Swigert v. County of Hamilton

Mr. Justice Wilkin delivered the opinion of the Court r The act of June 10,1885, under which the petition is filed, is entitled “An act making provision for the refunding of surplus funds that are now or hereafter may be in the State treasury to the credit of bond funds of counties, cities, towns, townships, school districts, or other municipal corporations, having bonds registered in the office of the Auditor of Public-Accounts, when such bonds have .been paid or cancelled, or-when the bonds purporting to have been issued by any county, etc., and registered in the office of the Auditor aforesaid, shall be held, or the law under which said bonds purport to have-been issued shall be held, void by the Supreme Court of this. State or the Supreme Court of the United States.” The second section, on which appellee’s right of recovery is; based, is as follows: “Whenever the Supreme Court of this; State, or the Supreme Court of the United States, shall hold any bonds void, purporting to be issued by any county, township, city, town, school district or other municipal corporation, registered in pursuance of law in the .office of the Auditor of Public Accounts, or whenever the act under which such bonds purport to have been issued shall be held to be void by the Supreme Court of this State or Supreme Court of the United States, and there remains in the State treasury a balance of funds to the credit of the bond fund of such county, township, city, town, school district or other municipal corporation purporting to have issued said bonds, and there are no other valid bonds issued by said county, township, city, town, school district or other municipal corporation registered in the office of the Auditor of Public Accounts in pursuance of law, to which said balance of funds may be applied, it shall be the duty of the Auditor, upon receipt of certified resolution provided for in section 3 of this act, to draw his warrant on the State Treasurer for the amount of said balance, and he is hereby authorized to pay the same out of the proper fund.” The first question suggested by an examination of this record is, what specific duty is the Auditor shown to have refused or neglected to perform. It will be seen that there is nothing, either in the petition or proofs, to show that there was, at any time prior to the rendering of the judgment in this case, any ascertained amount for which the Auditor could have issued his warrant. Had he complied with the resolution of the county board, for anything appearing in the petition or proofs, he could only have made his warrant for an indefinite amount. In fact it clearly appears, that inasmuch as all registered bonds of Hamilton county had not been declared void, no ascertained “balance of funds to the credit of the bond fund of such county” remained in the State treasury. If, therefore, the county could recover the proportionate part of such balance, which was collected to pay the interest on the void bonds, the amount to which it would be entitled could only be arrived^at by computation. But there is nothing in the statute of 1885 which makes it the duty of the Auditor to ascertain, by any such process, or by any process, the amount for which he shall draw his warrant; and even if it did, this proceeding is not to compel him to perform that duty, but to perform the ministerial act of issuing his warrant for an unliquidated amount. It was not the duty of the Auditor to issue such a warrant. He had no authority of law for so doing, and it would have been wholly unavailing if he had done so. No such warrant could have been paid by the Treasurer. Therefore, mandamus will not lie. “The writ of mandamus will not be awarded in any case unless the relator shows a clear legal right to have the thing sought by it done, and in the manner asked.” “It will never be ordered in a doubtful case.” “The court will always refuse to grant it when it is manifest it will be barren and fruitless, or can not have a beneficial effect.” “Every material fact necessary to show the plain duty of the respondent to act in the premises must be set forth by a party seeking to compel the performance of an act.” “The burden is always on the relator to clearly establish the right sought to be enforced. ” “It must, in all cases, clearly appear that the officer against whom the jurisdiction by mandamus is invoked, is actually in default in the performance of some act which the law specially enjoins as a duty resulting from his office.” These are inflexible rules, applicable to every mandamus proceeding against a public officer, settled by repeated decisions of this and other courts. When they are applied to this case, it is clear that the writ should have been denied. The difficulty with the petitioner’s case results from the fact that the act of June 10, 1885, does not contemplate a case in which only a part of the bonds of a county shall be paid or held void. The first section provides for the repayment of any balance to the credit of the bond fund of a county when its bonds have been paid. By its express terms, “all the bonds * * * that may have been registered must have been paid.” The second section, under which this petition is filed, provides for repayment of such balance when the bonds have been held void. It expressly limits the recovery to cases in which there are no other valid bonds issued by such county, registered in pursuance of law, to which said balance of funds may be applied. Under either section, eases falling within its letter will present no difficulty in a mandamus proceeding. If all the bonds of a county are paid, or if all have been declared void to which the bond fund can be applied, the balance to the credit of that fund does not rest in computation, but is a definite amount, being the whole of that which remains. In issuing his warrant in such case the act of the Auditor would be purely ministerial. The county officers, by going to the State Treasurer, could ascertain the exact balance of that fund, and by resolution of the board request the Auditor to issue his warrant for the amount of such balance, as is required in section 3 of the act. It is argued on behalf of petitioner, that the fund which the county is seeking to recover can not be legally applied to the payment of the valid bonds of Hamilton county; but it is not denied that a part of the bond fund of the county remaining in the State treasury at the time the $200,000 bonds were declared void, might be applied to the valid bonds. In other words, even on petitioner’s theory, there were other valid bonds issued by such county, registered in the office of the Auditor of Public Accounts, in pursuance of law, to which apart of said balance of funds might be applied, and that fact renders it uncertain as to what amount the Auditor’s warrant shall be drawn for. The bond fund is a unit. When it becomes necessary to apportion it, and say how much belongs to the valid bonds and how much the county is entitled to recover on account of the void bonds, mandamus will not lie against the Auditor,—at least until that apportionment has been made, and he is called upon by the county to issue his warrant for a definite amount. "We are also of the opinion, that, under the various provisions of our statute, the bond fund of Hamilton county remaining in the State treasury may be legally applied to the payment of the valid bonds of said county. But in the view we take of the case it is unnecessary to discuss that question. The judgment will be reversed. Judgment reversed.