14 Neb. 201 | Neb. | 1883
The respondents, Eberhai’dt, Wulbrandt, and Love, were county commissioners of York county at the time this action was instituted. Gandy was county treasurer, and Eatherly clerk, and the relator deputy clerk of the same county. The relator made application for a writ of mandamus against the respondents, alleging their failure to perform certain duties required by law, and asking that they be required to perform the same. An alternative writ was granted, wherein the cause of action against the clerk is stated in substance to be his neglect to charge the treasurer with $1994.32, interest, added to the taxes after they became due. The treasurer is alleged to have been continuously in that office since 1873, and it is alleged that his books have not been and are not kept to show “the amounts received and paid out on account of each separate and distinct fund or appropriation, in separate or distinct columns or accounts, and for each year, and for the present term of his said office separate and distinct from other years and other terms of the office of county treasurer,” etc. There are many other allegations of a like vague and indefinite character, but nowhere a charge of fraud, or that the books do not show the amount of money received and paid out. As to the county commissioners, while there are many indefinite allegations as to their neglect of duty, there is no such specific statement of facts showing neglect as would justify the intervention of this court to compel action.
The respondents have answered the writ, but as the answers contain no admissions tending to aid the writ, it is unnecessary to notice them. The respondents now move to quash the writ because it fails to state facts entitling the relator to the relief sought.
The county clerk is required to keep an accurate account with the county treasurer of all matters in relation to taxes
In Moses on Mandamus, 204, it is said: “ The petition for a mandamus should present to the court a prima facie case of duty on the part of the defendant to perform the act demanded, and an obligation to perform it; otherwise the alternative writ will not be granted. It should also appear from the petition that a demand has been made on the defendant to do the thing he is sought to be compelled to do, and that he has refused and neglected to do it. Stephens Nisi Prius, 2318-19. 9 Mich. 328.”
In Redfield on Railways (5th Ed.), 659, note 6, it is said: “ It is first indispensable to demand of the party against whom the application is to be made to perform the duty. See also State v. The Governor, 1 Dutch., 331. State v. Parker, 7 Rich., 234. State v. Davis, 17 Minn., 429.
Mandamaus will only be granted where the party applying for the writ has no other specific or adequate remedy. County commissioners have a general supervision of the books and accounts of the clerk and treasurer, and the pre
This action is prosecuted for the benefit of the'relator as a tax-payer — in other words is a private action. It would seem but justice, therefore, that he should have stated to the respondents his construction of the law and asked them to comply therewith, and having failed to do so he cannot maintain the action. The action against the commissioners is in effect to require them to settle with the treasurer according to the corrected books of the clerk hereafter to be made. It will be time enough to grant a mandamus when such books have been changed and are shown to be correct and the commissioners refuse to act upon them.
As the alternative writ fails to state a cause of action it must be quashed and the action dismissed.
Judgment accordingly.