Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-04-21

of the credit under the trust deed by say.
ing this trust decd was executed UC
secure y note, not judgment; and a.
you have now no note, Uut judgment,
your remedy under the deed is gone.
Would any court in ChristendOm enter
tain such su argument?
The court is referred to Freeman on
judgments, section 2I5-2l6, III support OF
the position. THIS author says, section
PIG: "The weight of authority in the
United States shows that whatever may
be cause of action will, If recovered
upon, merge into The judgment or de-
cree" This is undoubtedly true; but does
the consequence follow that, because the
note, bond or What-nOt, is merged in
tue judgment, that therefore right that
attached to the note, etc, il necessarily
lost when judgment is taken on il2
Non cOnStdt.
Freeman says, section 2l7: "EveTy
judgment is regarded for most purposes
as a new debt. The chief, and, perhaps,
only exception being in cases where the
technical operation of the doctrine of
merger would produce manifest hard
ship, and even these cases are by no
means universally excepted" At sec
ton 244, speaking vi this subject OF
merger, as applied to judgments, he
says: "If the prevailing party was enti-
tied to certain privileges, or exempted
from certain burdens, under his contract,
he may be entitled to the same privilege
and exemptions, in many cases, under
his judgment. And, wherever Justice
requires 1t, Judgments Will generally be
construed, not as q new debt, but ss an
old debt in new fOrn.n See also Wy
man rs. Mitchell, l Cow. 80, ,02l; Clark
Us. Rowling, 3 COmstOck, (N.Y.,) 220.
But why cite authorities? The SIM
pie statement Of the proposition seems
to me its best cOnfutariOn.
1t is next insisted that the sinking
fund commissioners are acting under an
ordinance of the city, and the court
will not inquire in this proceeding into
the prOpriety of the ordinance. And
that, ss the ordinance commands them
and authorizes them to buy immatured
bonds, the court will not interfere with
their action. The answer to this is, to
my mind, simple and plain. II this
ordinance pursues the law, the position
would be sound, but if the ordinance is
in violation of law it is void. and the
court will oveTrule it and enforce the
law. Now, the law already cited pro-
vides for sinking fund for the sole pur-
pose of retiring the bonds Of the city as
they mature.
Are the commissioners pursuing this
law when they decline to pay q m8tured
bond, and go out into the market in
stead, and buy Unmarured bonds? There
is but one answer to such a question.
The plan adopted by the commission
ers, as l lean it from argument OF cOun-
sci, is an excellent one, and if they were
allowed to pursue itunmolested, ,iC would
eventuate in the speedy settlement of
the enormous debt of the city. But
this court cannot consider this question
here. The fund that they are using is
sacred-set apart by law but for one pur.
pose-tO pay bonds as they Sail due.
And if they refuse, as It is admitted in
this case they have, to pay these bonds,
when due, they have violated the law,
and the mandate of the court must COM
pei compliance, though an ordinance
OF the city is inteTpOsed for their protec.
ton.
Their duty is plain, and the ordinance
futile. The act gives them no discretion,
but imposes a positive and absolute
duty Wallace 447. Dill. on Mu. Cor,
$50.
Nor is the position Of counsel, that
this court will not interfere with the dis.
cTetiOn Of city authorities, as applied to
this case, tenable at all.
The argument proceeds on the as
sumption that the city council have dis
cretiOn as to hOE they will use the sink
ing fund. This assumption is entirely
without foundation. They have 10 dis
cretiOn. Is it insisted that the words of
the charter section 58, "that the general
council shall have power TO levy" ETC.,
gives them a discretion? II so, it is
contrary to all authority. These words
"shall have power" are mandatory.
They mean where the rights Of third
persons are involved ''it shall be the
duty" etc.
Dillon on Mu. Cor. section $50, says
where an act of
the legislature provided that the city
council "may, if il believe that the pub
lie good and best interests Of the city re-
quireit, levy tax to pay its funded
debt, A Judgment, creditor or a debt
OF this character may, by nldTaddmuS
compel it to ieoy tax if it refuses to do
So"
So where an act OF the legislature de-
clared that the aboard OF Supervisors OF
counties OWING debts which their cur
rent revenues, under existing lave, is
not sufficient to pay, may. if deemed ad-
visable, by special tax, to be used in
liquidation of such Indebtedness" The
supreme court OF the United States holds
that this power was mandatory, if its
exercise was necessary in order to pay
judgments rendered against the city,
and upon the principle that where mower
is given 10 public officers, though con-
fixed in language which is permissive
for it, will be regarded as peremptOry,
imposing a positive and absolute duty,
whenever public interests and individ-
usi rights call Of right for its exercise. "
City supervisors u.s. United States 4, vol.
435; City Of Galena Us. Army 5, Wallace
705 The settled law therefore is, that
all such expressions as "shall have pow
err "may il advisable" etc, used as In
this fifty-eighth section OF the city char.
ter, and ss to persons occupying the
position of these relator5, mean ait is
the duty" etc.
The court, then, would not be interfer-
ing with the discretion Of the city coun.