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

Tor the reason that the right OF the plant
. III to the writ must in the last analyst
+. depend upon the character of the satut
referred Ia. If it he conceded that tn
objections urged by the defendant to tn
lIlcgality Of the bonds be untenable, thor
still arises the question whether the dc
fendant can in any event be compelled t.
fund the coupons in question, or whethe
the power conferred upon the commits
soners by SAID act is Il disCretionar,
power which the defendant may or MAJ
not exercise, according as the intercst
OF the county may require.
Section of chapter IS, Laws Of New
Mexico, 1889, entitled AN act to author
ize the funding OF county Indebtedness
and for other purposes, reads rs follows
Section |. The county commissioners
of the respective counties of this territory
are hereby authorized and empowered to
issue coupon bonds Of the said counties
in exchange for their outstanding indcbt.
edness as evidenced by the warrants Of
| bonds OF said counties duly issued
which has now accrued or may accrue M
to the LIST day OF July, 4. u. 1889. said
counties are also authorized and empow-
cred to refund any bonded Indebtedness
! with the interest thereon, where the
/ same can he done under the provisions
/ OF this act, so as to enable such county or
counties to refund to lower rate Of in
terest than is now being paid upon such
bonds, and all bonds 50 exchanged or
sold shall be exchanged and sold at their
par or face value.
The plaintiff claims the right to have
IA LODI = r,
division of the above section, and con
tends that the language Of the act, though
permissive in form, must be construed as
peremptory direction to the commits
sioners to do the act
The case OF the plaintiff has been
argued by his counsel with great ability,
and close research made for authorities
to sustain the position taken by plaintiff,
which is in substance, viz: That where
power is given to public officers by the
use OF language perInissive in, form as in
the act referred to, whenever the public
interests or individual rights call for its
exercise, the language used, though per-
missive in form, is in fact peremptory.
The principle Of law just stated is sound
one, but the difficulty is in applying it to
tllc CuSe III IldI.
A great number of authorities have
been cited by plaintiff to sustain his posi-
ton, but no case has been shown me in
in which the facts were similar, or which
in principle is analogous to the case at
bar. In each one of the cases cited
where the writ was allowed the plaintiff
had an undoubted right to the writ be-
cause he had no other remedy, and to re-
fuse the writ would be to countenance
public injustice to an individual.
In Supervisors VS.. United States, 4th
Wall, 435. A statute of Illinois, where
the case arose, provided, VIZ: "The board
OF supervisors under township organiza-
ton in such counties as may be owing
debts which their current revenue under
existing laws is not sufficient to pay, may,
if deemed advisable, levy special tax to
the same" etc. With this stat
ute in force, the State bank, relator in the
case, recovered judgment against the
county of Rock Island, and subsequently
requested the supervisors OF the county
to collect the requisite amount by taxation,
and to give relatOr an order upon the
county treasurer for payment. They de-
clined to do either. An alternative writ
OF mandamus was issued, which, after
answer by respondents, was followed
by peremptory writ. The court held
that the words in the statute "may, if
deemed advisable" were under the cir
cumstances OF the case mandatory, and
not merely permissive, for the reason that
the relator had right to call for the ex-
ercise OF the power it was the only rene
dy lie had, and that to refuse to exercise
the power would result in failure OF
Justice
The facts and the principle involved in
City of Galena vs., Amy, 9Th Wall, 705,
were similar to those in the case last re-
ferred to, and the court held that the City
of Galena should be compelled by manda-
mus to levy tax to pay the judgment OBJ
tanned against it by Amy.
In People ex. rel. vs.. Supervisors OF
Otsego county, 81 New York, 40l. The
Otsego county bank, relator, had as part of
its capital large sum OF money invested
in bonds of the United States, and for the
assessments OF the years 1863 and 1854 paid
upon such bonds taxes to the amount of
$7,4S2.S0. Subsequently the supreme
courts OF the United States decided that
United States bonds were exempt from
taxation, and thereupon the legislature
OF New York passed an act (chap. 93S,
laws of 1869 entitled, "An act provid-
ing for relief against illegal taxation"
That act provided that the boards of
supervisors are authorized and empowered,
upon the application of any party az
grieved, to hear and determine any claim
of an assessment for taxes made in their
respective counties upon United States
bonds, stocks or securities, any or all of
them which by law are or have been
exempt from taxation, and to repay to
the proper person the amounts collected
or paid upon such assessment. And
wherever such claim shall be audited and
allowed the board OF supervisors shall
levy the amount thereof upon the taxable
property of the county" The Otsego
county bank presented the claim to the
supervisors and asked that it be audited
and allowed, and a tax levied to pay the
same. This the supervisors refused to do.
The court held that these taxes, although
voluntarily paid, were illegally executed,
and that the bank therefore had claim
based upon natural justice and equity,
that the taxes should be refunded, and
that the statue was mandatory upon the
supervisors to audit and pay the claim.
An examination of number of other
cases cited by plaintiff shows that in the
facts and principles of law involved they
are very similar to the cases above re-
ferred to. In all these cases the relief
prayed for was granted, only because to
refuse the relief would leave the relatur
naked, utterly without remedy the owner
of valid subsisting judgment, but with
out remedy to enforce its collection the
possessor Of a legal claim against county,
but without the right to pursue the ordi-
nary legal methods to require the claims
to be audited and paid. 1t is wise and
benefcent principle of the law that when q
party has reached point where he can go