Co. Com'rs Grand Forks v. Cavanagh

• Decision Date: 12 May 1884
• Parties: Co. Com'rs Grand Forks Co. v. Cavanagh.
• Court: South Dakota Supreme Court

19 N.W. 413

3 Dak. 325

Co. Com'rs Grand Forks Co.

v.Cavanagh.

Supreme Court of the Territory of Dakota.

Filed May 12, 1884.

Appeal from the district court of Grand Forks county.Bosard & Clifford, for appellant. E. St. Julien Cox, for respondents.

HUDSON, J.

During the years 1879-80 the appellant was treasurer of the county of Grand Forks. In the year 1879 the respondents issued the bonds of said county to build a court-house, to the amount of $10,000, and by said respondents sold, without intervention of the appellant, except that he received the money as treasurer. In 1881 said treasurer settled with the county commissioners, retaining out of the county funds in his hands the sum of $400, claimed as commissions on the proceeds of the bonds, $10,000, at 4 per cent. The respondents rejected such settlement, and demanded the full sum in his hands, which demand was refused; whereupon, at the April term of said district court, the respondents filed a petition for a writ of mandamus to compel said treasurer to pay over said $400; and thereupon the court ordered an alternative writ of issue, returnable at the same term. Upon the return of said writ the appellant appeared by counsel and moved to quash the writ, which motion was overruled by the court. Thereupon the appellant filed his answer. The court, after hearing the proofs, ordered a peremptory writ of mandamus to issue, from which order this appeal is taken.

The writ of mandamus can issue in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. If there is such remedy in the ordinary course of law, it is very clear this writ cannot be invoked. We think the Political Code (section 95 of chapter 28) has provided such remedy by making it the duty of the county clerk, on receiving instructions for that purpose from the territorial auditor, or from the county commissioners of his county, to cause suit to be instituted against such treasurer and his sureties, or any of them, in the district court of his county, to recover all money in the hands of the county treasurer which he shall fail to pay over. Under this provision it is clear that a plain, speedy, and adequate remedy in the ordinary course of law may be had, hence mandamus cannot be maintained. This is decisive of the case; but the question of the right of the county treasurer to commissions upon this fund was much discussed, and, as the question is of some importance, it seems proper that...