The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-02-20

kfCnMOnO certain amount WHICH one
Mayo paid over to said Sergeant in "cou-
pons for tine imposed upon said Mayo
for criminal offence.
Now, the first question which meets us
upon the very threshold OF our investiga-
tion is necessarily this docs the law make
il the duty of the Auditor OF Public Ac-
counts to receive from the Sergeant Of the
city OF Richmond all fines collected by him
II it clearly de0S, then this Court may COM
pel him to perform that duty by it's naGndd-
mas. II not, the writ will be withheld.
Now, there are certain Well-dehned
LEGAL PRINCIPLES Is.
which govern all cases Of mdndamus, and
upon which the case, as made by the record,
must be decided. These may be succinctly
stated as follows:
/. The writ of 7aGndaTluS, known in Eng
land rs q high prefogatiye writ. is Justly re-
earded "A this country as one OF the highest
Writs known to our system Of iurtsprR-
Cence; and it only issues when there is O
clear and specific legal right to be enforced,
or duty which ought to be, and can be,
performed, and when there is no other spe-
cifc and adequate legal remedy. The right
which it is sought to protect must there
fore be clearly established; and the writ is
never granted in doubtful cases.
9. An important feature of the writ OF
,randanna.s, and one which distinguishes it
from other remedial writs, is that it is used
merely to compel action and coerce the per-
lormance Of preexisting duty. In no case
does it have the effect OF creating any new
authority or Of comforting power which
did not previously exist, its proper func-
ton being to set in motion and compel ac--
ton with reference to previously existing
and clearly-defned duties. It is, therefore,
in no sense creative remedy, and is only
used to compel persons to act where 1t is
their plain duty to act without its agency.
8. It may be stated generally that where
the law enjoins upon public officer the
performance OF specific act or duty, obe-
Gience to the law may, in the absence OF
other adequate remedy, be enforced by
mdndanus. 1t will not. however, lie to
compel an officer to perform an act which
without the mandate of the Court would be
unlawful for him to perform. And to war
rant the CoufFin granting the writ against
a public officer such state Of facts must
be presented as to show that the relator has
clear right to the performance OF the thing
demanded, and that corresponding duty
rests upon the officer to perform that par
|ticular thing. (See Highs FL Legal Reme-
dies, sections7, 8, 80, and cases there cited.
Upon these well-settled principles this
Court can only issue its
WRIT OF AANDAMUs
to public officer to compel him to perform
duty which the law unquestionab inn
poses on such officer. And the very first
and conclusive inquiry we must make is
this: Is the Auditor OF Public Accounts the
officer whose duty it is to receive fines col
lected by the Sergeant OF the city Of Rich
mond? or, in other words, to aohom under
the statute law OF this State must the
Sergeant OF the city OF Richmond
pay over the fines collected by him
to the Auditor of Public Accounts
or to the City Treasurer? This is the
question first to be solved, and this ques.
tion must be determined without reference
to the interesting question so earnestly and
elaborately argued at the bar, as to whether
a fine imposed for violation OF law can be
discharged in +" coupons" For If it be
made to appear that
THE CITY TREASURER,
and not the Auditor of Public Accounts, is
the officer designated by law to receive fines
collected by the City Sergeant, then it is
plain that this Court cannot issue its writ
Of mandqmas to compel the Auditor OF
Public Accounts to perform q duty which
belongs to another officer, and not to him.
After careful examination OF the statutes
on this subject we are constrained to hold
that the CITY Treasurer, and not the Audi
tor OF Public Accounts, is the proper officer
10 whom all fines collected by the Sergeant
Of the city OF Richmond should be paid.
We deem it only necessary to refer to those
statutes fixing the duties Of county and city
treasurers. and those fixing the duties and
liabilities Of city sergeants generally, ir-
cluding those Of the Sergeant Of the city of
Richmond.
In section 26 OF chapter 4G Of the Code OF
1873 is the following provision: The
county treasurer shall receive from the
sheriff OF his county all fines collected by
him, and account for the same In his annual
settlement with the Auditor Of Public Ac-
,counts.'.
On the 29th OF March, 1875, an act was
passed, and approved on that day, entitled
IAN act prescribing the duties, powers,
liabilities. and compensation of certain
county officers, providing for the collection
OF taxes, and for the repeal OF chapters 81
and 46 Of the Code of 1873."
IN THIS ACT
.repealing chapter 40 Of the Code of 1873
the above provision, requiring the county
treasurers to receive from the sheriff all
fines collected by him was retained and re-
enacted. ISee Session-Acts OF 1879 %,
chapter 269, section 10, page 346.l
Z In chapter 54, section 10, Code Of 1878.
page 524, is found the following provisions
respecting city and town treasurers: cas- to
the collection and payment of the State reYe-
nue. In such city or town, their duties, lia-
bilities, and compensation shall be the same:
as are or may hereafter be defined by law
for county treasurers, except so far as may:
be inconsistent with this aet.o Now, these
sections place the city treasurers on the same
footing with respect to their duties and liza
bilities as the county treasnrers. One OF
these duties is to receive and collect all
fines.
Let us now inquire what duties are inn
posed on the sergeants OF The cities in re-
spect to frss collected by them. The gem
eral provision above quoted requires the
sheriffs OF the counties to pay over to the
county treasurer all lines collected by him..
And the 7th section OF chapter 40 Of the
Code Of 1873, fixing the duties, liabilities.
&c., OF sergeants, provides that Z. they shall
account for md pay over to the city treas-
lrey ali taxes 0l. other moneys received by
them proper 10 be paid TO saia treasurer In
ssa game manner Ds is or Iiay herea{ta Ter be