Southwest-sentinel. [volume] (Silver City, N.M.) 1883-189?, 1893-09-12

2 The mandamus case which was
brought BY Sheriff laird to compel the
board OF County commissioners TO issue
warrants 70 him ia payment Tor his ser
vices has been decided by Judge Fall in
favor Of tue commissioner. The follow
ing is the full text Of the decisions
IN the District Court Of the Third Judicial Die
trict Of the Territory OF New Mexico, with
IN and for the County Of Grant, in Chancery {;
Tho Territory Of New Mezico,1
FIX. Rel. Andrew b. Laird NC;
Board Of County Commission.
eTa Of Grant County.
OPINION or THE COURT.
The petitioner, Andrew B. Laird,
sheriff Of Grant county, AYERS that the
county Of Grant became and is indebt-
ed to him for services, ETC., as such
sheriff, from the LIST day Of February,
1893, to the 18th day OF July, 1898, in
the sum OF two Thousand nine hundred
and ninety-two and 92-1OO dollars 1,
that the accounts for such services
have been duly allowed aud audited
and approved by said board in said
amount; that the board Of county
commissioners refuse to issue war.
rants for said amounts so due him /;
that on the 10th day Of January, 1893,
the said board Of commissioners made
an order transferring FIVE thousand
dollars out OF the current expense
fund Of said county for the year 1903
to the interest bond fund. and petit
toner asks that said illegal order be
rescinded aud the county commission
ers ordered to issue to him warrants
for tho amount due, i.e., 80, OO2 90.
In reply to the alternative writ re-
spondents admit the making Of the
order on January 10th, but deny that
there is any money whatsoever in the
expense fund out of which said ac-
counts may be paid, except about six
hundred dollars paid Ia since the au-
ditiug Of petitioners accounts, and
further deny that there is any money
in any other fund whatsoever except
about six hundred dollars IN the inter
est fund, collected during the present
year.
They allege that of the FIVE thousand
dollars transferred on January 10th
all has been paid u by the treasur
er for interest on outstanding indebt.
edness, and that said sum was SC
transferred to repay mount taken out
of the interest fund by their predcces
sors, and transferred enormously or as
a loan to the current expense fund
and that the action Of January 10th il
so repaying the interest fund wat
taken by and with the advice of j. A
Ancheta, district attorney, which Mr.
Ancheta denies.
It is urged that the general rule
that it is a sufficient answer to show
that no money is available, docs no
apply here, as the action of the boarC
in transferring the account from thu
current expense to the interest funC
was without authority and illegal.
Respondents answer that neverthe
less the money is gone, and, If .erTone
Gus, the action was taken in goot
faith, and that they are prohibited b.
section 2, chapter 6S, laws of 1885
from issuing warrants when there i
no money available to pay the same.
Petitioner contends that the actioI
was illegal, and in contemplation 0
law the money is still in the curren
expense fund.
The authorities arc divided on tn
main question at issue, i.e., as t
whether the peremptory writ shoul
issue when the return to the alternI
tive writ shows that there Is n
fund ont of which the warrant can b
: paid, some holding that It is suficien
even although the fund had been err'
neOusly transferred or paid OF
(High Extra Legal Remedies, Bates v
Porter, 10 Pacific; Preir VS.. Refs, {
Pacific, ete), while others hold tbs
where the amount which could {
!. should have been used in the paymer
of the claim in question has been e
roneously paid out. In contemplate
of law the fund is still available an
its exhaustion no defense (Morrill Q
Mandamus), and the strongest case r
: lied on to support this contention
People ct rel Comptroller n N. Y. A
None OF these cases are on all foul
with that at bar, as ! the majority th
question is of ultimate payment, viii
here the relief sought is a rescindin
Of the illegal order and mandate con
pelling the issuing Of a warrant upo
Z the treasurer.
In the N. Y. case, the money was 0
hand when the voucher or warraI
! was issued, and afterward paid out
another and the writ issued.
In the present Ease the order WI
made before the account was presen
Q ed, the money transferred before til
services were rendered.
The sheriff, petitioner, had no claiI
upon any fund until the services ha
been rendered, the account presente'
1t then became the duty OF the boar
I to audit and allow or disallow the a
/ count, or any part Of it, aud up to th
/ point they were vested with a discr
tionary power. Having audited an
, allowed the accounts, as a minister
body, they were to issue warrant
PROVIDED there was money wal
which to pay same.
3 Now, how were they to ascertaI