State v. Breese

15 Kan. 123

• Court: Supreme Court of Kansas
• Decided: July 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This is an application for a mandamus to compel the defendant, the clerk of th'e district court of Chase county, to issue certain process. It is addressed in the first instance to this court, and no reason is given why the application was not made to the district court. The defendant is an officer of the district court. The duty which he is charged with neglecting, is one devolving upon him as such officer. It seems to tis there are many reasons why an application to compel him to discharge any of those duties should be addressed in the first instance to that court. There can be no question of the power of that court. It is especially charged with the duty of regulating the proceedings of its own officers. It will tend to promote harmony in those proceedings to have them all controlled by one tribunal. It will prevent conflicting orders. That court is . better acquainted with its officers, can more fully appreciate the reasons for their action, and more justly measure the punishment to be awarded in case of disobedience. There are still other considerations of a different nature, which are generally true. The costs of proceedings in this court are greater than those in the district court. The party is compelled to carry on a litigation away from home, and therefore at greater expense. Testimony will be more by deposition, and therefore less satisfactory. We do not doubt the power of this court, and there may be cases where it would be proper for the application to be first made here; and when such cases arise we shall not hesitate to act. But in this case we see nothing to induce a deviation from that course which seems to us ordinarily appropriate and just. The writ of mandamus lies largely within the discretion of the court, and the existence of absolute legal rights in the party, and jurisdiction in the court, does not always compel the issue of the writ. The State, ex rel. Wells, v. Marston, 6 Kas. 525; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kas. 127.

The writ will be refused. But this disposition of the case is not to be taken as an adjudication of the merits of the controversy, or to prevent an appeal to the district court for such adjudication, or to this court a second time, with a showing of sufficient reasons, if any exist, why appeal is not made in the first instance to the district court.

All the Justices concurring.