Slike strani
PDF
ePub

PAGE.

Redfern, Daily vs..
Reece, Aylesworth vs.
Reins, Coady vs...
Reins, Wormall vs.
Reynolds, Morgan vs.
Riale vs. Roush.
Robertson vs. Smith..
Rodgers, Carpenter vs..
Rodgers, Fisk vs..
Rodgers, Lincoln vs..

Roush, Riale vs..

474 Territory vs. McClin.
410 Territory vs. McElroy

PAGE.

[blocks in formation]

394

86

359

21

651

168

179

.. 286

[blocks in formation]

90 Territory vs. Whitcomb..
252 Thomas vs. Smith.
217 Thorp vs. Freed.
474 Thorp vs. Woolman

Rumley, Comanche M. Co. vs.... 201 | Tiernan, Febes vs..

Sanders vs. Farwell

Toombs vs. Hornbuckle.. 599 Travis vs. McCormick

Schmith, Loeb vs..

Shontz, Harris vs.
Simonton vs. Kelly
Smith, Robertson vs
Smith, Thomas vs..
Spencer, Grant vs..
Steele, Dahler vs.
Sterns vs. Noteware
Stewart vs. Miller.
Stewart, Taylor vs.
Stokey, McDonald vs
Story vs. Nowlan..
Stuart, Gerber vs.
Sullivan, King vs..
Sullivan, Mochon vs
Sweeney, Lomme vs

[blocks in formation]

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

AT THE

DECEMBER TERM, 1868, HELD IN VIRGINIA CITY.

Present:

HON. HENRY L. WARREN, CHIEF JUSTICE.

HON. HIRAM KNOWLES, ASSOCIATE JUSTICE.

THOMAS, appellant, v. SMITH, Treasurer of Deer Lodge County, respondent.

PRACTICE- mandamus — appeal from order on referee's report. No appeal lies from an order of the district court setting aside the report of a referee upon an application for a writ of mandate.

PRACTICE - mandamus — reference— must be determined by court. The district court cannot refer an application for a writ of mandate, but must grant or deny the same before an appeal can be taken.

VALIDITY of statute relating to county bonds. The act approved November 22, 1867, authorizing county commissioners to call in all outstanding orders against the treasury of their respective counties, and issue bonds in lieu thereof, is valid.

POWER of commissioners in issuing county bonds. The county commissioners of a county cannot require the holders of the evidences of its indebtedness to surrender the same. The act approved November 22, 1867, confers upon county commissioners the power to issue bonds in the place of outstanding orders which have been voluntarily presented for that purpose.

STATUTE relating to payment of county warrants not repealed. The act approved November 19, 1867, entitled "An act defining the duties of county treasurers, and the payment of county warrants," is not repealed by the act relating to county bonds, approved November 22, 1867.

DUTY of county treasurer — power of county commissioners.

The treasurer

must pay, upon county warrants, money in the treasury of the county which is not otherwise appropriated by law. An order forbidding the treasurer to pay such warrants, passed by the county commissioners, is void.

Appeal from the District Court of the Second District, Deer Lodge County.

THOMAS applied to the district court of the second district for a peremptory writ of mandate on April 18, 1868, to compel Smith, the treasurer of Deer Lodge county, to pay a certain warrant. After the answer and replication had been filed the following order was made by the court:

"APRIL TERM, 1868; May 12, 1868. "W. W. Dixon, Esq., an attorney at law, is hereby appointed referee in the application of J. M. Thomas for a writ of mandamus against Addison Smith, treasurer of Deer Lodge county, to report both the facts and the law in the case; to make his report in twenty days.

"May 12, 1868.

"L. P. WILLISTON, Judge."

The referee made his report on May 30, 1868, in favor of Thomas.

On February 22, 1868, the board of county commissioners of Deer Lodge county passed the following order, which is referred to in the opinion of the court:

"It is hereby further ordered by the board of county commissioners that the treasurer shall not pay any moneys out of the county treasury, for the purpose of paying off any unpaid county warrants that may have been issued prior to the first day of February, 1868; neither shall he take in payment of taxes or licenses any warrant that may have been issued previous to the date above named.

"February 22, 1868.

"G. J. LUCAS,

"Chairman Board County Commissioners."

At the June term, 1868, the court, WILLISTON, J., set aside the report of the referee, and Thomas appealed. The facts are fully stated in the opinion.

WORD & SPRATT and L. McMURTRY, for appellant.

Appellant presented his warrant to the treasurer of Deer Lodge county for payment on May 9, 1866, and April 17, 1868. On the last day the treasurer had moneys in his hands sufficient to pay appellant's warrant and refused to pay it. Appellant presented his warrant under section 8, page 518, act 1865, and registered it under sections 2 and 3 of the act of 1867, page 59, approved November 19, 1867.

The first question is, the proper construction of the act approved November 22, 1867, page 234, providing for the bonding of county warrants. Appellant contends that this act only authorizes the county commissioners to call in the outstanding indebtedness, and to fund or bond so much of said indebtedness as may be presented to the treasurer of the county for that purpose by the holders thereof. The holders of the warrants cannot be compelled to bond or fund them. The county commissioners cannot prohibit the treasurer from paying any warrants. This act is not repugnant to the acts of February 9, 1865, and November 19, 1867, cited above. These acts relating to the same subjectmatter must be construed together.

Repeals by implication are not favored by law. Sedg. Stat. and Const. Law, 127 et seq.; 5 Abb. N. Y. Dig. 93, $ 199, 200, 201 and 202.

If these acts can subsist together the courts will uphold the prior law. Sedg. Stat. and Const. Law, 127 et seq., 247; Merrill v. Gorham, 6 Cal. 41.

The intention of the legislature is to be searched for in the words of the statute. Sedg. Stat. and Const. Law, 243 et seq.; 5 Abb. N. Y. Dig. 79, § 31.

The law under which appellant presented his warrant formed part of the contract between him and the county. His right to receive payment became vested when he complied with the law. The legislature cannot by any subse

« PrejšnjaNaprej »