The Bemidji daily pioneer. [volume] (Bemidji, Minn.) 1904-1971, 1908-12-28

I.yedI 1SO1, there was lHCluuSu ~
the annual tax levy of said county
two mills on the dollar of the tax
able valuation of said county, viz
$6,042,754, amounting to $12,085.51
for general road and bridge fund
of which about ffty-fve per cent
had been collected. That the road
and bridge fund of said county,
which was created long prior to
the passage of said act, is at the
present time overdrawn to the
amount of $24,345.3O and that the
taxable valuation of said county fo1
the purposes of the tax levy for the
year 1908 is $6,368,054.
The eal-inquiry then is, can the
Board of County Commissioners be
compelled, by writ of mandamus, to
appropriate funds for the purpose
named. when they have no fund for
that particular purpose, and the re-
turn shows that they have no funds
on hand out of which payment can
be made?
The return of the defendants
herein show that they have no funds
on hand out of which payment can
be made, such return is uncon-
tradicted and must be taken as con-
elusive for present purposes.
High on Extraordinary Legal
Remedies (3rd Ed.) Sec. $50, lays
down the rule that: 1T is always a
sufficient objection to the exercise of
the jurisdiction by mandamus that
the writ, if granted, would prove un-
availing" This is also the rule that
pertains in this state. -
state vs. Secrest. 80 MINI. 3s1:
state VS.. Archibald. 43 MINI. 32s.
And whenever it is apparent to
the Court that the object sought is
impossible of attainment, either
through want of power on the part
of the persons against whom the
extraordinary Jurisdiction of the
court is invoked, or for other suffic-
lent causes, so that the granting of
the writ must necessarily be fruitless,
the court will refuse to interfere.
"(Htgh Extr. Rem, s14 and cases cited3
SO if it is apparent that the
writ, if granted, can not be enforced
by the court, relief will be with
held, since the courts are averse to
exercising their extraordinary juris-
diction in cases where their author
ity can not be indicated by the en-.
forcement of process. Id. Nor will
mandamus be allowed unless the act
or duty whose enforcement is sought
is legally possible at the time, and it
| is therefore a sufficient return to
the alternative writ that the re.
spondent has no power to do the
act required. Id.
Would the writ in this case, il
issued be unavailing and fruitless!
The text books and adjudicated
cases uniformly hold that a public
body will not be required to do ar
act when it is impossible through
want of funds.
"26 Oyc. 1853. and cases cited:
! Benton Harbor VS.. St. Joseph s. B. H. s. R
Co.. &c. L. R. A. 245: (Mich.)
High Extr. Rem. 1858: and see note to RAY
VS.. Wilson. II L. r. A. rs. at p. 779.
In people VS.. Early, ga N. Y. S.
$40, it was held that a highway
commissioner could not be compelled
to incur expenses in repairing {
bridge where there were no fund:
available for such purpose. And IL
State VS.. City Council of New Or
leans, 116 La. 81, Al So. lis, it wa:
held that where the taxing power O.
the city has been exhausted ane
it's estimated revenues are not more
than sufficient to meet the statutory
necessary and usual expenses, man
damus will not lie to compel tn
appropriation in advance of any sur
plus which may result.
In this case it is undisputed tina
since the passage and approval o
Oh. 423, C. L. 1907, the county o
Beltrami has had no available none,
or funds out of which to create tn
General Road and Bridge Fund
provided for. in that law; that it di'
have, prior to the passage of SAID &C
fund for general road and bridg
purposes which said fund was over
drawn to the extent of $24,346.3'
and that the taxing power of tn