In re Cunningham

1. State Lands; Eight to a Patent; Receipt of State Treasurer. Neither the act of the legislature of Kansas entitled “An act providing for the sale of public lands to aid in the construction of certain railroads,” approved February 23d, 1866, (Laws of 1866, page 142,) nor any other act makes it the duty of the governor to issue a patent for land sold under said act of 1866, until “a receipt of the state treasurer for full payment” for the land has been presented to him. 2. Mandamus, Against Public Officer. A writ of mandamus can be issued against a public officer only in a case where the officer has neglected or refused to perform some official duty. And therefore, where no “receipt of the state treasurer for full payment” for land sold under said act of 1866, has been presented to the governor, nor even issued, a writ of mandamus will not be issued against the governor to compel him to issue a patent for land sold under said act.

Original Proceedings for Mandamus. A verified petition for a mandamus was filed in this court on the 16th of March 1875, which alleged the following facts: “That on the 8th of June 1868, one H. S. Cunningham purchased from George W. Veale, who was then the duly-appointed, authorized and acting agent of the state for the sale of the same, the S.E.J of section 6, in township 6, of range 5 east, said land being a part of the 500,000 acres granted to the state of Kansas by the act of congress approved September 4th 1841, and by the state of Kansas ordered to be sold by virtue of an act of the legislature approved February 23d 1866: And at the time of said purchase said Cunningham paid one-half of the purchase-money, to-wit, the sum of $160, and gave his note for the balance, to-wit, $160, payable two years after date, and thereupon he obtained from said agent a certificate stating the facts heretofore set out, and stating further, that on payment of said note and presentation of said certificate to the governor of said state he, or his assigns, should be immediately entitled to a patent for said land, which said certificate is now produced for the inspection and order of this court. That on the 19th of April 1869 the said H. S. Cunningham duly and for a valuable consideration assigned said certificate to the relator, which assignment, duly acknowledged, is here presented to the court for inspection. That after the note hereinbefore referred to became due, to-wit, January 9th 1874, the relator paid the same, principal and interest, to one R. D. Mobley, (who was then the duly-appointed and acting agent of the state to sell the lands hereinbefore mentioned, and to take pay for the same,) and took up said note, and received from said Mobley a certificate that the payments in full had been made on said lands, which said note and certificate are now shown to the court. By reason of which facts your relator became and is entitled to a patent for said land, and accordingly on the 10th day of March 1875 she exhibited the papers hereinbefore referred to to Thomas A. Osborn, who was then and still is the governor of the state of Kansas, and demanded that he issue to her a patent for said lands, but the said Thomas A. Osborn, disregarding his duty in the premises, refused and still refuses to issue a patent, admitting that all that is set forth in this petition is true, but alleging that the relator has not produced •a receipt from the treasurer of state for the money so paid. “The relator admits that she has not and cannot produce such a receipt, for the reason that the treasurer refuses to give one. The relator is informed and believes it to be true, that the said R. D. Mobley, disregarding his duty, has not paid said money into the state treasury, but is wholly insolvent, and has converted said money to his own use. The relator has no plain and adequate remedy in the ordinary course of the law, and therefore prays that a peremptory writ of mandamus may issue at the cost of the relator, to Thomas A. Osborn, commanding him forthwith, as governor of the state of Kansas, to issue to relator a patent for the lands hereinbefore described.” and made oral arguments in support of their motion for a mandamus. No appearance in opposition.