State ex rel. Brumbaugh v. Magill

4 Kan. 415

• Court: Supreme Court of Kansas
• Decided: April 15, 1868
• Status: Published

Opinion

By the Court,

Safford, J.

The same questions which have just been decided by this court in the case of G-uittard Township r>. the Board of County Commissioners of Marshall County, are presented in the record now before us. We have carefully considered the argument of counsel as opposed to the conclusions reached in that case, and see no good reason to change them. Referring, therefore, to the reasoning as there given, we hold in this case, that the deeds taken by Marshall county for the lands sold for taxes, as set out in the record, were unauthorized by law, and are, therefore, void and of no effect.

Such deeds cannot, therefore, interfere or operate to prevent the respondent from assigning the certificates in question to the relator herein, according to his demand upon him, as shown by the record. The question then presents itself: Is he excused from so assigning said certificates by reason of his having delivered them to the county clerk, in behalf of the county, and causing the deeds to be issued thereon by said clerk % We think not. He was and is the custodian of the certificates, under the law, and if he has parted with them for the purpose named, or in any other way than by assignment to some person entitled to receive them, he has done that which he had no authority to do, and should be required to possess himself of them again. We hold this the more readily, because the respondent may easily recover possession of the tax certificates, as they are, without doubt, in the care and custody of the county clerk. But it is said that the respondent delivered said certificates to the county clerk, under the orders of the county board, and that such fact should excuse him. This cannot be held to be the law.

Their direction to him to do an act unauthorized by law would not help him at all. The law itself must be his guide in reference to matters of this kind, and not. the county board.

It appearing, therefore, that the relator, in making his demand for the assignment of the tax certificates described in the record, upon the respondent, has brought himself withiu the provisions of law regulating such assignment to individuals when such tax certificates' have been issued to the county; and no sufficient reason having been given why the respondent, as treasurer of Marshall county, should not be required to make such assignment to the said relator, it is, therefore, ordered that a writ of mandamus be issued from this court requiring the said respondent to assign and deliver to the relator the tax certificates mentioned and described in his petition herein, and in accordance with the prayer in said petition contained.

All the justices concurring.