I concur. At first blush I was of the opinion that the appellants should, prevail. After further consideration and reflection, and after a thorough and careful examination of the state statute and city ordinances, I am forced to the conclusion that the city, through its treasurer, does not possess the power to do what is demanded, and hence cannot be coerced by mandamus to comply with the demand. It is now well settled, in this jurisdiction at least, that mandamus will not lie unless the duty to do the demanded thing is clearly imposed, upon the one hand, and the right to have the thing performed is equally clear, upon the other. I entertain a very serious doubt, to say the least, of the city’s right to enforce a separate delinquent installment of the special tax in question by advertisement and sale of the property upon which the tax is a lien. The law, I think, is clear that, where no special remedy is given to enforce a tax or a tax lien, general or special, the ordinary or usual remedies must be resorted to. While in this case a special remedy is given to enforce the tax as a whole when it becomes delinquent, yet, as I read the law, no such special remedy is provided to enforce a separate delinquent installment. Some force to this conclusion is found in the fact that so long as the tax is not delinquent it only bears 6 per cent, interest, while on becoming delinquent it bears 8 per cent, until paid. The person holding a tax warrant is, therefore, in theory at least, compensated for the delay in payment by an increase in the rate of interest on his investment. We have recently held (Lannan v. Waltenspiel, 45 Utah, 564, 147 Pac. 908) that special taxes in this jurisdiction constitute a first lien upon the property. Special tax warrants, in the nature of things, are therefore abundantly secured. While it, no doubt, would give a better and firmer basis to the city’s credit if the installments were enforeeable as they become delinquent, yet that is a matter which must be regulated by the legislative, and not by the judicial, branch of the government.
The judgment should therefore prevail.