Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1889-07-23


terest. bearing bonds. The obligation
imposed upon the county is to pay these
coupons as they from time to time fol
due, and to pay the bonds from which he
coupons are taken as they mature. The
plaintiff has the right to invoke the aid OF
the court to enforce Il strict compliance
with this obligation. But no considcra-
ton Of public faith, justice or OF individual
right calls for the exercise of the power
conferred upon the county commissioners
by the legislative assembly.
\ statute permissiye in form is never
per Sc mandatory and will only he con
strucd to be mandatory because Of some
pre-existing right which entities the
public or an individual to demand the ox-
orcise of the power. The law makers will
be presumed to have used pcrmissyc
words in their ordinary meaning unless
there is something in the nature of the
thing empowered to be done something
in the object for which it is to be done
{ something in the condition under which
I it is to be done, something in the title Of
the person for whose benefit the power is
( TO be exercised, which NAV couple the
| power with duty and thus render man
datory words which are pcrmissiye in
! form.
The intent is to be judged by the pur-
poses OF the statute, where those purposes
are to provide for the doing OF something
for the sake Of justice; something which
concerns the public right or interest, and
for the doing of which the public has a
claim de jure something which concerns
and subserves third parties, and for the
doing OF which they have Il claim based
upon existing rights, and where the thing
to be done concerns and subseryes rights
both of the public and of indivi iuas; in
all these cases an interest is to be inferred
that i'll using permissive phrase the
Legislature really meant to enjoin an I'M
perative duty. Endlch on the lnterpreta-
ton of Statutes, section 3l2.
Measured by the above rule Of inter
depreciation can not hold this statute
to be mandatory. The funding of these
coupons may concern and subserye the !
plaintiff, but has he an existing right to
have his coupons funded that entities
him TO demand it? The two things must
concur. 1t is not sufficient that his in |
terests would be subserved, he also must ,
have an existing right to demand that the
commissioners Shall ACT.
The public may be concerned and sub
served by the funding OF these coupons,
but at best that is a matter OF opinion,
and as shown by the evidence the public
is divided in opinion, and the county
commissioners to whom is committed pub
lie questions OF this kind, have have de-
cided that the public interests will not be
subscrved by so doing.
The plaintiff has the right to demand
payment by the county OF Santa Fe OF its
to him as evidenced bv the |
coupons in his possession, but he may not |
demand that such evidences Of indebted
ness Shall be taken up and merged in
different form and Il new obligation be
thereby created. The counsel for plant
if has argued with much ability chat the
enforcement against the county of its
to plaintiff would, under the
circumstances OF this case, be oppressive
and rulnOus to the people Of this county
in this, that they would be taxed to pay
at once a large sum which otherwise
might be distributed through a series of
years; that the object OF the statute is to
avoid the necessity of such a strict COM
pliance OF its obligations by Il county"
This argument should address itself with
much force to the county commissioners.
They are the guardians OF the financial
affairs of the county; they are expected to
use their discretion wisely and for the best
of the county.
1t would seem to be the part of wisdom
for the board of county commissioners to
accept from the creditors OF the county
any settlement which would relieve the
tax payers from the enormous taxation
that would surely follow were immediate
payment of these and other obligations of
The county to be enforced; but upon this
question the commissioners have acted,
md the court will not presume that they
lcted capricio1sly, but that their action
vas dictated by considerations Of public
good.
For these reasons the peremptory man :
lNmus prayed for will be denied.
WIN. H. WHITMAN, Judge. {