Page:Federal Reporter, 1st Series, Volume 8.djvu/489

 UKITED STATES i;. AUDITOES OP TOWN OF BROOKLYN. 475 �were recovered as stated in the petition; that they ha've iiofc been paid either in whole or in part; and that no steps have been takeu bj the proper authorities of the town to cause their payment by the imposition of a tax upon the property of the town, One of the judg- ments was rendered more than five years since; one more than two years ; and the others during the last year. Although it was the duty of the defendants, or the board of auditors and the clerk, under the law, to adopt measures long ago to cause the payment of these judg- ments, rendered in March, 1876, in June, 1879, and in March, 1880, yet nothing has ever been done, and the only serions question, as I view the subject, ia whether it was necessary that a demand should be made in form by the rektOi", upon the authorities of the town, for their payment, or to proceed in the manner pointed out in the law to cause payment of the judgments. And I think it was not. These judgments were all recovered after due service of proeees upon the authorities' of the town, and after ample opportunity for defence. One of them involving, as I understand, the principle of all the cases, was finally decided by the supreme court of the United States adversely to the defence set up by the town. �It must be presumed, therefore, that these defendants knew of the existence of these various judgmente, and that it was their duty to proceed in conformity with law, and that they have failed so to do. It would seem, therefore, to be a vain act to demand that they should proceed under the law, when they had done nothing for a series of years. The only controversy abont any of the judgments is as to that rendered in December last. But while it is generally true that a court will not issue a mandamus to compel the performance of ah act which it is merely anticipated the defendant will not perform, still if the defendant has shown by his conduct that he does not intend to perform the act, and that fact is apparent to the court, it would be a work of supererogation to require that a demand should be made for its performance. Here the only effect of issuing the writ of mandamus is to require the authorities of the town to do what by law they are obliged to do.» The board of town auditors and the clerk are eaeh a part of the machinery, so to speak, by which the judgments are to be satisfied. The clerk is himself a member of the board of auditors. And therefore it seems to me to be proper ana reasonable, and nothing more than the relator has a right to claim of the court, that an order should be issued requiring them to do what the law says, in such a case as this, they must do. �According to my view of the case there is really no material fact ��� �