Mountain Democrat., 1857-07-11

the TSnallticT oI tnc NcuT, VIII more Than
equal the revenue of the county for cur
rent cXpcuStS; and the d, murrer Of the
respondents admits it, for any demurrer
admits, Tor the purposes of Ilir al gumcnt
the allegations ,lcmurrcd to. Now il be.
ing my duty $50 to ConStruc the statute"
as to give effect and meaning, n possible.
to every CLAUSE aud word contained in
it," can there be any thing palmer than
that the power to cr,cta Court house can
only hc rNCrciScd when there are funds
with which it can be done, without involy.
ing the county beyond her revenues for
current expenses
If lfneccSsity is the rule by which VIC arc
to construc the statute, then the 10Th scc
ton is meaningless tissue Of nonsense.
and the Board Is uncontrolled except bv
thcirOwn prudence and discretion. They
may contract debts to an unlimited *
tent and impose upon the people Of the
county the most OnGrOuS taxation for.
it will he observed, that the limitation is
found in the 10th section alone and al
plies aS much to the liabilities contracted
for building Court House as to any 9th.
Cr liabilities, and if Court House liabili.
ties are not embraced, neither are nc.
counts or liabilities Of other descriptions.
and the Board may contract and allow
without stint or measure, regardless of
the state Of tho county revenues, until
the debt has -Swollcn- into a monster of
oppression. ConcCdc the power to act
because of conceived necessity, and YOU
grant n discretion that it is idle to talk
about controlling. The word necessary
cannot c0ntr0t:- for ''ttIc degree eft the
necessity cannot be test of the Iight.
but cNpcdirncy only, Wharton, 439:
witt vS. the City of san Francisco, 2 Cal.
"sg; County OF Sacramento We. John N.
Rhodc, ct al.. decided by this Court.
The same argument Of necessity was
urged in Tie I'Cn,Ie Is. JohhSo,, and
-\""HW,S rs. DcpyitsS, but the Supreme
Court diSrcgarlcd it, for no better rca.
SONS, in my Judgment, than exist in this
CASE.
For these reasons. am Of the OPINION
that the second ground Of drmurrCr il
not we'll taken.
We now como to the third and last
crouhd, that "thc complaint dOcS not
SIlNN wv w tIItIIISS 10 bC
done the rtlator or other tax payers, or
that he has any equity to entitlc him TO
the relief Ivy injunction; or that the at
to bt cnjoincd would iniurc him or h is
property, or affect the public iniuriouSly."
The complaint alleges that the relator
Is 4 resident taxpayer Of the county, and
that large debt i, about To bc created in
violation uf!aw. Every TAXPAYER in the
county is liable to contribute To tho nav.
mcnt Of the county Indebtedness, in pre-
portion to the amount Of his aXablc PROB
erty; and | suppose it scarcely necessary
for nc to remark that these d,Lts are
payable only by taxation. Hence, altho'
the debt iSA pubic one, each individual
is bound to contribute his proportion Of
it, and il it is li,Sa!!y contracted Is iniu.
rcd 10 that extent. The rvlator is not a
party, strictly Speaking, but mere in
former, who brings tn the notice of tho
public the wrong about to be pcrpctratcd
and has an interest in common with tho
other taxpayers of the county in pre-
venting it. Such appears to he the set
u,d practice in England, in sin.ilar castS
Eden Oh lnlunctionS, . vol. 9HG; SCr,
also, ,Icwett vs.. the City OF San Francis.
c", , Cal. 2e9; People, OK itl, Church,
VI. Hester, October term, 1856.
In Jcc,ft I. tity ~ .Srh F,Mnrisco,
the interest nj the Plaintiff, so far as il
appears from the report OF the case, was
precisely the same as the REALTORS. The
allegation was that they were mere tax
payers Of the county, aud that the pur-
chase about to be made by the board was
illegal and without authority Of law and
here would remark, in as much as the
case has been rxlicd on hy the rcSpon.
dents, that upon q careful examination it
! viii bc found To support tho construction
have placed upon the 10th section Of
the Act under consideration. 1t appears
TO have been admitted by Justice An,lcr.
son that if the debt unprovid,d d for had
exceeded the limitation in the City Char.
ter, the purchase would not have been
sustained.
1t is, also, urged that an injunction
will not lie, for the reason that the rcla-
tor aud the public have perfect remedy
Mt law if tax should be levied to pay--
But this position is incorrect, for the rca-
son that the legality Of the debt depends
upon the correctness or incorrectncss of
estimates aS to the liability Of the county
at the time the debt is contracted,
tcrs that do not appear upon the face Of
the proceedings 10y which the liability is
contracted, and where that is the case,
it is well settled that third persons who
deal with the county upon estimates made
by those who have authority to make
them, however erroneous they may be,
cannot be prejudiccd, and the remedy is
10y some restraining process which will
| prevent the contract from being entered
| into.
For the above reasons, am Of tho
opinion that the demurrer is pot well ia.
ken, and ought to be ovcrTuled. -
1t was agreed ctwcen counsel for the
Rclator and Respondents that the Board
should have twenty daysto answer to the
merits, in case the dcmufreA was over
ruled. The Board, will therefore, be re-
CURED to ANSWER to the merits Of the rule
on the Sth day Of July next. at the hour
Of 10 o'clock 4. NJ, at the Court House
in PiacCrvillc. j. NJ. HOWELL,
District Judge.
At th0cxpiration Of twenty days, the
time given hy Judge Howell in which to
file an answer in the case Of aAe People,
| tJr rel, ". H. Stone rs. u M Dorsey 1t