87 F.2d 953 | 5th Cir. | 1937
The defendant appellant, City of Hialeah, was sued in the District Court by persons alleging themselves to be a bondholders’ protective committee and transferees and holders of past due bonds and coupons of the city. They recovered judgment, and on a return of nulla bona sued out a mandamus nisi against the city and its officers to enforce the levy of a tax to pay the judgment.' The proceedings were arrested by an appeal from the judgment, which was affirmed in this court. City of Hialeah v. Harris, 83 F.(2d) 999. The mandate came down June 19, 1936. The tax year current when the mandamus nisi was taken having expired, the proceeding was on August 3d amended to refer to taxes to be levied and collected in 1936, and the judge having expressed an opinion that the tax would be too burdensome if levied in one year and ought to be spread out over seven years, such a provision was incorporated in the amendment. The amended mandamus nisi was met by a motion to quash, which was overruled, and then by an answer to which no traverse was made. The judgment rendered on August 10th was for a mandamus absolute, commanding the mayor to revise his budget estimate to include a tax for paying part of the judgment in the current year, and the council to revise its appropriation ordinance to adjust the tax rate so as to cover this payment, and to take similar action in the ensuing six years. This appeal results.
The motion to quash and the answer raise these defenses: (1) The officers are not alleged to be in default for the year 1936, but only for 1935. (2) The charter restricts the making of the budget and the appropriation ordinance to dates already past. (3) The judgment includes interest not authorized by law. (4) The city charter does not authorize taxation to pay such interest nor to pay matured bonds. (5) The plaintiffs got their bonds under a contract void for maintenance, champerty, and barratry. (6) The money is required to be paid to plaintiffs’ attorneys and each month as collected.
1. The default at first alleged related to the budget and appropriation ordinance for the year commencing July 1, 1935. The time for assessing and collecting taxes for that year elapsed pending the appeal. It was proper to amend the pending mandamus proceeding to adapt it to the year beginning July 1, 1936. State v. Milam, 113 Fla. 491, 153 So. 100, 125, 136. The amendment did not ,expressly set forth a recurrent failure and refusal to include this judgment in the tax arrangements for 1936, but that is fairly implied and is made certain by the answer. Where an intentional default in duty exists, a specific demand for performance is not a prerequisite for a mandamus. Santa Fe County Com’rs v. New Mexico ex rel. Coler, 215 U.S. 296, 30 S.Ct. 111, 54 L.Ed. 202. The pending mandamus, however, was fairly a continuing demand.
2. The city charter provides: “Not later than one month before the end of each fiscal year the mayor shall prepare and submit to the city council a budget estimate, etc.,” and again: “Upon receipt of the budget estimate the city council .'shall prepare an appropriate ordinance * * * not sooner than one week after the beginning of the fiscal year to which it is to apply, and shall pass said ordinance within four weeks after the beginning of the fiscal year.” The fiscal year begins July 1st. The times thus .fixed delimit duty but do not wholly exhaust authority. They are directory and designed to secure prompt and orderly action, but not to nullify belated action. If the mayor were ill or absent in June he could make the budget estimate in July or August, and the council on similar failure in their timely action could rectify the default rather than stop the financial government of the city for the year. We see no reason why, if a proper item be omitted accidentally, it could not be later added, or if omitted wilfully and wrongfully as here, could not be required to be added by the court so long as it remains practically possible to have the adjusted taxes assessed. The existence of the judgment raised the duty in the city officers to levy taxes to pay it if taxes are lawfully leviable and if there is no other means of payment. The duty is not escaped by failing promptly to comply with it. Compliance ordered August 10th was not too late, the taxes not being due and payable until November 1st, and it not appearing that the assessment roll had been prepared.
3. Touching interest, the city charter authorized bonds “of such denominations bearing such rates of interest not ex
4. In like manner the question concerning illegal champerty or maintenance in the plaintiffs’ title to the bonds and coupons is concluded. Although this defense was not raised in the suit on them it could- have been, and therefore is lost. Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195. The plaintiffs, after a fair litigation, having obtained judgment, must be recognized as competent to enforce it.
5. But they can enforce it by a mandamus to lay taxes only to the extent that the law authorizes taxation. The judgment establishing that the city owes money does not by itself confer'any power on the city officers to levy a tax upon the citizens to pay it. U. S. ex rel. Huidekoper v. Macon County Court, 99 U.S. 582, 25 L.Ed. 331; Brownsville Taxing-Dist. v. Loague, 129 U.S. 493, 505, 9 S.Ct. 327, 32 L.Ed. 780; Carroll County v. U. S. ex rel. Reynolds, 18 Wall. 71, 21 L.Ed. 771. The city charter authorized taxes when the bonds were issued, and still does, for general purposes and “such additional taxes as may be necessary to pay the interest on bonds and other indebtedness of the city, and also to provide a sinking fund for the redemption of said bonds and the payment of said indebtedness.” It is argued that while a tax could have been levied to raise a sinking fund to pay the principal of the bonds before maturity, none can be laid to pay the principal or any interest after maturity. So extraordinary a construction of the charter ought to be avoided because in itself unreasonable and because permitting the city to take advantage of its own wrong in not having provided the sinking fund. We hold rather that the fund now to be raised by special taxes to pay matured bonds is a “sinking fund,” and that the judgment in which the bonds as such have been merged is an “indebtedness” to pay which the city may levy a tax.
No error appearing, the judgment is affirmed.