Page:North Dakota Reports (vol. 1).pdf/112

 the contrary, the county, should the writ be granted and the amount of the judgment be collected before decision on appeal, might, in case of reversal, find itself without power to compel a restitution of the money paid, because of the insolvency, existing or intervening, of the persons to whom the payment should be made. “Cases may therefore arise where the applicant for relief has an undoubted legal right, for which mandamus is the appropriate remedy, but where the court may, in the exercise of a wise judicial discretion, still refuse the relief." High, Extr. Rem. § 9. We do not go so far as this statement of the doctrine would warrant us in going. We merely refuse to grant the writ until the final decision in the federal supreme court. Until that time the right to the writ is in equity imperfect. There is a possibility that the judgment sought to be enforced thereby will be reversed. The equitable defense to this application is that the proceedings are in fieri, and the relator’s right inchoate, so long as there is an appeal pending. Said the court in Devereaux v. City of Brownsville, 29 Fed. Rep. 742-751: "The court does not grant or refuse the writ upon purely legal considerations. If the defendant has any equitable defense against it he may set it up in his answer to the rule to show cause or alternative writ, and it will authorize the court to refuse the peremptory writ." The alternative writ is quashed, but without prejudice to the right of the parties to apply for a new writ after the final decision of the appeal by the federal supreme court. All concur.

1. Constitutional Law; Seed-Grain Bonding Law Valid.

An act approved February 14, 1890, entitled "An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein," examined and held to be valid, and not an abuse of legislative powers, in that it authorizes the issue of bonds and taxation for a public purpose. Held, further, that the act is not an infringement of § 185 of the state constitution, in this: that it is a measure intended for the "necessary support of the poor."