The New York herald., 1876-09-08

The act did mot profess TO change the terms Of the 81
curitios exempt the municipality IRON inc ouns T.;
the once OF tho Auditor OF Public Accounts aad pAys
BILE treasury Of the state shut the holder was M
required resort only there ior payment inis M. ,
might fail but whether i. did or not his rgh secured
IN the instrument OF holding the municpaiy a1a '',
for debt was not thereby impaired THIS Is espsV,.y
true when the coupons have boen mergoo in u jung
ment for there Is no provision In me unuins AZ.
pay It, oven II could be paid oy .ho s ,n
% voSed BY The relasor is not takon away. II
would DO singular II 1t we're, when the Town .s wv"
the debt and the Judgment so declares Inc h,,
90 d. 69l) provides 'that the writ OF manoamus snAn
not be because tho petitioner may have
specific legal remedy, when such writ shall anoiu
Whether there is even a better remedy than the one
asked Tor does not arise II is enough 10 know u.s
the writ ID appropriate and sufficient rsmsay "
compel town auditors TO audit a charge against tns
town. when their action Is necessary 10 detetmrs
the amount Of money to be raised by TAXATION 40
Illinois an ordinary execution does NOT issue on sucn
Judgment the corporate authorities, on REFUSAL 70
pay, can be required 10 levy tax Tor the purpose
when the Board Of Auditors have certified that inc
charge against she town proper one. The relatoi
took the steps have this certificate made
but the plaintiffs error only allowed small portion
of the balance due on the Judgment, without any
legal for not auditing Inc resuue
They admit IN their answer the existence OF the JUG
meut and the due thercron, and they are not
at oery to question the liability o the Town 10 pay IL
1t does not differ far as they are concerned from
one obtaned against the town Tor ordinary cnarseA
Auditing IT, SO that provision may bo made for It's pay
meut by taxation, is q mere ministerial act not ih-
yolvi he
ance OF which be coerced by mandamua IL was
rendered by court having Jurisdiction oi Tue paros
and OF subject matter OF this action ana tneIc
no controversy as TO the amount due. But the Juog
ment OF the Circuit Court modified as to direct tho
Board al their next guar meeting to allow the Juag
inert instead OF s.forthwith," ordered This 10 TO
avoid the question of the authority OF the clerk to ex-
tend for the collection OF Judgment on tno GER
ticate OF the auditors made at an irregular mce'inS
Mr. Justice Davis delivered the opinion.
PRAcrIcR-rIxAL JuDGMENT-wRT OF ERROR
No 0l7. Fayan D. Atherton ct al, executors, Sc,
plaintiffs in error, John Fowler Ct aL-ln error 10
the Supreme Court Of the State OF California
The plaintiffs claimed title to the hay IN con.
troversy in consequences ol alleged rshts sSqa'rca
under the act OF Congress passed March lS63, en-
titled act to grant the right OF empton 10 cor
tain purchasers of the Sosco Ranch IN the state o.
California 2 statutes, $685. The decision of the STATE
Court was against their title This presents question
within the Jurisdiction Of this court
The Judgment OF tho Supreme Court Is the nna Judg
ment in the suit within the meaning OF the act Of
Congress- (Kevsed Statutes 7o9l IL reversed ana
modified tic judgment below, and dd not permis
further proceedings the inferior court, II the De-
PENDANTS consented to tho modification directed az 70
the amount OF damages, This consent has been g'ven
as the record shows and tho Judgment of Inc court
below is the Judgment which the Supreme Court
directed that court TO enter and carry INTO execution
The litigation ended by the decision oil the supreme
Court discretion lett Ia the court below II Ino
required consent was given. .
ine writ OF error was properly directed to the Su'
preme Court OF the State We can only re-cxamne the
'shnsl judgment decree in any suit IN the hgnest
state in which decision III the suit couiu De
had Revised Statutes, Sec 709 For the purposes Or
sucn examination require the record upon WHICH
the judgment decree was given anG We sehu out our
writ bring here That writ TO operate on
the having tho record, and not upon tho paras
(Couens VS. Virginia, Wheat, 4lOL Tho CITATION goes
To the parties and brings them before u.s. The writ OF
error therefore, Is properly directed to the court.
which holds proceedings part OF its own records
and exercises Judicial power over them" (hunt VS..
paas How Sso II the nshes. court ha IN ae s s.as Sa,
best certify to US tho proceedings upon WHICH
It has acted and given Judgment As 1t Is INC Judg-
Of tho highest court that we arc 10 rocxainno
we should can, deal directly with that court aud
through It, If necessary upon the Inferior
writ viii never be dismissed for want jurisdiction
because it directed the highest court IN which
decision and could DO had We may not be able
in all cases to reach the record by such writ, ana
may be compelled 10 send out another u dineront
court object bo accomplished, but there
is no ground for dismissal We have tue rght 10 seno
there TO sec II wo obtain what We want
But In of tho States for instance, New YORK
and the practice Tor the highest ceat
after ts Judgment has bcen pronounced, to send tho
record the Judgment to the inferior court where
they thereafter remain. If in such case our wrii
should be sent to the highest court that court mignt
with truth that had no record OF It's proceed
ngs, and, therefore, could not comply with our de-
mand Upon receipt OF such roturn would be com.
pelod to send another writ the court having the
record in its possession IL has been SO expressly do
cidea in GOlston VS. hoyt q wheat 40 and Acvurs rs
arc in any way judiciay informed, that under
the laws and practice of a State tho highest
cords we may send to the highest court
and seek through its instramenialty q
obtain tho record require from tho inferior Court
having il IN Keeping call directly upon the In.
fcrior court ITSELF But II the highest court Is the
legal custodian OF its own records and actually rcsans
them we can only send there 1t Is held TO DO the
rule Of practice, that II the highest court has, atel
judgment sent It's record and Judgment IN accordance
with he aw OF the State the Tor safe
keeping, and no longer has them IN its own posses.
SION may send our writ either to tho highest court
or to the ncrior court II the highest court and
WILL in obedience the requirement. OF the wr pro-
euro u re turn the record and Judgment from tho IN
fer,or court and soUd them U.S. writ uecd go to
the inferior court: But ii 1t fails to do this, We may,
ourselves send direct TO tho court having the record
ia its custody and under lis control But II the law
REQUIRES tho highest court retain Its records,
aud they are practice down TO the inferior
court, our writ can only 60 to the highest COURT
Motion to dismiss denied.
The Chief Justice delivered the opion.
No Gas. Atherton ct al. Va Fowor OF aL-Also dis.
nosod or Inv tho above opinion.