Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1889-05-18
"iJuLY lSSUED.'
Tbtso are the Words that Stand Be-
tween the County Board and
the Bond Holders,
The RGfuadng Act Moi Mandatory Com
miSsOners Vested with Judi,
Cial Discretion.

Fe county and to the people Of the terri
tory in general
Territory cx rel. ". y. Coler VS. BoarC
OF County Commissioners OF Santa Fl
county.
This is an application for a Peremporl
writ Of mandamus to compel the commls
sioners Ol Santa Fc county to fund, under
the act Of the legislative assembly ap
proved February ~, 1850, the coupons
which were issued With certain bonds Of
Santa Fe county in the wear 1888, TO ajd
in the construction Of the New Mexico x
Soouthcrn Pacific railroad in said county.
BY agreement OF the counsel but one
branch OF the legal question involved III
the controversy has been argued. Name
", whether or not the act OFT the legislative
assembly referred to makes it mandatory
upon the commissioners to issue coupon
bonds in exchange Tor their outstanding
Indebtedness, or simply cOnters poWer
and authority upon them to do so ii IN
their discretion they deem it advisable 50
to do.
Many authorities have been cited by
the counsel for relator to show that this
lllUtL3ll iltI I III ltN
must be construed as Il peremptory dlrec-
ton to the commissioners to do the act.
do not think the authorities cited are
applicable to this case The principle to
be dedured from the authorities cited is,
that where power is given to public Ott-
GERS lay tho use of language permissiye in
form, as in the act before me, when
ever the public interests or individual
rights call for It's cXer Use, the language
used, though permissiyc in form, is in fact
peremptory, that this power is
placed with the depositary to meet the
demands OF right and TO prevent failure
of Justice. 1t is given as remedy to those
entitled to invoke its aid and who would
otherwise be remediless.
In the cases, Supervisors V. United
States, 4th Wall, 49,, and City of Galena
Y. Army, 9Th WALL, 705, which are the cases
chiefly relied upon by the rclator in this
case. the REALTORS in those cases had re-
covered judgments and were endeayoring
to collect the same. In the case IN 4th
Wall. statute OF Illinois, where the
case arose, provided, viz the board OF
supervisors under township organization
in such counties as may be owing debts
which their current revenue under exist
ing laws is not sufficient to pay, may II
deemed advisable levy special tax to
pay the same" etc, with tins
statute in force the state bank, relator in
the case, recovered Judgment against
the county of Rock Island, and subse-
quently requested the supervisors OF the
county to collect the requisite amount by
taxation, and to give reator an order
upon the county treasurer for payment.
They declined to do either. An altcrna-
tive writ OF mnndamus was issued which,
after answer by respondents, was followed
by peremptory writ. The court held that
the words in the statute may II deemed
advisable" were under the circumstances
of that case mandatory, and not merely
permissive, for the reason that the reIatoT
had right to call for the exercise OF the
power, it was the only remedy he had,
and that to refuse to exercise the power
would result in failure OF justice. The
case in the 9th Wallace is so similar to the
one Just referred to in the questions OF
fact and law raised in the case that it is
unnecessary to refer to 1t lUrihCr
am unable to see that the interests of
Santa Fe county demand dat the coupons
held by the relator shall lie funded INTO
interest bearing bonds. Tho obligation
imposed upon the county Is to pay these
coupons as they from time to time fall
due, and to pay the bonds from which
the coupons are taken rs they mature.
This relator has the right TO invoke the
aid of the court to enforce strict COM
pliance with this obligation. But no con-
sideration OF public faith, justice, or OF in
dividual right calls for the exercise OF the
power conferred upon the county COM
missiOners by the legislative assembly.
The relator may demand payment OF
the county OF Santa Ee OF its obligation to
him as evidenced by the coupons i'll his
possession, but he NAV not demand that
such evidences OF indebtedness shall be
taken up and merged in different form
and a new Obligation be thereby created.
a statute permissye in form is never
per Sc mandatory, and can only be con-
strued to be mandatory because Of some
pre-existing right which entities the
public, or an individual to demand the
exercise of the power. No strained con-
struction should be placed upon permis-
sive language used by the legislative as
semblv to declare it mandatory. The law
makers will be presumed to have used
permissive words in their ordinary mean
ing, unless there be 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 I'M
der which it is to be done, something in
the title OF the persons Tor whose benefit
the power is to be exercised which may
couple the power with duty, and thus
render mandatory words which are per-
missive in form.
The first section OF the act OF the legis-
lative assembly which the rclator con-
tends is mandatory upon the county com
missloners reads as follows, VIZ;
"Section Tile county commissioners
OF the respective counties Of this territory
are hereby authorized and empowered to
issue coupon bonds of said counties in
exchange fOr their outstanding Indebted
ness, AZ evidenced by the warrants or
bonds OF said COUNTIES duly issued, which
has now accrued or may accrue up to the
LIST day OF July, 4. d. 1889; said counties
are ilSO hulnOTlLct anu tlllpONtlt W IT.
fund any bonded Indebtedness, with the
interest thereon, when the same can be
done under the provisions of this act, 50
as to enable such county or counties to
refund at lower rate Of interest than is
now being paid upon such bonds, and all
bonds so exchanged or sold shall be eX-
changed or sold at their par Or face value. -
1t is the first subdivision Of the section
just quoted that relator claims is manda-
tory upon the commissioners to take up
the coupons held by him and to issue to
him coupons IN exchange therefor.
The counsel on both sides seem tohave
lost sight of the language OF this section
of the act, which, leaving out all other
considerations, leads me imesistibly to the
conclusion that the power given to the