St. Charles City Republican intelligencer. [volume] (St. Charles City [Charles City], Iowa) 1857-1861, 1857-10-29

dy reach the desired object with as
+ l.tl!e delay Hs possible.
IN This cas-" he admits lac ought 10
act, but refuses TO do SO This being
the case / know of no other remedy
more plain, more speedy or more ad-
ecuate to compel q performance Of
this duty. It may be said here that
the act requested to be done, ION the
part Of the County Judge,) was a ju.
dicial act; true, it is, that part Of that
which was asked was in the nature Of
a judicial act, and part ministerial.
The auditing Of the claim might be
said to be a judicial act, and conse.
quently this writ could only compel
him to act; this is all the relator asks
him to do in the first instance, which
being done and performed, the minis
terial act Of drawing the order on the
Treasurer would follow. In the first
the County Judge could only be COM
PEELED to act, which in this instance
lie refuses to do, either to allow or dis
allow. But it is said he had a dis
cretion, and having it, had a right
to. refuse; true, he has a discretion to
allow or disallow, but in this instance
he refuses to do either. This discre-
ton is confined to the allowing or dis
allowing and he has no discretion
whether ne will act or not act; he
must act by either allowing the de-
mand or refusing it.
1t is said the County Judge had a
right to suppose that nothing was
due on the contract and had clearly a
discretion Ito refuse to act. This
would be a good answer to the alter
native writ, and would be sufficient
reason why he disallowed the account,
but no reason whatever for refus-
ing to sag hat he disallowed it, Or re-
fusing to allow or disallow.
We may here ask what remedy
could the relator have resorted to in
this case that would have been a
more speedy, plain and adequate one.
There seems to me to be but one other,
and that is to sue the county in her
corporate name upon this contract,
for there is no other, unless it may be
said that an appeal lies from the
County Judges decision on his exer-
cising a discretion and refusing to al
low, but this is not such a case, fUr
wen before an appeal could be taken
from the exercise Of that discretion,
the County Judge must pass his
Judgment one way or the other, and
in this case he refuses to do either.
But suppose a suit upon this contract
to be broug ht in the name Of the rela-
tor, a judgment is obtained, how is
that Judgment to be enforced. The
code provides, section 1895, page 270,
that the public buildings of the county
are exempt from execution and the
same section provides that the prop
erty Of a private individual can in no
case be levied upon to pay the debt
of a civil corporation
The next section provides that if
no property is found upon which to
levy, if the Judgment creditor elect to
sue ont an execution he is entitled to
the amount Of his judgment in the or
dinary indebtedness issued by said
corporation, Sc; in this case it would
be county warrants. Now suppose
the County Judge refuses to cancel
said Judgment, auditing and drawing
these warrants, what then ? why o re-
sort right back again to the very rem
edy this relator has now sought in
the first instance. But the word
elect in this section implies q choice Of
two remedies, and what is tha ether,
if the judgment creditor does not
choose to sue ont an execution, | can
see no ether than q msndamus again.
Now all this round about nj Of
obtaining a Just and honest de-
mand may seem perfectly plain to some,
but no one will contend that it is a
speedy and adequate one. 1t may indeed
be said to be no remedy at all; it is
certainly not an adequate one, 70 thus
subject a creditor Of the county to all
this,multiplicity ofproceeding t oobtain
a few dollars justly due for bis hand
labor in erecting public buildings for
the county.
With regard to the second cause Of
demurrer. The information alleges
the relator has done and perform.
ID according to the terms Of the agree
nent on his part thereof and in my
this allegation is sufficient.
The demurrer will therefore be over.
'ulled and judgment that defendant
over.
SAMUEL MURDOCH,
Judge of 10th Judicial District.