Graham guardian., 1905-11-24

the te~ itoarial board to make the
raises had been gone over he
would confne his argument chiefly
TO the following: "Mandamus will
not be awarded to compel county
officers to do any act which they
are not authorized or required to
do by the laws of the territory
The Office of mandamus is not to
create new duties but to compel
the discharge of those already ex'
isting and the writ only lies where
there is a plain dereliction Of a
statutory duty"
"In this case,' said Mr.. Ellin-
wood, "there is no statute COM
pelling the county boards to do
what the territorial board desired
done. The relation between the
territorial board and the county
boards and the authority of the
former over the latter, SAID Mr.,
Ellinwood, is set forth in the fol
lowing statute: '0n or before the
fourth Monday 10 August in each
year, the territorial auditor shall
transmit to the board OF super.
visors of each county statement
of the changes, if any, which have
been made in the assessment by
the territorial board of equaliza-
ton and the rate of taxes which is
to be levied and collected within
said county for territorial pur-
poses, etc. This" said Mr.. Ellin
wood, ais the only duty required
OF the county boards by the statute.
They are not compelled to take
any action with reference to enter
ing up the changes made by the
territorial board. So," said be,
"there is no law or statute giving
authority or imposing the duty on
the board of supervisors Of Yav
apai county and the clerk thereof
to add to and carry out upon the
assessment roll of said county the
increased valuations and changes
made in said assessment by the
territorial board of equalization.
"There is" said Mr.. Ellinwood,
"a defect in the law defining the
duties of the county boards after
receiving the statement from the
territorial auditor. casus omissus,
a jumping off place. The district
attorney quoted from Merrill on
mandamus: "The court cannot
order an officer to do an act which
without the. order of the court
would not be his legal duty, an act
beyond the duties enjoined upon
him by law as pertaining to his
Office or position, an act not author.
lied by law. Since the writ only
issues TO enforce the law as it
stands it will not be used to en-
force casus omissus in the law"
Mr.. Ellinwood quoted copiously
from the American and English
Encyclopedias, from California and
Colorado reports and from Justice
Sloan in the Bravin case from
Tombstone. He further cited the
following opinion from Justice
White of the United States SUI
preme court IN the case of the
United States VS.. Lamont: "More.
over the obligation must te both
peremptory and plainly defined.
The law must not only authorize
the act but it must require the act
TO be done. A mandamus will
not lie against the secretary of the
treasury unless the law requires
nim TO do what he is asked in the
petition TO be made to do.
Another suggestion made by Mr..
Ellinwood was that at the time of
he beginning of the mandamus
proceedings the duplicate tax roll
If the county of Yavapai had
passed by law beyond the control |
# the county board and was in
he possession of the treasurer and |
ak collector. He was the person
gainst whom the mandamus pro-
eedings should have been begun
t against anybody.
Mr.. Ellinwood spoke briefly on
proposition that the territorial
oard had exceeded its authority
n making the raises and he was
ollowed by District Attorney
iawlins of Graham county whose
was that the territorial
oard had no authority to increase
be valuations which had been
ent to it, it being presumed that
he proper valuation had been
lade by the assessing powers of
ne county. Mr.. Rawlins further
aid that the increase was un-
ecessary, a fact shown by the
board having already
xed the rate of taxation for terri
'rial purposes on a basis of val
alton of S40,000,O00. Why then
nd it added s9,OO0,O0O more to
'e territorial valuation?
Col. Herring closed the argu.
ent against the territory in
'ief address IN which he said that
e territorial board must have
zen impressed with its want of
lthority to enforce the changes it
I'd made. The statement of the
rritorial auditor to the county
,nnIn Ia nniL IA 80 -.