38 Kan. 593 | Kan. | 1888
The opinion of the court was delivered by
Two principal questions are presented for decision by the defendants’ demurrer: First, is the metrópoli
The first point has been determined adversely to the contention of the defendants, in the recent case of The State, ex rel., v. Hunter, ante, p. 578, same case, 17 Pac. Rep. 177, in which the constitutionality of the act was sustained; and it is needless to repeat here the reasons for that ruling.
The second point must be ruled in favor of the defendants. All that is sought by the proceedings is to enforce the payment of the salaries and claims of the officers and servants of the city. Their claims are not unlike those due from the city to any ordinary creditor; and hence there is no occasion to invoke the extraordinary aid of the courts by mandamus. Mandamus is one of the extraordinary writs, and is never issued where there is a plain and adequate remedy in the ordinary course of the law. An eminent author, in treating of this subject, says:
“ In conformity with the general rule, it is held that mandamus will not lie to municipal authorities requiring them to pay salaries which are due from the corporation to its officers, a salary being regarded as an indebtedness of the corporation which may be enforced by action of assumpsit; and mandamus is not designed as a remedy for the collection of debts.” (High Ex. Rem., §341.)
The same doctrine was announced by this court in the case of The State v. McCrillus, 4 Kas. 250, and has been repeatedly declared since that that time. (The State v. Bridgman, 8 Kas. 458; Byington v. Hamilton, Treas., 37 id. 758; same case, 16 Pac. Rep. 34.) The salaries of the officers and persons for whose benefit this proceeding is brought are mere debts against the city, and may be recovered in an ordinary action, like any other debt, and under the authorities cited mandamus cannot be maintained.
It is unnecessary to discuss and determine the other ques
The demurrer will be sustained, and the proceeding dismissed.
