Great Falls tribune. [volume] (Great Falls, Mont.) 1887-1890, 1888-05-19
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HO ZEE AJ VS.. CASCADE
,C1sION OF JUDGE BACH IN FAVOR
OF THE ".~# #
q Law Cleariy stated d------Two Ways OF
Paying ths Debt, by Warrants and
by Isondss--A Big Victory for
IL cascade County. M.. -.0

'''l Paying th6ROeDt, Dy "arf'i'e ""
W hon. lDy I30ids4--A Big Victory for
-, Cascade County. --M
D., -
County Attorney Taylor returned from
" l'Gewistown last evening and brings the
and BOD news Of d Cascade county triumph
0E ID the suit brought by Choteau county
M gainst Cascade for $50, 900, due provision
'' or the payment III which, in accordance
Nth law. hayls III Ready been made. The
ase cane I'D lasf Saturday on demurrer
ana the coinplAintof Choteau county. Mr..
C,,saylor, ID ity lstorney for Cascade coun-
ABLY and x01ly argued the case for his
CRGlient, ana Hs McIntire, county attorney
bpy 81 Chote Hull represented the plaintiff
or After al argument Of two hours the court
ioa took the matt Under advisement and on
the 14th. 81 noon rendered his decision
orally, as folloxs
9s T1fE DECISION.
In the case tf# Choteau county against
the county of Cascade, am sorry that the
court should bs obliged to render a decis-
ion, more orAless depending upon his
theory Of the laW, and almost entirely
without any authorities at his command to
cite as precedsnts.
The action III brought to recover a judg-
,mentof $SQ, 900 against the county Of
y Cascade, and Ky based upon the law Great
T. ing Cascade decOunty.
III a contract and can be collected by an
81 In I'm thar
hand the defendant, by his demurrer,
CLAIMS that the remedy sought is not tile
Y proper remedy.
There cannot be any doubt that the law
creating the 100000 Indebtedness is at
least u contract; If it is not Il great deal
more than a contract, in my opinion It far
above a contract, it is a law, and it is a
law which is d part Of the legal existence
Of Cascade county, so that it certainly has
all of the dignity at least that characterz
es any contract that the parties couldpos
sibly make. In the case referred to by
counsel, in the 92 U. S. Supreme ct. Re
port, Larimer county VS.. Albany county,
this principal II ven settled and is bind
ing upon this court, that
First:
The legislature has a right to sub bdi-
vide counties and to create new counties
out OF one or more Old ones
gg Second: ..
Thatin - doing 1T has absolute control
of the matter Of Indebtedness.
II may create the new county without
apportioning any indebtedness and it also
may apportfon the Indebtedness at such
rate as the legislature sees fit. Remem-
beting then that the Legislature has first
the power to create new connties, and,
second, that it has the power TO fix the in
Edebtedness it follows that the legislature
has also the power of fixing the modus
EOperandl OF collecting the Indebtedness.
In that case it was said that the legisla-
sture could create the new county without
Iapportioning any Indebtedness at all,
therefore, as q matter of fact and law,
where the legislature does create new
county and does not apportion any in
debtedness, there would be no common
law rule BY which the old county could |
claim from the new county any portion of
the Indebtedness which had been former
" incurred by the two counties as whole |
IN will be- seen then that the remedy, or
rather rightof Choteau county, to collect
$4,000 of Indebtedness from Cascade |
county is not Ia common law right in any
WAYy shape Or manner, but it is entirely
jJlAN right, created by the act of the legis-
si1tslfs wow, the court apprehends the
rule this, that where light has existed |
and remedy for that right, and the legis-
latlEe esa new remedy, the courts will
coslsi fAat TO be cumulative remedy,
unless 1t&ppears upon the face of the law
that Ssislature meant to repeal the
kS S1edy; and the law is equally
e{5 that where a new right is
Y d y remedy given by the law
e$es the right, that remedy is
am very sorry, as | have al
that am without the title of
IA sustain this proposition, but
Oubt about that in my1own
ey are elementary propositions
81 concerned. That being the
ght being created by statute,
eedy being given by statute, 1t
\ remedy fora statutory right,
sive in its nature.
Pm the part of Cascade coun-
is no right of one against
\ I s;:gss! put corresponding duty on
NJ 1e other) was to pay 100000
county, and the right on the
!SsA xs5A county of Choteau was to have
tl4S Epaid. @
..s Imposed upon Cascade coun-
Nj ald law, was to pay that in
either in one of the two modes
PE4 n the statute.
e, then, the right of Choteau
thas uS.a9 collect $4,000, and the duty of
w. Sa "A commissioners Of Cascade I
coun5 pay that Indebtedness, either in
~ w. s ways at certain time. 1t is
n aises opinion, an elementary propo- t
Y Nv, that, where public official
y Y 9Q4H 1y law to do thing writ of $
,aseaal asaa from proper authority can be |
ssa4z TO that officer, or board of Off {
4 I! pelling HIM OF them to perform /,
N S5 NJ ls true that where discretion c
.ed in board of county commits I
5|s w.. ne court will not grant mandate
the board to exercise it's dis +
n a certain way; and neither a :
nor an injunction will ever issue +
Aere the court can compel a full {
~ ance Of it. To use the principle Il
lnAVe in nv mind hut r do no+ | l.