The Leavenworth weekly times., 1878-07-18
DISTRICT COURT ov LEsvENwoFTH COUNTY
r. L. R.I.l :.
Com RS OF Leayerworth "''uSi-ius-


County.
On January 20;h, 1877, the plaintiff COM
menced an action in this Court against the
Board OF County Commissioners OF Leaven-
worth county, 10 recover judgement upon
two bonds issued by the defendant, dated
July lst, 50, ana delivered 10 the Lesven-
worth and Missouri Pacific Railroad Com
Pany. for 500 each, with interest at seven
per cent. per annun the principal payab e
July l. 80 On the =0th OF March, lsU, judg-
ment was rendered against the defeL dant
for S2,1Ui-b and costs.
ON June End, lS1S, the plaintiff by his at
| torDey filed in the above named cause, in this
Court, an application for peremptory man
damu>, rs follows:
lTItle.l The abOye-named plaintiff al
!eSes that On the 18th day of March, s77, by
consideration Of the above entitled court, he
recovered a judgment against this defendant
for the sum Of Ss,sJl.b and costs and that
the time for levying the taxes FOR the pay
inent Of such Judgment. 10 wit: The first
Monday in August, IS71, has long since pass
ed, and that the Board of County Commiss-
toners OF Leavenworth County have refused
and neglected to make a levy for the pay
| ment of said judgment and still neglect and
| refuse toproSide in any way for the pay ment
thereof Wherefore, plaintiff prays that u
suit OF peremptory mandamuS may be issued
commanding the Boa of County Commits
sioners.of Leavenwofth County defendant, to
levy anu collect al the next annual tax levy,
to-wit: The first Monday in Au-
To pay and satisfy said Judgment and
costs in full. and To pay the amount so levied
of said judgment and COSTS"
This application was properly signed and
verified by council for plaintiff.
Upon presentation OF this application, the
defendant, by the County Attorney, asked
for time Ia show cause against the allowance
OF the writ, which was granted and on the
2ith of June, he, a. cause against issuing the
writ, showed thai blackwell l.. Richards is
chairman of the board of County Commis-
sioners; that Henry 4. Squires and James
Pickens, the other two members, were not
members of the Board in August, S.1, but
We're elected in November, ls17, and entered
upon the duties of their office in January.
ISIS: that neither OF them has ever refused 10
levy taxes To pay plaintiffs Judgment, nor
has any demand been made OF them, or eth
er OF them, nor has any demand ever been
made upon the present Board of County
Commissioners 10 make such levy.
S.uiiHgs Il FsR!oa, jOr lDiaiII!ig. J. ". TIsior,
CO'nify InorIey. Jor EeteGd4nt.
BY THE COURT. CEozIER, J.
1t will be observed that the above applica-
lion was filed in the cas- in which the judg-
! ment was rendered, aud il intended To be a
proceeding therein to inforce that Judgment.
The nFst question, therefore, To be considered
IL, whether under the law OF this state "A pro.
eeedlng Tor nandamuS must br an original
action, or may be a special proceeding in an
other suit This question can now hardly he
said to be an open one, lnasmuch as the su-
two cases, decided that it is
u eirH action and must b5
prosecuted in the names of the real parties
III and defendant. The Slate 1T. rel HIAxrs
-MdrstOn, hdS, 52L In, StGts, ret, ,lc. rs
jefferson County IL hds. 60 The proceeding
being a civil action 1t Is necessary tnat II he
commenced and pI oceeded with az any other
civil action, except where the general rule Is
raised by the statute itself. The right OF ac-
ton, or 10 the relief pray ed for, must be made
TO appear in the application, by positive
statement. irrespective of the fact that jud.-
ment had been rendered which II was sought
10 have enforced. Applying this coHsid,Ta-
ton to the application here II would appear
u he insufficient.
AT the time the judgment was rendered, as
stated III the application, the law of the state
limited the county commissioners u Il levy
OF two mills for the pay ment OF Judgment
ms hs"s iuSrmsnt % iS' p rsSdr.a 5 "n,nser unnn
an obligation incurred before after the
passage of this law, Is not disclosed by the
application. II the obligation was incurred
since its passage, ana two mills had been lev
led for the payment of judgments each year,
the plaintiff would moi be emitted 10 writ
against anybody; bat If the obligation
incurred before the passage of the law, then
the law in force at that time might b. in
voked in behalf of the plaintiff. The appilrd.
ton not enabling the court to see what
plaintiffs rights in this respect, j. insuih
cient. However, this objection being merely
technical, "A new application might b. made,
showing the tact that the Judgment was rem
dered.upon an obligation incurred in 1861, I'M
de- "A law which required "A levy for it~ pay
ment, and without limitation as to amount.
But ii "a new application wis made, AN
independent procr eding, in which the above
objection should he ObVIated, another qut>-
tion would still remain, and that
appear by the County Attorney m resisting
the application now before the court, that
majority of the County Commissioners were
elected since the last day for levying such
taxes, and have never neglected or refused
any duty imposed upon them by law in that
behaif. II IL be the officer who Is 10 be pro-
ceeded against by way Of mandamuS, the de.
cision of the supreme Court of thIs State in
The STATE eI re-, Is. Carney t al hGS. p s.,
the writ cannot go until the officer has Iailed
TO perform his Cuty. and hence cannot go
until the expiration OF the time appointed
for its performance. The very foundation
ot the writ always is, when sought against "A
public officer, that, he hasneglected tOpcriorm
"A duty imposed upon him by law, 10 the pre-
judice Of the party eehing the writ There
ore, in this case, If msjoriiy of the County
Comm iSSioEerS whom u IL sought To com pei
TO make levy at this time, We're not in
office in August, lS77, il cannot be said that
they have neglected duty not required
of them by Law To be performed until August,
ls1S.
That the writ must be directed To the officer
and not To the office has been settled by the
supreme Court OF the United States and by
the Supreme Court of TINS STATE.
The Secretary vs.. McSarrahan, . Wallace |
3l3. L. =. vs.. Boutwell,, Il, Wallace GDI. |
state eN rel. vs.. Jefferson Co. IL Kan. G6.
These cases show conclusiyely that when u !
suit of mandamus is asked To compel the !
performance of an official duty, the proceed !
ing is personnel action against the indi ividuaI |
occupying the Office at the time the applica- |
ton Is made; and If this be the right view /
of the law, IL would follow that the aprlicJ- |
ton, if renewed in proper form, should not |
be sustained until after the time at which /
the duty sought to be enforced should have |
been performed by the persons against whom |
the writ is invoked.
After this decision was announced the ap- |
plicatiOn Tor the writ was Withdrawn, and \
hence no judgment was rendered1f hereon.
LEAvENwORIH, July 10, IS1S.
Il. y. Richards, Esq, Chairman Bodrf of CO"H-
ty Commissioners, LeduenrOTfh.:
In 1.f
resolution of your body, passed July II, lsss, |
inclose copy Of the opinion deiivere,. by i
me in the case of r. l. Ridgeiy vs.. the Boari /
of County Commissioners, upon an apple =
ton for "A mandamus, made i'll the DGstTlci /
Court at the present term.
Very respectfully, &c,
I.aIg