Board of Education v. Spencer

52 Kan. 574

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J.:

The first ground of the motion to quash is, that the plaintiff has a plain and adequate remedy at law, and that the cases of The State, ex rel., v. McCrillus, 4 Kas. 250; The State, ex rel., v. Bridgman, 8 id. 458; Byington v. Hamilton, 37 id. 758; The State, ex rel., v. Hannon, 38 id. 593, are decisive of this case. Those cases all relate to the payment of claims of private persons out of public funds. This ease is to be distinguished from those cases, because here it is sought only to transfer funds raised by taxation for a public purpose from one public depository to another — from the county treasury to the treasury of the board of education. It is doubtful whether the case of The State, ex rel., v. McCrillus, supra, is in accord with the weight of authority in other states. We are not inclined to extend the rule as there declared, and followed in subsequent cases, to a case like this, where public interests require the transfer of public moneys from one depository to another. It appears to us, however, that a more serious difficulty stands in the plaintiff’s way in this form of action. The taxes sought to be recovered extend over a period of 17 years, and it is contended by the defendants that most of them appear from the writ to be barred • by the statute of limitations. The averment that they have never been paid out, but are now in the hands of Spencer, as county treasurer, is perhaps sufficient to avoid the bar. of the statute, but a summing up of this immense number of separate transactions, attended by a computation of interest on each, and a determination of the portion of each separate assignment or redemption due the plaintiff, especially where the transactions extend back through the terms of office of many different officers, presents a case for the determination of which mandamus is not an appropriate remedy. It will be impossible to determine the rights of these parties without a long and complicated accounting. Eor that purpose, the writ of mandamus is inadequate. An ordinary action in the district court will afford a more suitable and complete remedy than this.

The plaintiff concedes its inability to state the sum to which it is entitled. It seeks by this remedy to compel the present incumbents of the offices of treasurer, clerk and county commissioner to make such computations and to determine the amount due it, and, in doing so, to go through and make up long accounts which their predecessors should have made. It is unnecessary for us to hold that this could not be done in any case, but we do hold that, in the exercise of a sound discretion, it should not be attempted in this.

The motion to quash is sustained.

All the Justices concurring.