152 F. 907 | 6th Cir. | 1907
This cause is now here for the fourth time. On the first occasion, it was brought up on an appeal by the complainant from a decree of the Circuit Court dismissing the bill. The decree was reversed, with directions to enter a decree for the
“That the defendant below be directed to pay over any surplus which may ’ remain from the proceeds of the total levy made for all purposes in 1900, aft- ’ er defraying the current expenses chargeable upon the ordinary revenue of the ,city, and that it make a further return showing the amount of the tax so collected, and how same has been applied. That the defendants below be commanded to levy for each year succeeding the entry of this judgment the full ’ tax- of’ 75 cents on the $100 of assessable city property, and the full poll and privilege-taxes permitted by the charter of 1893, until the judgment of’relator, with interest and costs, shall be fully paid; and, after defraying all ordinary expenses payable out of the revenue so raised each year, it will pay over to the relator any surplus remaining each year, until his judgment shall be paid, -and that it make all such other returns as shall be required by the court below, showing how it has obeyed this judgment.”
. After the Circuit Court had entered the judgment we directed, the city made a further return as therein required, and evidence relating to the matters stated in said return was taken before a master as in equity •proceedings; but the relator had taken no issues either of fact or law
We take the facts as we gather them from the return of the city and the agreed statements. The return for the year 1900 shows that taxes to the amount of 75 cents on the $100 of the valuation were collected. It also shows that the whole amount thus collected was disbursed, but that no part was applied to the relator’s decree. The exceptions of the relator to the disbursements of that year challenge the following items: An item of $250 paid, to attorneys for services rendered in 1899. It does not appear at what time in 1900 this item was paid; nor is it important, as we think, to fix the precise date. The petition for mandamus, filed in July of that year, did not seek to impound the general taxes for 1900, or any part of them. It was filed for the purpose of compelling a special levy to satisfy the decree, and that was what the Circuit Court ordered. Until the date of the judgment of this court, which was October 8, 1901, there was no order or judgment which interfered with the power of the city to pay am*valid obligation. The order then made could only apply, so far as the revenues of that year were concerned, to any surplus arising from the collections of that year which still remained in the treasury. The same observations apply to the second exception, which is to the disbursement in that year of $843.70 to pay a note given for a rock-crusher, and to the third exception, to the payment of $533140 due on a judgment against the city for attorney fees. It is not charged that any of these three items were not valid obligations of the city.
• The return for 1901 shows that taxes to the full amount of 75 cents on the $100 were collected, that they were all disbursed, but none to the relator. Among, the disbursements was an item of $2,125 for the purpose of building an addition to a public school building, and this disbursement formed the subject of the relator’s fourth exception.
We are therefore of opinion that the Circuit Court erred in holding that the return was sufficient, and specifically in regard to the disbursement of $2,54-8.85 for school buildings in 1902, and in so far its judgment should be reversed, with directions to adjudge the return insufficient in the regard mentioned. And it is authorized, if it shall be so advised, to order a more specific return as to the time when the disbursement of the $8,125 for school buildings was made in 1901, and, if it shall appear that it was made after the 8th day of October of that year, the said return in that respect should be judged insufficient. The costs of the proceeding were erroneously adjudged to be paid by relator. JUie relator was entitled to a return to the writ. The circumstances justified him in pursuing his remedy, and, as above indicated, we think the court erred in holding; the return sufficient, and that the relator should have been awarded costs.
The return made for the year 1903 shows that the full 75 cents on each $100 was levied and collected and disbursed by the city, and that nothing has been paid to the relator. It also shows that there ivas a ‘‘cash balance in the hands of the city treasurer for 1903” of $722.(51. Nothing is said about this in the judgment of the court below; and. from the fact that no error is assigned because the court did not order it to be paid over, we do not concern ourselves with'it. There is no assignment of error in dealing with the return for 1903, except as it may be indirectly involved in the assignments presently to be noticed. Apparently that surplus would be paid to the relator.
The other assignments of error seem to be intended to raise two questions of ail interesting character, of which one is whether the act of the legislature of Tennessee of 1895 which transfers the duty of valuing the property of the city for assessing taxes from the recorder of, the city to the county assessor, who makes, under that act, a single valuation for state, county, and municipal purposes, impaired - the obligation of the city in respect of his contract, which was of earlier date. Under the then existing law the recorder valued the property in the city only, and he was by the statute required to value it at its true cash value. This the relator was entitled to have done, and he might probably have compelled the recorder to make such a valuation. In Deere v. Board of County Com’rs (C. C.) 33 Fed. 823, it was held by Mr. Justice Brewer, then Circuit Judge, that, where-at the date of the obligation the commissioners were authorized in their discretion to levy a poll tax to meet the obligations of the county, a mandamus might properly be issued to compel them to do so, notwithstanding their authority to lev}7 poll taxes had since been taken away •by a law of the state; the case being one where a judgment creditor could not be satisfied by other methods of taxation. By the act of 189.5 the valuation is to be made by an officer who is not an officer of the city, but one who, when he values property, values it not only for •city purposes, but for those of the state .and county, and he could not be compelled to’ make a valuation for the former without also doing ..it for the latter. In normal circumstances the mere transfer of such a , .duty from, one. officer to another would not impair any contract obliga
The other question is whether the court might compel the city to make' a distinct levy of 75 cents on each $100 of the 30 per cent, of valuation which has not been taxed, and apply this to the payment of the judgment. But here we have the same difficulty.# The conditions required for awarding this special relief are not found in anything which the- relator has done or asked in the requisite legal form of procedure.
The judgment of the court below will be reversed, with costs, and the cause remanded with directions to enter a judgment for the relator as indicated in the foregoing opinion.
We have thought it necessary to review the order of the Circuit Court which adjudged the return sufficient, and to reverse the same to the extent that we hold the order erroneous, lest the order might conclude the relator in any subsequent -proceeding he might be advised to take against the board or the individuals composing the same for a breach of duty in respect of the levjdng and appropriation of taxes which should have been applied to the payment of his debt. In saying this, however, we are not to be understood as expressing any opinion as to whether such a remedy is open to the relator or not.
When, on October 8, 1901, we directed the order hereinbefore in part recited, we assumed that the board of mayor and aldermen of the city, its duties being defined, would in good faith proceed to exercise its legitimate powers so as to provide for the payment of the relator’s judgment. It is now complained that it has acted in bad faith, and has industriously so shaped its conduct as to exclude the relator from the relief due to him. -We do not need to express an opinion upon that subject.' There is, however, an aspect of the case which we should not ignore. The court below expressed the opinion that whatever the fault of' the board in respect of the appropriation of the taxes levied in previous years, inasmuch as those taxes had been already disbursed and could not now be reached, and the membership of the board had been changed so that other persons now composed it, the court was
Order reversed, with directions as herein indicated.