Great Falls tribune. [volume] (Great Falls, Mont.) 1887-1890, 1888-05-19

Whlcn she had contracted to do; but the
court did restrain the defendant from
singing for anybody else. And in the cast
Of county commissioners Of Custer count,
vs. the commissioners of Yellowstone Co.
6 Montana, where the two boards would
not come together and agree, | have nc
doubt that q mandate would not issue
because it would be an impossible for the
the court to compel County Commiss
toner's to agree, as it would to compe
Attorneys to agree. But where there arc
two alternatives, where Il man must dc
"a" or must do ''B" think the court has
full power to issue this mandate compel
ing him, within certain time, to arrive
at his conclusion, and then to perform
~" or "B" as he shall prefer to do. So
think that, in this case, a mandate OF
the court would certainly issue directing
the defendants in this case to do one or
the other OF the two things by means OF
which the Legislature declared the in
debtedness should be discharged.
LII that be true, and from the author
tiles it is one of the elementary principals
OF law, in my opinion, if it be true that a
mandate would lie, then it is equally
true that an action would not lie, because
where party is entitled to mandate
there cannot be any speedy, adequate, and
complete remedy at the law SO that if
we reason from the other end of the ar
| gument we reach the same conclusion.
that mandate is the proper remedy here
and is exclusive, and, in my opinion, that
is the proer remedy in this case.
| That the legislature never meant that
an action should be brought is quite ap-
aren't. The Indebtedness which is con
tracted here is an Indebtedness which must
| be limited to six per cent interest. That
was the intention of the legislature alb
solutely. If Il judgment was obtained,
| the interest would be ten per cent, and
it is little difficult to see why an action
should be brought which must finally
terminate in mandate, if counsel for
| plaintiff is correct in his statement as to
the modes of collecting judgment against
the county.
That is, however, not portion of my
opinion in this case by which am bound
The position taken in this case, and the
obiter dictum of Judge Galbraith in the
Yellowstone county case is referred to as
IN authority. The position is taken that
q cause of action is stated here, that the
judgment is no part of the complaint, and
there being a cause of action stated, that
the court will not sustain a general de-
murrer.
think that, undoubtedly, is the general
rule; but apprehend that the rule means
such cases are of the same general
nature, but notcontrolling cases which are
entirely different in the manner of pro-
cedure.
Now, in ordinary actions summons
is issued without any reference to the
court whatever; in a mandatory proceed
ing | find there is no summons issuing
from the clerk, but there is a mandatory
order OF the court addressed to the
defendant, in the alternative perhaps, as
the court may see tit--generally in the al
ternative-command them to do the
very thing sought in the petition, or to
show cause upon certain day why they
should not do so.
Note the difference between summons
and such an order as that If a summons
is served and default made, Judgment.
common law judgment, can be entered
If demurrer is interposed the demur-
rer may be overruled and the court will
give leave to answer, that is all-it cannot
compel--it may give leave to answer. and
if the answer is not filed there is a iudg-
ment, but there is not any judgment upon
which contempt of the court can be
founded. There would be no Judgment
the county of Cascade could be put in
the county Jail of Cascade county if they
did not obey that judgment. Such is the
distinction in my mind.
A mandate is special proceeding of
the court-it is a summary order Of the
generally, say, there is prelim-
mary order so that if default is made, a |
judgment in equity can be entered, hav-
ing the full power OF the court, upon
which the aid of the sheriff may be called |
in to enforce the writ of the court.
think there is broad distinction be-
tween the ordinary action, ending in a
common law judgment, or an equity |
Judgment, and a proceeding special in its
nature such as a mandatory proceeding.
The proceeding is dltferent-an action
is commenced by complaint, the proceed
ing for mandate is by petition. The next |
step is different, as | have already said, |
to=Wit: The summons issued in one and
a writ Of mandate in the alternative OF di-
rect, issued in the other.
1t cannot be supposed for moment
that would, upon the sustaining of the
demurrer, issue mandate to these par
ties here compelling them to pay these
bonds; if it was an action I could do So,
if it was mandatory proceeding 1 could
not 90 SO. Without any doubt believe
would have the power to issue the alter
native mandate upon a petition, and then
defendants may come in and show cause
why the final mandate should not issue.
say then that am of the opinion that
he highest form of Indebtedness is Gre
tied by the act of the legislature; that
,ourts exist, as far as actions of Indebted
less are concerned, for the purpose of
king the Indebtedness, which necessity
loes not exist In this case, because the
erritorial legislature has fixed the in /
lebtedness. I
In the second place am of the opinion
hat it is new right, unknown to COM
non law, that it is a right created by the
tatute, which Choteau county never had t
'efore, and that the statute itself gives an ,
dequate remedy to maintain that right.
hat being the case the remedy is exclu-
i've There is no discretion in the board
f commissioners of Cascade county eX \
ept to do one of two things, therefore n
mandate is the proper remedy to compel :.
1so cffa to TI11tl |