State ex rel. Lord v. Board of Supervisor

JacésoN, J. An application is made to this court for a peremptory mandamus, to be directed to the board of supervisors of Washington coiinty, commanding them to proceed, [555] under the act of the last session of the legislature, to let, to the lowest bidder, the contract for the erection of the county buildings, and to levy an additional tax upon the taxable property of the county for the puipose of defraying the expense and cost of their erection. A writ of mandamus is the highest judicial writ known to our constitution and laws, and, according to 'long approved and well established authorities, only issues in cases where there is a specific legal right to be enforced, or where there is a positive duty to be and which can be performed, and where there is no other specific legal remedy. Where the legal right is doubtful, or where the performance of the duty rests in discretion, a writ of mandamus cannot rightfully issue. Kindall v. United States, 12 Pet. 613; 18 Wend. 89; 5 Binney, 103; 12 Johns. 416; 1 Cow. 423. Tested by these principles of law, should the present application be granted ? The following is the act which is sought to be enforced by this writ: “ The board of supervisors shall, on the first Monday of May next, proceed to let, to the lowest bidder, the contract for the erection of a good and commodious court-house, upon the plan and style generally adopted by the different counties of this state, a good and sufficient jail, and good and commodious fire-proof clerk’s and register’s office, upon grounds in the village of,, Port Washington, to be located by the supervisors'of the county of Washington; said buddings to be erected and ordered during the summer of 1850, and finished by the first day of July, 1851; and for the purpose of defraying the expense and cost of erecting said buildings, the said supervisors are directed to levy an additional tax upon the taxable property of said county, in addition to the ordinary taxes of said county for the year 1850, equal to the amount of the contract price of said buildings.” .'Various objections were raised by the respondents, and ably [556] argued to this court, which it is not necessary to decide, among winch is the constitutionality of the act of 1850. The court are all of opinion that the power to award the writ, in a case like the present, is clearly conferred by the constitution and laws of the state. Nor is there any division of sentiment in regard to the operation of the law of 1847, by which the county seat of Washington county was located at the village of Port Washington for a period of five years. There cannot be two separate and distinct locations at one and the same time; nor can there be a right of reverting or returning to a Ibrmer location, without an express law to that effect. In this case there is none. The act of 1847 operated as an abrogation of all previous acts on that subject, and when the term of five year's expires there will be no established location of the county seat of Washington county. It will be the duty of the legislature, on the happening of that event, to provide by law for the establishment of a new location, and that can be done without any conflict with the provision of the constitution regulating the removal of county seats. But until the legislature shall make some additional statutory provision touching the permanent or temporary location of the comity seat, itrnust be regarded as fixed at Port Washington. Sec. 8, art. 13, ¿¡oust. The main objection to the allowance of the writ prayed for by the relator, arises from the vagueness "mid uncertainty of the law prescribing the duty of the respondents. The board of supervisors were required, on the first Monday of May, 1850, to “ proceed to let, to the lowest bidder, the contract for the erection of a good and commodious courthouse.” No provision is made for advertising or obtaining proposals, and it might well have happened that there would be no bidders, in which case the respondents could not have let the contract in the manner required by law. Nor was there any provision made for the purchasing or obtaining a site for [557] the county buildings; and it would seem to me to be unreasonable, if not impracticable, to compel the board of supervisors to contract for the erection of a court-house, jail and clerk’s office, without naming any lot or place for their location, and without its being known where, in fact, they were to be erected. But I have much greater difficulty with another clause of the act. The respondents are required to enter into a contract for the erection of a good and commodious court-house, “ upon the plan and style generally adopted by the different counties of this state.". There is no criterion that I am aware of, by which to determine what is the “plan and style generally adopted by the different counties of this state,” in the erection of their court-houses. It is believed that there are no two courthouses in the state which are alike in their form, material, dimensions and arrangements. Every member of the board of supervisors might have his individual opinion, and maintain with equal sincerity, that his plan and style approached the nearest to the “ plan and style generally adopted.” And the members of this court might be equally variant, in their own views upon the subject. It is clear, therefore, to my mind, that there is not, in this case, on the part of the relator, a specific legal right to be enforced, nor, on the part of the respondents, a positive duty to be performed, and which can be performed. While, therefore, in a case wherein the facts were such as to justify the awarding of a writ of mandamus, this court would not hesitate to interpose its authority to compel any individual or public body to discharge a duly, or perform an act required by law, I am satisfied that this is not one in which it would be safe or proper to exercise such authority. • . ■'' ■ The writ must be denied.