Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-01-03

I
The first part of section IS OF the ella
ter Is this clause; Nv hich funds shall ~,
be diverted nor drawn upon for any 9th,
purpose" than 10 redeem the bonds f.
which Il was provided, and our prop,
sifion also Is that II is not only 0 dive
sion, but IL is a violation Of the lettt
Of the law. Tho city commands ID
treasurer TO violate the letter Of the Law
Section So says, THAT the city treasure
shall honor no drafts on said funds el
cept to pay interest upon or redeem sal
bonds for which it was provided. Thus
your honor, will notice that the part o
this section which touches the duty o
the city treasurer Is mandatory and i'm
pcratiyc, and negative words are used
while the power 70 give the city counci
70 invest Is simply permlssive. The Law
is mandatory and imperative upon tn
treasurer that he shall not honor such
draft, and | shy that we might fairly
Stop upon that single proposition and sal
that there ~ no use TO consume the tim,
Of the court in arguing the question. if
| attempting 10 interpret the meaning OF
the legislature In this latter clause OF
section 81; TINT 1t is enough for the pur'
7 pose Of this mandamus suit TO say that
I there Is law which prohibits the de.
fandant from hnnorlng such drafts: and
/ our own courts say in unqualified and
( absolute terms that you cannot by man
! damus compel an officer 10 disObey even
| q directory law. j cite your honor to the
case of Horton vs.. Pace, . Texas. page
81, wherein u Is held that a mandamus
cannot be issued TO compel a public ofli-
Ger TO do an act which Is not clearly
prescribed by law. In the case which
have just cited the law was simply di.
rectory, while IN the case before your
honor the law IL mandatory. and is re-
iniOrced in section A by making II
highly penal offence, and subiccting him
10 prosecution for mnlfesance and re-
moval from office aud disqualification
from ever thereafter holding Office, If h,
should disobcy that law.
In the case Of Puckott against White,
- Texas, page 500, the court says,
There can be no better settled principle
by tho oft repeated decisions of This
court than that mandamus will not lie
10 compel public officer TO perform an
net which Is not clearly prescribed and
cnioInod by law"
In this connection I desire 10 state 20
your honor tbs proposition; that where a
law is Of doubtful validity tue court viii
nor lssup lnnndamus, dnd on tina prOpO-
sulon We desire to submit Merrill on
M0ndnmus, see ~, this writ will not lio
unless the act desired tx Of absolute obi
cation on the part Of the person sought to
be cOcrced. The relatOr must show not
only clear legal right 70 have the thing
done but also by the person sought TO
be coorced in the manner sought. and that |
he eii has II in his power Of performing |
the duty required. The action sought |
must not only be In tho respondents |
power 70 do, but II must bc his duty 10 |
lo it, The duty must be plain and posi-.
IN officer will not be- required nor com.
1cNcd by maudnmus tn do an net which |
would involve him In doubtful litigation, |
ma ms act would involve the defendant
n doubtful litigation.
Morrill, on Nl1nilmus. soc. 81. "the
WRIT VIII be refused when the perform
'Hicer M litigation, the result Of which
I IN doubt or whom litigation Is REQUIRED
% settle the m1ttrr" Is not litigatipu
eqtirol 10 settle this muttcr7
also cite 100 Illinois, page 59T. the
,eople against johnson. when by roason
Il complication Of cNtunpous circum-
iahocs not specifically provided for by
nc statute, q well founded doubt arises
iiher as 20 the right of the appellant To-
rteiyo he fund or the duty Of The officer
. pay u out, mandamus Is not the propcr
0mpdy." F''FS'
That is the point We make about fine
wv OF mnnd1nms here II the city
iFI IS u" Sclllc u beyond prendventurn.
y b'nir y Co. bring their action nuainsi
bc litigntpd. Inn C,r TX, ,,,,,' ""H l.l
$ pnrcmpinry ,nat,,is,,,,,, wv eourt 10 issue
w made In mid nStiii,,,' upon .Ie SNOW
int thcy vvonii Ia nctir,,i ; scel3 no inr
lse. tn s,,, ,i,, i,a.t.etit ln youthful
/ rnll votir bop6r's ot,on,i,, 49,.
( The ScrryvnSn's S ,.i,,i, 10 ,ne nase
,n. 40 Teyns h5i WYNN, t,oi'n We. sen
nil Of nnndnu,rs Js ,,, 80 W lv'ntHI ny
here the Ianr ,n III, "l9Wcd W cases
leans of redrcs,. nor IN , U,nvr nu.luale
, perform n dTty ci,,,1,. Xxx nas v,l,1 except
Ivolving no dienr,tio,, ~" ~ HN'
Tho pefiiion sborii '"E my
,rc be- very dislinct an ,ro," ,yNe,e
atomcnt OF cirrnp,et,n"os pt'o,5t IN tur
mt tho pnrly Ia cntI,lnJ ~, n9N 10 snow
,mcdy. Onion Va Tot,i \" nus psgr,ullar
rcmr court. In AZ Tr,E,g ,H' ,sse-
wing VS.. Cohen. snv4. ,srh, tttrt, -,
10 nnpcllop hprN mi ID, ,tb XIX !'ct tuit
PES not cntitlc him la tint If Tn,r,t,,,,,,F
Is well settled fhnt ,vbiic 49,, ' .l.l
sue. only when thr ni-sri,yc1 n,,,, nuN
> other adequate remedy Nm, c,,E,., r,s
OPPOSITION Is not true. NM Vic, I KY
D. N'hcr 1dpduatp ref,, 'il,'i " wv n' mas
the wrlf M fn5p,t,,,,nsS u' may resort :
fairly nrrnn.i bcr. a., AhH 10 may ,
we moi insisted nn lu'9k, though |
,s. that ia snnIc eyi iHv W. tl'ed agthnri-
mary aattcr,,Itb ~, t.,I I Ills ls a uis're'
ere Il a LOCAL Jpt, ,ur, N''llSe !
rather he /. corbidIn" upon NM
inrs forbidden nv Sv 1 " 'nrN,h
intel directly nj him '''u .le INV Is
l,l honor no drafts N, lon
her purnoso than tn rrlcn,,, we any
ouch I have moi insistoj nn VIZ ~. i
ioT b. tu ,st't.N w TT IN my d