The First National Bank of Topeka v. Heflebower
| Decision Date | 11 December 1897 |
| Docket Number | 10881 |
| Citation | 51 P. 225,58 Kan. 792 |
| Parties | THE FIRST NATIONAL BANK OF TOPEKA v. DAVID H. HEFLEBOWER, as State Treasurer |
| Court | Kansas Supreme Court |
Decided January, 1897.
Original proceeding in mandamus.
Rossington Smith & Dallas, for plaintiff.
G. C Clemens, for defendant.
The Commissioners of the Public School Fund drew on the defendant, as State Treasurer, orders for ten thousand dollars, payable out of the permanent school fund, in favor of the plaintiff, to pay for certain refunding bonds of Graham County, which the Commissioners had agreed to purchase. These orders were presented to the State Treasurer to be registered, as required by paragraph 6658 of the General Statutes of 1889. Orders were also drawn for the interest which had accrued on said bonds to the date of sale. The Treasurer refused to register the orders. This proceeding is brought to compel such registration and the payment to the plaintiff of the amount of the orders by the Treasurer out of the proper funds. Various matters of defense are stated in the return of the Treasurer to the alternative writ of mandamus. The case was tried in this court, on oral and documentary evidence, at the October session.
It appears without dispute that $ 3,000 of the bonds were sent to the plaintiff by M. W. Harris & Co., of New York, with a draft on W. W. Speer for $ 3,038.33; and that $ 7,000 of the bonds were sent by the Webster National Bank of Boston, with a draft on the same person for $ 7,153.33. The School Fund Commissioners, after an inspection of the bonds, accepted the offer made by Speer and agreed to purchase them at their face value with accrued interest. They were thereupon presented to the Auditor of State for registration and were registered by him, and the words "The property of, and payable to, the permanent school fund of the State of Kansas, and not negotiable or transferable" were stamped on them over the signature of the Auditor. The bonds so stamped were presented to and left with the defendant. The plaintiff is not the owner of the bonds, and did not negotiate the sale of them to the School Fund Commissioners, but they were sent to it by the holders, for delivery, and return of the proceeds. Neither the School Fund Commissioners nor the owners of the bonds are parties to this action.
The question is raised as to the right of the plaintiff to maintain the action, even though the duty of the Treasurer to comply with the demand be clear; but we prefer to dispose of the case on another ground, without expressing any opinion on this question.
The courts never compel a public officer to carry out a contract, or transaction, which in any essential particular violates a statute. Supervisors v. The Township of Mentor, 94 Mich. 386, 54 N.W. 169; The State, ex rel. O'Hara, v. Fagan, 56 N.J.L. 279, 27 A. 1089. "The court being vested with some discretion will not issue a writ of mandamus, except where it seems to be necessary and proper to accomplish the ends of justice." Arends v. City of Kansas City, 57 Kan. 350, 46 P. 702. Referring to such purchases of bonds, it is provided in paragraph 6654 of the General Statutes of 1889, as follows:
"In making such investment they shall give preference to the bonds of the State of Kansas, school-district bonds, and refunding bonds, when the same can be procured most advantageously to the said funds; but they shall not pay for any State, school-district or refunding bonds in any case a greater sum than the par value of the same, nor shall they pay for any such bonds any greater sum than the actual market price thereof at the time of purchasing the same."
These bonds were purchased at par. The testimony offered at the trial shows that they were not worth par in the market at the time of the purchase. The testimony of Mr. Speer, on behalf of the plaintiff, was to the effect that refunding bonds...
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Lang v. The Board of County Commissioners of The County of Coffey
... ... their payment. (National Bank v. Heflebower, 58 ... Kan. 792, 51 P. 225; The State, ... the high points of the argument for appellee, it is first ... assumed that the main question is whether a register ... ...
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State ex rel. West v. Kay
... ... The ... defendant first moved to dismiss the writ for the reasons: ... (1) ... 253, 102 P. 303, 103 P. 61; First Nat. Bank of Topeka v ... Heflebower, 58 Kan. 792, 51 P. 225; ... ...
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