100 Wis. 232 | Wis. | 1898
This action was commenced in the circuit court September 12, 1896. The complaint alleges five-separate causes of actionj in each of which it is alleged, in effect, that the defendant was, at the times mentioned, indebted to the plaintiff on account for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant at Chicago, at its personal instance and request, and for which the defendant promised and agreed to pay to the plaintiff the-sum therein mentioned; that such claim was duly presented to, and duly audited and allowed by, the common council of the city at the time mentioned; that no order was issued by the defendant upon the city treasurer for the payment of such, amount so allowed, for the reason that there were no funds in the treasury for the payment of such claim; that July 17,1896, the plaintiff, as the owner and holder of said claim, made a demand upon the city clerk for an order for such amount, and that the same was refused for the reason that there were no* funds in the city treasury with which to pay such amount and claim; that there were no funds or moneys in the treasury of the city to pay the amount so allowed July 17, 1896, or any date subsequent thereto, and that there was then due and-owing to the plaintiff from the defendant thereon the sum mentioned, with interest from the time of such allowance;, that the time of incurring the indebtedness mentioned in the several causes of action, and the time of the allowance-of the same, respectively, were as follows, to wit: December 19, 1894, $26, allowed March 18, 1895; March 4, 1895, $38,. allowed March 18, 1895; August 3, 1895, $42, allowed January 14, 1896; January 7, 1896, $12, allowed July 14,1896; July 11, 1896, $800, allowed August 25, 1896. "Wherefore,
Error is assigned because the court did not dismiss the action for want of original jurisdiction. The contention is that the court could only get jurisdiction by appeal upon the disallowance of one or more of the claims in whole or in part, as prescribed in the charter. Laws of 1889, ch. 27, subch. Y, sec. 6; subch. VII, secs. 4-6; subch. Till, sec. 13. These sections have recently been so fully considered and so carefully construed as to require nothing further to be said in respect to their meaning and effect. Mason v. Ashland, 98 Wis. 540; Telford v. Ashland, post, p. 238. In the case at bar each of the several claims was presented, audited, and allowed in full. Since no part of any of such claim was disallowed, it'is obvious that the plaintiff was not aggrieved by any disallowance; and hence had no occasion to appeal. In support of the judgment it is contended that the plaintiff cannot enforce payment against the city without such judgment as a basis of action; in other words, that the plaintiff’s claim in the aggregate., so allowed, cannot be enforced by mandamus without first being put into judgment.
The charter provides, in effect, that the city clerk shall “ draw and sign all orders upon the treasury, except as otherwise ” therein provided, in pursuance of an order or resolution of the common council (sec. 3, subch. V); that “no execution shall at any time be issued on any judgment against the city, but the judgment shall be levied on the taxable property of the city, and placed in the next tax roll for collection, and on or before the 1st day of May thereafter the amount of such judgment shall be paid to the judg
It is true that the several claims allowed in favor of the plaintiff are not to be regarded as judgments against the city, within the meaning of sec. 15, subch. VIII, supra,; nevertheless they are “final and conclusive,” the same as a judgment would be, not only in favor of the plaintiff, but against the city. This being so, the question recurs whether the payment of such claims may be enforced by mcmdam/us, the same as a judgment could be. The charter provides that the city “ shall have the general powers possessed by municipal corporations at common law, and also the powers hereinafter' specifically granted, and the authorities thereof shall have-perpetual succession, and shall be capable of contracting and being contracted with, suing and being sued, pleading and being impleaded with, in all courts of law and equity, and shall have a common seal, and may change and alter the same at pleasure.” Sec. 1, subch. I. There is no pretense that the city did not have power and authority to contract the indebtedness for which such several claims were allowed. Such allowance was a complete liquidation and settlement of the amount due upon such claims, and hence was final and conclusive between the parties. The city having power to contract the indebtedness, and to adjust, settle, and allow the same, it became its imperative duty, if necessary, to levy and collect a tax sufficient to pay such indebtedness at the earliest period practicable, under the provisions of the charter. The general rule seems to be “ that where there is a clear duty to levy and collect a special tas to pay a special debt or class of debts, and where the genuineness of the debt is not questioned, and no valid defense is alleged or claimed, the levy and collection may be enforced by mcmdcwnus without a prior judgment at law.” State ex rel. Pfister v. Mayor,
There are cases the other-way,.notably in the supreme court of the United States; and yet some of them are clearly distinguishable. But the rules stated are in line with our decisions. The plaintiff has an adequate remedy by mandamus to enforce payment, and under the charter has no other remedy. State ex rel. Buchanan v. Kellogg, 95 Wis. 679; Board of Police v. Grant, 9 Sm. & 77. Since this is so, the necessity of first obtaining a judgment in court, as a basis of a mandamus, as argued by counsel, does not exist. We must give effect to the provisions of the charter.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the action.