| Show COURT INIES WRIT RIT UN aN mOWS FU N D se Brought Against Com Com- of Utah County i ox w Compel Appropriation Jost ost st on Point of Law I peremptory writ of mandate was cd edby by the supreme court Satur- Satur Ithe the court being divided directing directing- board of commissioners of Utah ity t to provide annual funds not eding in any anYone one year to for the partial support of wed Hed mothers who are dependent heir own efforts for the grof e of their children opinion in the case was by Jus- Jus Samuel R R. Thurman the dissent dissent- view view lew w b by Chief Justice E. E E. E Corf- Corf ap Id Le ease pase ase is that of George A. A Start- Start I the board of commissioners lt tah h county for a writ of man- man and was brought under the pro- pro ns nS' nS of section Compiled Complied Laws t tah h 1917 In his complaint set forth there here were residing in Utah coun- coun wea no mothers dependent upon upon wea no mothers dependent upon upon yn efforts for the maintenance I children and that the commis- commis refused and neglected to pro- pro I funds to be expended as partial ort as provided by law of commissioners filed a aral araP aral ral raP ral demurrer and also demurred everal veral grounds including that the had no legal capacity to sue that his complaint was indefinite n for the reason that it I ot be determined whether he hea a party beneficially in interested in Without waiving their irrer r the the- commissioners at the thelme i filed an answer to the comIt com com- It in which they alleged that they provided funds for the care of indigent and dependent and fur- fur Ui that t the county has no funds from hIa ha fund could legally be set aside h hg purpose demanded IRMAN WRITES OPINION he he opinion of the court Justice Justic man says It seems to the writer wholly 3 unnecessary to multiply s sun disposing n-disposing of the question first firste e ej stated The language of the I It ite quoted near the beginning of e e case Is plain un unreal tin un- real local and unambiguous It needs 1 to determine the fact Ki a mandatory duty is imposed Hie he county commissioners to pros pro- pro s such uch ch funds as may be reasonably to carry out the purposes of l law w in accordance with its ex- ex lerms erms and provisions This behe be- be 4 he case it is a positive duty of to provide the funds out ut equivocation cation or evasion It Itie jie pe ie the commissioners have the theon Uon on to determine the amount sary to be provided but it is not discretion it is a dis- dis on that may be abused and when- when Ruse is properly charged the don may be bo reviewed even in a lamus lathus proceeding There can be doubt that mandamus in ini i instant St nt c case se Is a proper remedy rIt the only one that is plain l and adequate Vs Lis ls contended by defendants that ig Ig provided funds for the relief of and dependent poor of the try including widowed mothers dent ident upon their own efforts to toia f tain ln ia their children there is no net nety ne- ne t ty tv for a strict compliance with upon which this proceeding In assuming such defendants make the mistake of to substitute their judgIl judg- judg Il r that of the legislature It never nver intended by the legislature the mothers of future citizens of oft t tale tte le should be regarded as paup- paup In the pauper class Con- Con we feel compelled to hold for the indigent and ident dent poor of Utah county is not provision for widowed mothers il nt upon their own efforts for of their children as is by the statutes of the theOF OF k OF FUNDS NO EXCUSE ja S further contended as matter of ofIS ofis IS ise that there are no funds at rTE fout f- f out of which provision can be bely ly made for the purpose de del de l led din in this proceeding Ordinarily is a complete answer I 1 application for a writ of man man- an- an Continued on page 12 E COURT RT I Continued from page I I. I date that which Is Impossible cannot justly be required But assuming there are areno no funds at the present available available available avail avail- able for the purpose in question It does riot not necessarily follow that such condition condition condition con con- must trust continue indefinitely Utah county Is a quasi public corporation a legal subdivision of ot t the tee state with ample power to assess and collect taxes for lor all legitimate purposes authorized b bythe the laws of ot the state It Itis It-is is quite true that taxes must be bo assessed levied and tand collected at the time and andin andin andin in the manner provided by law Defendants Defendants Defendants De De- contend that It is now too toolate toolate toolate late to assess and collect additional taxes for tor the year 1921 They also In Insist insist insist in- in that It Is too early to compel the assessment and collection of ot taxes for tor forthe forthe the year 1922 It is also suggested that no person has the right to anticipate anticipate anticipate antici antici- pate that defendant will refuse tomake to tomake tomake make the provision that may be re required required re re- in 1922 and that until de defendants defendants defendants de- de do refuse there is no ground for lor action against them Tho contention to say say the least Is 1 if n not t disingenuous If It is too late to assess and collect taxes for 1921 because the time has past within which It can lawfully be done and too early for tor 1922 because the time when Jt it can be 00 done has not yet arrived it itIs itIs its Is Is s easy to see In a 8 meritorious case that grave crave Injustice might be done In fact tact It might happen if the rule contended for were rigidly enforced t that at relief in a case of ot this kind could never be obtained It is contended onte ded by defendants that thai plaintiff has no legal capacity to sue that he Is not a 11 party beneficially interested in interested interested in- in as provided in compiled laws Utah 1917 section That section specifically provides that the writ writt of ot mandate must Issue upon affidavit on th the application of ot the early beneficially Interested If the statute had stated that the that the writ might Issue upon the ap application application ap- ap n of at a or a taxpayer there would b no question but that plaintiff would be qualified to make the application but such Is not the tho lan lari- language guage of ot the statute The party must be beneficially interested and the controlling controlling con con- I tr trolling question is do the words beneficially beneficially beneficially bene Interested have any special or peculiar significance or may they be applied to any taxpayer or person re residing residing residing re- re siding within the state who has merely a 8 common Interest with other residents residents residents resi resi- dents in seeing that the laws are enforced en enforced enforced en- en forced STATE LAW VIEWED To hold In the present case that thai plaintiff being a resident taxpayer of or Utah county Is all th that t Is necessary to qualify quality him to prosecute the action is is In our view of the law to disregard and set at naught the statute which provides that the application should I Ibea be boa bea a party beneficially Interested In the I proceeding We Ve are firm In our conviction that the law sought by plaintiff to be en enforced enforced enforced en- en forced Is a 8 humane wholesome beneficent beneficent beneficent bene bene- statute and should be conscientiously conscientiously and faithfully enforced In every county In the state Nevertheless it becomes our duty to deny the writ prayed for In the complaint The peremptory peremptory peremptory per per- writ Is t therefore denied Each party to pa pay his own costs Chief Chiet Justice E. E E. E Corfman Cortman dissents dissents dissents dis dis- saying To deny mandamus in the present case is to den deny a citizen the right to the compelling process of the courts where the defendants are not only found clearly derelict In their official duties but it also plaintiff from seeking redress In the courts when his individual rights as a citizen and taxpayer er are being denied him Plaintiffs Plaintiff's rights as a citizen may differ differ dif dit- fer from those directly benefited by the fund which he here seeks to have the defendants In their official l capacity create but nevertheless the legislature legislature legislature legisla legisla- ture and not the courts should be left to determine the degree In which he must be beneficially Interested to en entitle entitle entitle en- en title him to the compelling process for which he applies Upon that subject the legislature wisely I think has not spoken I am firmly finnly convinced that t pres- pres present under the admitted facts of ot the present prest pres pres- ent case mandamus should tie lie t |
