 226.
The facts, show that the money is now in the hands of the treasurer; that it is due to the relator, and he refuses to pay it over. Is there not a plain and adequate remedy in the ordinary course of law ? ' An ac
The county board had no more to do with that matter than anybody else. The order was as binding as though made by a merchant of Leavenworth upon his books.' The bonds are ascertained claims, not in any wise depending on the action of the board for their validity. They have no power to audit or allow them, or to disallow them. This power over them was ended when they passed into other hands for a valid consideration. Their duty was ended when they levied a 'tax to pay them off. They are not to be paid on the warrant of the board, but upon presentation to the
• These are, briefly, the reasons why the writ ought to be quashed and the action ended.