dissenting, says :
The principle involved in the decision just announced, and • its effect- upon the law, forbids that I should withhold, a - full and explicit statement of my solémn convictions' touching the grounds of my ’dissent, with the reasons upon which they are based.
"With all due deference for the opinion of the majority of the court,-! must be permitted to say that, in my humble opinion, they have delivered a dissertation on the powers and authority of the county courts, and seem to have ignored the question presented by the record in this case. If the determination and finding of the court upon their argument was correct, the reason they have given would be a matter that I would scarce take the time to refute, but both, in my opinion, being wrong, I shall briefly state the reasons that have' forced my present convictions.
This was an application for a mandamus by Barnes & Bro., against the treasurer of Pulaski county, to compel the payment of certain county warrants or scrip -in the hands of Barnes &' Bro.
The record presents but one question, and that is: Bid the court err in sustaining the demurrer of Barnes' to the answer or response of the treasurer?
The response of the treasurer says that the county' court ordered all county scrip, issued previous to the 15 th of October, 1866,then outstanding, should be presented to said court on or before the 18th day of February, 1867, for the purpose of classification and reissuing, and refers to the order of the court and makes it a part of his response, whereby the collector and treasurer are directed not to receive • any scrip issued prior to October 15, 1866.
Tlie office of collector and treasurer are created by law; they are not members of the county court, and their duties áre as independent of the county court as the Executive of the State. Arrogating to themselves almost dictatorial powers, the county court, on its own motion, attempts to issue a perpetual injunction against the collector and treasurer of the county, prohibiting them from receiving the scrip issued by the clerk of the county.
Under the provisions of see. 58, chap. 147; Gould's Digest, the county courts arc empOAvered to call in their county scrip once in every three years. The 59th section of same chapter requires the sheriff to 'give notice, in the manner therein prescribed, to the holders of the scrip to present the same. The 60th section debars all scrip not presented Avithin the time given for presentation.
Tlie amended petition of ’Barnes stated that, before the 13th of .February, 1867, he presented said scrip to the .clerk of the county, according to the terms of the order, set forth in said petition, made by the county court.
The validity of the action of the county court, in calling in the outstanding county scrip for classification and reissuing, is a matter that I need not discuss.
Under this form of proceeding, had the county court any power or authority to issue an order or command to the collector or treasurer, directing them to not receive or protest any scrip issued before the loth of October, 1866? I am clearly of opinion that it had not, and that., in that respect, their action was illegal and void; and, being illegal and void, tlie court boloAv did right in treating it so; and their action was no authority under Avhicli the treasurer could protect himself, lie could not plead tlie order, because it had rio legal effect.
If the county court desired to control the action of these officers, they should larve applied for an injunction to the circuit eóurt.
So far as the treasure)- is concerned, in the absence of any legal command to the contrary, heAvasand is bound to pay tin1 scrip of the county, when presented, if he has the funds in his possession for that purpose. It is not for him to say that the county court never made an order authorizing the county clerk to issue the scrip, or that the clerk issued the same without authority.
The scrip itself purported to be the warrant of the court, under the seal thereof, commanding- him to pay, and, so far as he was concerned, he was bound to presume that all the requirements of the law had been complied with.
The validity of this scrip is not before the court, nor are we called upon, in my opinion, to decide whether warrants issued and signed by the county clerk are binding on the county. The county is not a party to this proceeding, and we have no power or right to adjudicate upon such questions at this time.
The alternative writ had been issued, and to this writ the treasurer makes his return, and if good cause is] not shown by him, no matter what the merits or demerits of the county may be, the peremptory writ ought to issue. To say that a county may have dishonest, incompetent and unfaithful officers, as it appears was the.case in this instance, and that the county authorities, who arc charged with the protection of its interest, can sit idly by and see an application made for a mandamus against] the treasurer, to compel the payment of the scrip that they have ordered refunded, without taking stejis to restrain the payment, certainly shows a dereliction of duty that deserves a severe reprimand, rather than the sympathy expressed by the majority of the court.
The return must contain a full and certain answer to all the averments made by the petition, and a fair and legal reason for disobeying the mandamus. In point of form, it requires the same certainty and precision necessary in other declarations and other pleadings. 6 Bacon Abrg., 447.
Every allegation of the petition, save one, is admitted by the answer, and the only thing denied by the answer is, that Barnes presented the scrip to the county clerk before the 18th of February, 1867. If, then, the same certainty is required as in other pleadings, from the person making the return, what fact or legal reason is set forth for disobeying the mandate to pay, or show cause why he should not, is or was presented to the court below.
Mandamus, although not a chancery proceeding, so far as the pleadings are concerned, partakes of that nature. If, then, this return had been an answer to a bill in chancery, and had not been sworn to, would it not have admitted all the allegations of the bill, and would not the Chancellor have granted the prayer of the bill, if no other defense had been made? This being true, was not the court below placed in just the same condition as though no return had been made by the treasurer; or was not the court, at least, placed in the same condition as though no sufficient return had been made; and, having been so placed, was it not the duty of the court to have awarded the peremptory writ? I think it was, and that the return made by the county treasurer admits all the allegations of the petition, and can not be construed into denying any thing, or setting up any defense, or showing any reason why the peremptory writ should not issue.
Whether a general demurrer was the proper manner to raise the question of verification, I do not propose to discuss. I know that the general demurrer, in effect, said that the return was not in law sufficient. It is ■ nowhere asserted by the return that the county is not legally indebted in the amount of these pieces of scrip, and the attempted defense set up by the treasurer would not, in my opinion, be sufficient to have delayed the issuing of the peremptory writ.
The treasurer does not show any legal authority restraining him, or that he did not have the funds to redeem the scrip, and the peremptory writ ought to have issued.