Jacksonville School Dist. v. Crowell

• Decision Date: 11 April 1898
• Parties: JACKSONVILLE SCHOOL DIST. v. CROWELL et al.
• Court: Oregon Supreme Court

52 P. 693

33 Or. 11

JACKSONVILLE SCHOOL DIST. v. CROWELL et al.

Supreme Court of Oregon

April 11, 1898

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Mandamus by the Jacksonville school district against W.S. Crowell and others. Writ was awarded, and defendants appealed. Appeal dismissed.

C.B. Watson, for appellants.

A.E. Reames, for respondent.

MOORE, C.J.

This proceeding was instituted by plaintiff against the defendants, W.S. Crowell, county judge, and Martin Perry and W.H. Bradshaw, county commissioners, of Jackson county, to compel them, as the county court of said county, to perform an alleged duty enjoined upon them by law, to wit, to levy an additional tax upon each dollar of the taxable property of said county for school purposes; and at the trial thereof the court awarded a peremptory writ of mandamus, as prayed for in the petition. The county court obeyed the command, in pursuance of which it levied an additional tax of 1.2 mills which was duly extended upon the tax roll of said county, and a warrant attached thereto commanding the sheriff to collect the same. Thereafter defendants perfected an appeal, which plaintiff's counsel move to dismiss, contending that the compliance with the terms of the peremptory writ waived the right of appeal; while defendants' counsel insist that the statute under which the writ was allowed is violative of the constitution, and, such being the case, the legislative act should receive judicial construction, notwithstanding the mandate has been obeyed. But it is urged in plaintiff's behalf that the tax having been levied, and the greater portion thereof collected, in pursuance of the peremptory writ, a reversal of the judgment would not place the taxpayers whose property was affected thereby in statu quo and that the ministerial duty of levying the tax, which the law enjoins, having been fully performed, the county court is powerless to review its action, and hence a judgment of reversal would have nothing upon which it could operate. The power of a superior court to compel an inferior court, corporation, board, officer, or person to perform an act which the law specially enjoins, as a duty resulting from a trust or station, continues until such act is accomplished, upon the performance of which the court must necessarily lose jurisdiction of the person and subject-matter; for it must be admitted that it would be a vain thing, indeed, to adjudge that an inferior tribunal was under no obligation to perform an act after it had been fully accomplished. The rule is general that an appellate court cannot, without express statutory authority, assume jurisdiction of, or express opinions which will be of any binding force upon, a disputed question of law, unless it is involved in a substantial controversy existing between adverse parties, and brought before such court for review in the manner prescribed by law. 2 Enc.Pl. & Prac. 341; Elliott, App.Proc. § 520; Lord v Veazie, 8 How. 251; Wood-Paper Co. v. Heft, 8 Wall. 333; Little v. Bowers, 134 U.S. 547, 10 Sup.Ct. 620; Manufacturing Co. v. Wright, 141 U.S 696, 12 Sup.Ct. 103; California v. San Pablo & T.R Co., 149 U.S. 308, 13 Sup.Ct. 876; Mills v Green, 159 U.S. 651, 16 Sup.Ct. 132. In Cutcomp v. Utt, 60 Iowa, 156, 14 N.W. 214, the trial court having refused to grant a writ of mandamus to compel defendant, as mayor of a city, to issue to plaintiff a license to sell wine and beer for the period of one year from April 13, 1881, under an ordinance which provided that an annual license might be issued to the keepers of wine and beer saloons for the sum of $20, plaintiff appealed from the judgment; and it...