Treasurer of Jefferson County v. Shannon

The opinion of the court was delivered, by Thompson, J. The proceedings in this case were very irregular, ignoring altogether the Mandamus Act of 1836, and according almost as little with any practice in such cases anterior to the act. The relator filed a suggestion for a mandamus against the treasurer of Jefferson county, to compel him to pay. certain orders therein described, assumed to have been issued by certain military boards under the provisions of the Act of 21st April 1858. To this suggestion the treasurer answered — without any [224] rule that we discover, except as it may be inferred from the language in the final decree — that he had no funds; that previously to the demand the military fund had been paid away on orders of the board of relief, pursuant to the Act of 8th April 1862, and that the orders were neither properly authenticated nor did they specify the objects for which they were drawn, as required by the 8th article of the 3d section of the Act of 1858. There was neither replication nor demurrer to this, although an issue of fact was obviously involved in it, but the court appointed an auditor to report the facts. This he did not do, but returned the testimony; thereupon the court entered on the record, “ Rule made absolute; mandamus decreed for the unpaid balance of orders attached to the report.” The Act of Assembly very plainly points the course to be pursued when a proper suggestion is filed. If it contain the substance of a case for a mandamus, the course is to issue an alternative writ, commanding the defendant to perform the act required, or return his reason for not doing it. Before this writ, the act provides that the court shall allow the persons suing or defending “ such convenient time to make return, plead, reply, rejoin or demur as shall be just and reasonable.” If, after issue and trial, the return be adjudged insufficient, then a peremptory mandamus issues to compel the performance of the duty required. The act contemplates regular issues of fact and law, as in other cases: 8 Casey 218 ; 1 Wright 237. All this was neglected here ; and to the allegations of fact in the treasurer’s return or answer to the suggestion, that there were no funds, there was neither a traverse nor demurrer tendered. If the fact be insisted on, as it is, the court had no power, either by themselves or their auditor, to dispose of it, unless by the consent or agreement of the parties on record; and, until disposed of in some regular way, no decree could be made against the treasurer. The answer that the orders were not drawn as required by the act seems fully sustained, but it was overruled, under what plea does not appear. “No money,” says the act, “ shall be paid from said fund by the county or city treasurer but upon orders of a board of officers, as provided in this act, countersigned by the commandant of the brigade or president of said board, and which order shall specify on its face the object for which said money was paid,” &c. The first of these three orders was drawn payable to Peter Eike, and does state the services on account of which it was drawn, but was not countersigned by the president of the board or the commandant of the brigade. The second was in favour of one Reitz, is signed by the president, hut not by the board of officers, as required; and the third is signed in the same way [225] as tbe second, and is deficient in not stating tbe services for which it was drawn. They are all fatally deficient in execution, and did not present the legal right which it is necessary for the relator to show in order to entitle him to the remedy he sought. Had these orders been sufficient on their face, and the fact been established in an orderly way that there was money in the treasury applicable to them, we think the remedy by mandamus would have been proper; but, both in substance and in form, the proceedings and judgment were all wrong, and the judgment, is reversed.