Opinion
Argued April 4, 1876
Decided April 11, 1876
Amasa J. Parker for the appellant. Jacob I. Werner for the respondents.
The relator seeks, by writ of mandamus, to compel the payment of the interest upon two bonds purporting to be issued by the board of supervisors of the county of Greene, in pursuance of chapter 215 of the Laws of 1869, which authorizes the board of supervisors of said county, if in their discretion they should see fit to do so, to issue the bonds of said county to any banks therein which had paid taxes, during the years 1863 and 1864, upon any portion of their capital stock invested in securities of the United States, exempt by law from taxation.
The principles which govern the issuing of a writ of mandamus to compel the performance of an act which the law requires, are quite well established, and it is settled that where a remedy of this character is invoked there must be a clear and unquestioned legal right. ( People v. Hawkins, 46 N.Y., 9; Northrup v. The Town of Pittsfield, 2 N.Y.S.C., 111; People v. Croton Board, 49 Barb., 264; People v. Board of Apportionment, 3 Hun, 11; People v. Green, 5 N.Y.S.C., 376.)
The authorities cited and others stated in the cases referred to, uphold the doctrine that where the claim is disputed and its validity controverted, then the writ of mandamus cannot be invoked. The demand of the relator in the case at bar falls short of establishing a right to a peremptory mandamus, within the rule laid down, as an abstract proposition. Upon the papers a fair subject for legal controversy is presented, which should not be disposed of summarily, but after a full opportunity has been offered to try and determine the validity of the claim which has been interposed.
The bonds in question are issued under a special act of the legislature of the State, and unless the provisions of that act are faithfully and substantially pursued, it is questionable whether they have any legal validity and effect. They are assailed by the affidavits in opposition to the motion on various grounds; and, among others, it is alleged that the bonds authorized by the act were issued, without sanction of law, for an amount exceeding the sum which the legislature provided for; that they embraced taxes unpaid in the year 1865, and interest upon taxes which the statute does not include, and that the resolutions which sanctioned the bonds were not passed by a majority of the members of the board of supervisors.
These objections are sufficiently stated, so as to controvert many of the material facts upon which the relator relies, and present issues which should be tried in the ordinary course of legal procedure. Grave questions of this character cannot well be disposed of upon affidavits which are at all conflicting and call for a decision upon controverted facts. The statements made by the appellants, in answer to the application, are not to be considered as mere expressions of opinion, but contain allegations which are very properly the subject of legal investigation, and a peremptory mandamus does not furnish the best and most orderly mode of determining questions of this character.
It is quite obvious that this is not a case for a peremptory mandamus; and as the act provides that the bonds shall be of the same force and effect as if issued in pursuance of chapter 15, Session Laws of 1863, and the several acts amendatory thereof, and as the board of supervisors are directed to cause a tax to be levied in such cases for the payment of the principal as well as the interest upon bonds thus issued, no valid reason is shown why an alternative mandamus should not issue. This is done sometimes when the facts on which the relator relies are in dispute, or where the parties wish to review the case on appeal, or upon the suggestion of either party. In this way the rights of all the parties can be fully protected and the ends of justice answered. In the observations made it is not intended to express any opinion as to the legality of the bonds in controversy, as that question more properly belongs to another forum.
The order appealed from should be modified so as to direct that an alternative mandamus issue.
All concur.
Ordered accordingly.