# Supervisors v. United States (71 U.S. 435)/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
71 U.S. 435
Supervisors v. United States
'The rule to be gathered from all these cases is too well settled to need further discussion. The mandamus cannot issue in a case where discretion and judgment are to be exercised by the officer.'
Similar principles were declared in United States v. Guthrie.
In the case at bar it will be observed that the relator demanded the levy of the tax, and that the board of supervisors, plaintiffs in error, refused to make it.
It thus appears that the board has exercised the discretion vested in it by the law of February 16th, 1863, and deemed it unadvisable to levy the tax to pay the defendant's debt.
I. This being a mandamus to collect a judgment, any error in the judgment to collect which it is brought, only comes collaterally in question, and therefore the question is not before this court.
II. As to the second point, we answer that the county treasurer has no funds; and that this mandamus was brought to compel the board of supervisors to levy a tax, to provide them. The argument, as to the method of paying debts when the money is at hand to do it with, has nothing to do with the question of raising the money to pay them with, when no money can otherwise be had.
III. Passing to the important question in the case, we insist that the words 'if deemed advisable' have the same legal signification as the word 'may' alone, or 'shall have power,' and no other.
In Mason v. Fearson, in this court, the words 'it shall be lawful,' are construed as mandatory. In laying down the rule for the construction of words of permission, the court says: 'Whenever it is provided that a corporation or officer 'may' act in a certain way, or that it 'shall be lawful' for them to act in a certain way, it may be insisted on as a duty for them to act so, if the matter, as here, is devolved on a public officer, and relates to the public or third persons.'
'Without going into more details, these cases fully sustain the doctrine, that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do.'
In The Commonwealth v. The City of Pittsburg, Grier, J., on the circuit, says:
'It is absurd to argue that conferring such a power (taxation to pay bonds) is imposing no duty. The select and common council are public agents, created to perform a public trust. One of the purposes of their creation is, that they may provide for the payment of the debts of the city. It is true that the act of February 7th, 1863, only declares that the city shall have power to make provision for the payment of the principal and interest of the money borrowed, by the assessment and collection of a tax, but in the statute the word 'may' means 'must' or 'shall' in cases where the public interest and right are concerned, and where the public or third parties have a claim de jure, that the power should be exercised.'
The argument for the plaintiff in this case is based on a mistaken idea of what discretion is. An examination of authorities will show that disputed facts are necessary to found a 'discretion,' or a 'deliberative judgment,' (in the sense used in the authorities) upon. In the case of The People v. Supreme Court of New York, the nature of a 'discretion' that cannot be controlled by the courts is discussed. The court says:
'It is that discretion which is not and cannot be governed by any fixed rules. We will not act upon our judgment in opposition to the judgment of a board of supervisors as to what is a reasonable compensation for services performed by a constable. . . .. It is to their judgment and discretion and not to ours, which the legislature has left that matter.'
They add, that had the board of supervisors refused to grant anything on the ground that they had no discretion, or that the officer had no right to any compensation, they would have interfered to 'set them in motion and determine the law, for they are legal duties and legal rights if they exist at all.'
It appears from authorities that if the facts are not disputed, there is no 'discretion' to exercise, and in this case the facts are admitted. If it is contended that the supervisors are to render a deliberative judgment on the law, we answer, that by the constitution of Illinois, they can have no judicial powers, and if they could have such power, it can be controlled by the court.
We think that an examination of the authorities cited by the plaintiff in error, will show that in every case cited, the respondents were to judge of facts more or less uncertain, or otherwise were invested with judicial powers.
In The Commonwealth v. The County Commissioners, cited on the other side, the court say:
'The law has vested the commissioners with the power of approving or disapproving of the account, and we cannot take it away from them.'
The law provided that the commissioners should draw an order if they approved of the bill.
In The People v. Supervisors of Albany, the applicant by law was to have such sum as they (the supervisors) shall judge he reasonably deserves to have. The supervisors had passed the claim, and the court says, this was a discretion left to the supervisors, which we cannot control, that the relator was not entitled to any particular sum, and that the amount to which he was entitled was by the very contract to be determined by the supervisors.
The case of United States v. Seaman, is decided on the ground, that the superintendent of printing was obliged 'to examine evidence, and form his judgment before he acted; and whenever that is to be done, it is not a case for a mandamus.'
In the case of United States v. Guthrie, the court says:
'The only legitimate inquiry for our determination upon the case before us is this: Whether under the organization of the Federal government, or by any known principle of law, there can be asserted a power in the Circuit Court of the United States for the District of Columbia, or in this court, to command the withdrawal of a sum or sums of money from the Treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States.'
The decision of the Circuit Court, overruling the application, was approved.
After examining a great number of cases (though not perhaps all the authorities quoted by plaintiff in error), we find none in conflict with the position assumed in this argument.
Mr. Justice SWAYNE delivered the opinion of the court, having first stated the case.
We have not had the benefit of an oral argument upon either side. The case was submitted upon printed briefs. We shall confine our examination to the points thus brought to our attention.
In the return of the respondents to the alternative writ numerous objections were taken in regard to which their brief is silent. We take it for granted they have been abandoned, and shall not consider them.
I. It is said the court below, in rendering the judgment, allowed interest upon the coupons from the time they became due.
The judgment cannot be thus collaterally questioned. It can be impeached only in a proceeding had directly for that purpose.
II. A statute of Illinois provides that when a judgment is rendered against a county no execution shall issue, but that the county commissioners' court shall draw a warrant upon the treasurer for the amount, 'which shall be paid as other county debts.'
Such a warrant was applied for and refused, after the rendition of the judgment. If the judgment of the court below is sustained, a warrant can yet be issued when the fund to pay the judgment is provided, if a warrant be necessary to complete the obedience of the respondents in paying over the money according to the command of the writ. There is nothing in the objection as a matter of error.
III. The important question in the case is whether the respondents are compellable to levy and collect, by taxation, the amount specified in the order of the court below.
The writ, if issued, must conform to the order.
The court below proceeded upon the act of February 16th, 1863. We have not found it necessary to consider any of the other acts referred to in the briefs.
That act declares that 'the board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent. upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness.'
The counsel for the respondent insists, with zeal and ability, that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors, and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the subject. Great stress is laid by the learned counsel upon the language, 'may, if deemed advisable,' which accompanies the grant of power, and, as he contends, qualifies it to the extent assumed in his argument.
In The King v. The Inhabitants of Derby, there was an indictment against 'diverse inhabitants' for refusing to meet and make a rate to pay 'the constables' tax.' The defendants moved to quash the indictment, 'because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be.' The court held that 'may, in the case of a public officer, is tantamount to shall, and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt.'
In The King and Queen v. Barlow, there was an indictment upon the same statute, and the same objection was taken. The court said: 'When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen. VI, says the sheriff may take bail. This is construed he shall, for he is compellable to do so.'
These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.
In The Mayor of the City of New York and in Mason v. Fearson, the words 'it shall be lawful' were held also to be mandatory.
The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language-whenever the public interest or individual rights call for its exercise-the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.
In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose 'a positive and absolute duty.'
The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter category.
The Circuit Court properly awarded a peremptory writ of mandamus. We find no error in the record. The judgment below is
AFFIRMED.

## Notes

* ↑ Ib. 304; and see Towle v. The State, 3 Florida, 202; Chase v. Blackstone Canal Co., 10 Pickering, 246; Ex parte Black, 1 Ohio State, 30; McDougal v. Bell, 4 California, 178; McGee v. Board of Supervisors, 10 Id 376; The City v. McKean, 18 B. Monroe, 17.
* ↑ 9 Howard, 237.
* ↑ Citing Rex & Regina v. Barlow, 2 Salkeld, 609; The King v. The Inhabitants of Derby, Skinner, 370; Blackwell's Case, 1 Vernon, 152-154; Newburg Turnpike Co. v. Miller, 5 Johnson's Chancery, 113; City of New York v. Furze, 3 Hill, 612-614; Minor et al. v. The Mechanics' Bank, 1 Peters, 64.
* ↑ American Law Register, vol. 3, 292.
* ↑ 5 Wendell, 125.
* ↑ The People v. The Supreme Court, 10 Wendell, 275-290; Anon., 2 Halst. 160; Rex v. Justices of Worcestershire, 1 Chitty, 649; Rex v. Justices of Carnarvon, 4 Barnwall & Alderson, 86; Rex v. Justices of Monmouthshire, 4 Barnwall & Creswell, 844.
* ↑ Article ii, Sections 1 and 2, and Article v, Section 1.
* ↑ 5 Ohio State, 538; State of Ohio, Ex. rel., &c., v. Chase.
* ↑ Bank of Wooster v. Stevens, 1 Ohio State, 233.
* ↑ Skinner, 370.
* ↑ 2 Salkeld, 609.
* ↑ 3 Hill, 614.
* ↑ 9 Howard, 248.
* ↑ See The Attorney-General v. Locke, 3 Atkyns, 164; Blackwell's case, 1 Vernon, 152; Dwarris on Stat. 712; Malcom v. Rogers, 5 Cowen, 188; Newburg Turnpike Co. v. Miller, 5 Johnson's Chancery, 113; Justices of Clark County Court v. The P. & W. & K. R. T. Co., 11 B. Monroe, 143; Minner et al. v. The Merchants' Bank, 1 Peters, 64; Com v. Johnson, 2 Binney, 275; Virginia v. The Justices, 2 Virginia Cases, 9; Ohio ex rel. v. The Governor 5 Ohio State, 53; Coy v. The City Council of Lyons, 17 Iowa, 1.
* ↑ The People v. Sup. Court, 5 Wendell, 125; The People v. Sup. Court, 10 Wendell, 289; The People v. Vermilyea, 7 Cowen, 393; Hull v. Super visors, 19 John, 260.
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