26 Wash. 389 | Wash. | 1901
The opinion of the court was delivered by
This was an action for a writ of mandate to compel the mayor and city council of the city of Hew Whatcom to levy and certify for collection an additional and supplementary tax upon the taxable property within the city for the year 1898 at the rate of 3J mills on each dollar of the equalized assessed valuation of said" property, or such other rate as may be adequate, for the purpose of paying certain arrears of interest upon an issue of “Water Works Bonds” of said city, and to compel the application of such additional levy, when collected, to that purpose.
Upon motion and affidavit of plaintiff, the superior court of Whatcom county issued an alternative writ of mandate commanding the defendants to make the levy
There is no controversy in regard to the facts of this case. It is admitted that on or about April 1, 1893, the city of Hew Whatcom issued, sold, and delivered its “Water Works Bonds,” each for the principal sum of $1,000, aggregating $183,000, payable twenty years after date, and bearing interest at the rate of 5% per cent, per annum, payable semi-annually, each of said bonds being accompanied by semi-annual interest coupons maturing severally on April 1st and October 1st in each year of the debt period; that all the bonds are still outstanding and
It is claimed on behalf of respondents that, inasmuch as the city council have each year made a tax levy upon the assessed value of all taxable property in the city, sufficient by computation to pay the accruing installments of interest on the bonds under consideration, they have not only performed their full duty under the statute, but have exhausted their power in that regard; and this seems to have been the view entertained by the learned trial court. Indeed, it is frankly conceded by the learned counsel for appellant that the language of § 4 is susceptible of the construction contended for by the respondents and given it by the court below. But at the same time they earnestly insist that the section may also be held to mean that there shall he levied each year a tax which shall be, in point of fact, sufficient to pay the interest on the bonds as the same accrues, and that the latter interpretation is the more rational one in view of the whole context and of the object of such a section in the act, and also of the well known fact that a large percentage of the annual tax levies of cities and towns in this state goes delinquent each year, and that, after its delinquency, is slowly and irregularly paid into the treasury during successive years. If the respondents in fact made a tax levy during the year 1898 and previous years sufficient to meet the interest on the bonds as the same accrued, it follows that they have performed the duty enjoined upon them by the statute, and, of course, can not he compelled by mandamus or otherwise to do more. In the absence of legislative authority, the city could levy no tax whatever. The power of taxation is an attribute of sovereignty, and belongs to the state alone; but the legislature may delegate the power to municipal
It is said by counsel for appellant that the limitations on the taxing power of cities of the third class in this state are expressly declared in the statute providing for the organization and government of such cities to have no application to taxes levied for the payment of bonded indebtedness and interest thereon, and § 128, p. 190, of the Laws of 1889-90 (Bal. Code, § 946), is cited in support of this proposition. That section provides that “nothing in this chapter contained shall be construed to prevent any city having a bonded indebtedness, contracted under laws heretofore passed, from levying and collecting such taxes for the payment of such indebtedness' and the interest thereon as are provided for in such laws, in addition to taxes herein authorized to be levied and collected.” This section must be read in connection with § 111 of the same act, which latter section prescribes the purposes for which taxes may be levied; and, when so read, we think it will be .apparent that it does not enlarge the power of taxation prescribed by the act under which the bonds in question
It is further contended on behalf of appellant that, even if this court should feel constrained to hold, with the court below, that the obligation imposed by § 4, of the act in question, extends only to the levying in each year of a tax in an amount “theoretically” sufficient to meet the ensuing year’s interest on the bonds, yet the appellant’s action may reasonably be sustained upon the ground that the provision made by § 4 for the payment of bond interest is not exclusive, and that the act as a whole, by fair implication, imposes upon cities the duty of providing, by taxation or otherwise, for the discharge of obligations which they may have incurred under its authority. And several cases are cited from the federal courts in support of the doctrine that implied duties, as well as duties expressly imposed, will be enforced by mandamus. See City of Galena v. Amy, 5 Wall. 705; Butz v. City of Muscatine, 8 Wall. 575; United States v. County of Clarke, 96 U. S. 211, affirmed in Knox County Court v. United States, 109 U. S. 229 (3 Sup. Ct. 131); Louisiana ex rel. Nelson v. Police Jury of St. Martin's Parish, 111 U. S. 716 (4 Sup. Ct. 648) ; East St. Louis v. Amy, 120 U. S. 600 (7 Sup. Ct. 739) ; Scotland County Court v. United States, 140 U. S. 41 (11 Sup. Ct. 697) ; Ex parte Parsons, 18 Fed. Cas. No. 10,774; Peterkin v. New Orleans, 19 Fed. Cas. No. 11,026; Sibley v. Mobile, 22 Fed. Cas. No. 12,829.
While it is true that in some of these cases the implied duty of municipal corporations to pay their debts evidenced by bonds was enforced, and the several municipal
In Louisiana ex rel. Nelson v. St. Marie’s Parish, a judgment creditor of the parish was entitled by his contract to he paid out of specific tax levies, Avhich contract the corporation had failed to comply Avith, and a mandamus was awarded to compel the levy and collection of a sufficient tax to pay his judgment. In Ex parte Parsons the court held that where a municipal corporation was under obligation to levy taxes to meet a debt due a particular creditor, such creditor was entitled to a mandamus com
We deem it proper, in closing this opinion, to observe that we do not wish to be understood as deciding that the city of Hew Whatcom is under no obligation to pay the balance due on the interest coupons in question. That is
The judgment appealed from is affirmed.
Reavis, O. J., and Dunbar and Eullerton, JJ., concur.