The Bemidji daily pioneer. [volume] (Bemidji, Minn.) 1904-1971, 1909-09-20
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proportionate share of the taxes of the
parent county. The statute directs the
levy. Nor does any liability attach to
pay the money in other way than that
pointed out
1T seems to me that this general
statement of the complaint and the con-
| struction of the statute referred to by our
supreme court are sufficient to show that
this is not the proper action or remedy
and that the demurrer should be sus-
tanned on this ground. 1t was, and IS,
the clear and unquestionable duty of the
county commissioners of Clearwater
county to make provisions for the pay
ment of it's share of the bonded and float
Indebtedness by levy and taxation in the
same manner as the county commits
sioners of the parent county should
have DONE If the county commissioners
OF Clearwater county have failed and
neglected to perform the duty thus i'm
posed upon them, the true, and it would
seem the only, remedy is by mandamus
to compel them to do their official duty.
1.-The law does not contemplate the
satisfaction in any other manner than by
an assessment upon the taxable property
of the county, hence the failure to do so
authorized the mandate of the court to
compel obedience to the law. Mandamus
is the proper remedy County Commits
sioners of Polk County VS.. Demann, supra,
and cases cited.
I'm the Wisconsin case, Waupaca
County VS.. Town of Matteson, reported 4S
N. w., 213, precisely the same legal ques-
ton is involved, and the court says:
"'This is an appeal from an order over
ruling the demurrer to the complaint.
The action cannot be maintained.
If a judgment could be rendered
| against the town, the county would be no
nearer the end than now; for the town
! clerk must insert the judgment in the
tax-roll for collection, and he might refuse
as he has done here. Both duties are
alike. What, then, would be the remedy?
Could the town again be sued in an action
on the judgment? This method might be
repeated, and without end. Mandamus
against the town clerk to compel him to
! discharge this clear legal duty is the only
adequate remedy in either case. This is
too plain for argument. The end can
never be reached by actions against the
town. The town is not liable for the
neglect or refusal of it's clerk to perform
such an official duty. This is we'll
established principle of law. The
case comes within the very Office of the
writ of mandamus to enforce a specific
legal right, or to compel the performance
of positive legal duty, where there is no
other specific legal remedy
1.-The general doctrine applicable to this
class of cases is, that when a specific
duty is imposed by law upon a municipal
corporation of levying a particular tax for
some purpose of public utility and the
duty is so plain and imperative as to
admit of no element of discretion in it's
exercise mandamus is the appropriate
and, indeed, the only adequate remedy
for refusal by the corporate authorities
to perform this duty High Elk. Legal
Rem. Sec. 500 and cases cited.
I'm The People VS.. The Supervisors of
the County of Columbia, 10 Wend. 1853,
which is cited approvingly in the County
Commissioners of Polk County VS.. Demann,
supra, the court says: The statute directs
the supervisors to levy and collect the
amount of deficiency; it is duty imposed
upon those officers which should be per-
formed by them, but for their neglect the
county in its corporate capacity should
not be punished; nor does any liability
attach to the county to pay the money
in other way than that pointed out in
the statute
Upon proper petition filed showing the
requisite facts writ of mandamus should
issue directing the county commissioners
of Clearwater county to levy the required
tax in the same manner as the county
commissioners of the parent county should
have DONE
But, assuming for the purpose of argu-
ment that my view as above set forth
is erroneous and that mandamus is not
the proper, Or at least not the exclusive
remedy, and that an action for contribu-
ton, such as the one at bar is admitted
by plaintiff to be, would properly lie, still,
it seems to me, the demurrer must be
sustained for the reason that the facts
stated do not constitute cause for action.
my principal reason for this view is
that there is no allegation as to the
application upon the indebtedness of the
$7O.756.75, the appraised value of the
county buildings. We can properly
assume that the amount in the sinking
fund, $9,469.83, was applied upon the
bonded indebtedness. But where was the
$7O,756.75 applied? Was it applied to
the payment of the floating Indebtedness
which was represented by outstanding
warrants and which was the only por-
ton of the total indebtedness which was
actually due and payable at the time
that the appraisal was made and the
amount ascertained which shall be
deducted from the amount of said bonded
and floating indebtedness?' Such applica-
ton would be in accord with the genera
rule that payments, in the absence of
direction or express agreement, must first
/ L. IL