People ex rel. Hurd v. Johnson

Citations

• 100 Ill. 537
• 1881 Ill. LEXIS 142

Syllabus

<p>1. Mandamus—whether it will lie. While the remedy by mandamus rests largely in the discretion of the court, yet the rule is uniform and inflexible that the writ will not be granted unless the relator’s right to it is clearly established.</p> <p>2. Same—to compel county treasurer to pay county order. As a general rule mandamus will lie to compel a county treasurer, or other public disbursing officer, to pay an order legally drawn upon funds in his hands, subject to the payment of the same, and this though he has, through inadvertence or mistake, paid, the amount to one not entitled to be paid.</p> <p>3. But when by reason'of a complication of extraneous circumstances not specifically provided for by the statute, a well-founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy. The right in such case being doubtful, the claimant must resort to some other appropriate remedy to determine it.</p> <p>4. County officers—no power to bind county by commercial paper. The officers or official agents of a county or other municipal corporation, without express legislation, have no power' to issue commercial paper, and thereby impose upon the municipality the duties and liabilities incident to such paper; and the statute for the issuing of county orders confers no such power.</p> <p>5. County orders—as negotiable or commercial paper—rights of assignee. Warrants or orders drawn by one municipal officer upon another in the disbursement of the funds of the municipality and payment of its indebtedness, are not regarded as negotiable or commercial paper, cutting off equities against the corporation. Chapter 98 of the Bevised Statutes, entitled “Negotiable Instruments, ” has no application to such warrants or orders.</p> <p>6. A county order does not possess the essential qualities of commercial paper. When countersigned and registered by the treasurer, it is at once due without pres