Bailey v. Lawrence Cnty.

• Decision Date: 02 March 1892
• Citation: 2 S.D. 533,51 N.W. 331
• Parties: Bailey v. Lawrence County et al.
• Court: South Dakota Supreme Court

2 S.D. 533

51 N.W. 331

Bailey

v.Lawrence County et al.

Supreme Court of South Dakota.

March 2, 1892.

Syllabus by the Court.

1. To entitle a party to a writ of mandamus, he must have a clear legal right to have a service performed by the party to whom he seeks to have the writ directed. Mandamus will only issue to compel action when the right of the relator is clear.

2. A county treasurer is not justified in paying interest coupons out of any other than specific funds raised for that purpose, and in his hands, until the board of commissioners of the county have issued an order upon him to do so.

Appeal from circuit court, Lawrence county.

Proceeding in mandamus by Henry E. Bailey, administrator of Ebenezer L. Roberts, deceased, against the county of Lawrence, Donald A. McPherson, Frank M. Allen, and Enos Lane, as commissioners of said county, and Kirk G. Phillips, its treasurer, to compel them to pay certain interest coupons taken from county bonds. Judgment for plaintiff. Defendant county appeals. Reversed.W. G. Rice, for appellant. Van Cise & Wilson, for respondent.

BENNETT, J.

This was an action by mandamus to compel the board of commissioners and the county treasurer of Lawrence county to pay certain interest coupons which were taken from outstanding bonds of that county, issued under the provisions of the funding act of 1879. The answer to the alternative writ denies the validity of the bonds from which the coupons were detached, and the liability of the county to pay the same. It also denies that at the time of the issuance of the writ, and demand of payment, there were any funds in the treasury of the county subject to the payment of said coupons. It also alleges that the relator has other plain, speedy, and adequate remedies in the ordinary course of law. The facts, as they appear in the petition of the relator and the alternative writ, so far as their statement is necessary to understand the questions presented, are briefly these: That the relator is the owner of certain bonds, and coupons attached, of the county of Lawrence, which coupons became due and payable at the office of the county treasurer of Lawrence county on the 1st day of March, 1888. The amount of such coupons belonging to the relator was in the aggregate $11,460, and they were duly presented to the county treasurer of Lawrence county, at his office in Deadwood, and the payment thereof demanded, which payment was refused by him. That the board of county commissioners of Lawrence county failed to levy and collect a tax as required by the funding act, under which these bonds and coupons were issued, for the years 1887 and 1888. Consequently, there were no specific funds in the hands of the county treasurer with which to pay them. That, at the time of presentation, there was in the treasury the sum of $30,000, belonging to a so-called “redemption fund.” This is not a fund created by any existing law, but by a resolution of the board of county commissioners of the county, for the alleged purpose of redeeming the outstanding warrants of the county issued prior to July 1, 1887. The money of which it consisted was not raised by any specific tax or levy, but came from the general fund of the county,-fines, licenses, and various other sources. The law under which these bonds and coupons were issued, provided that “the interest on the bonds issued for funding the outstanding indebtedness of the county shall be held to be a preferred claim against the county, and the same shall be paid before any other claim against the county from the funds in the treasury.”

The contention of the relator is that, although the county commissioners failed to levy and collect a tax for the purpose of raising a fund to pay these coupons, the treasurer was under obligations to pay them, on presentation, out of any other funds in his hands belonging to the county. With the view that we have taken of the question arising in the case, it is not necessary to determine whether this contention is correct or not. The facts show two...