205 F. 603 | 9th Cir. | 1913
(after stating the facts as above).
“All inoi'oys collected on and after the first day ot February, 1898, from taxes of the year 1890, and previous years, and from penalty and interest thereon, shall be paid into the indebtedness fund.”
It has been decided in the state of Washington that the fund to he known under the act of 1897 as the “Indebtedness Fund” supplanted the original general fund, and that all existing warrants shouldTe paid therefrom. State ex rel. Polson v. Hardcastle, 68 Wash. 548, 553, 124 Pac. 110.
The question presented arises on a motion for a nonsuit interposed both at the conclusion of the plaintiff’s testimony and at the conclusion of the entire testimony.
There are to be found in the testimony as certified by the hill of exceptions certain letters from the county treasurer of Jefferson county, Wash., to the city treasurer, transmitting certain tax moneys received from tax rolls and from sales of county delinquent property which had previously been acquired upon tax foreclosure sales. One list, transmitted to the city treasurer January 11, 1909, shows money received:
From sales of county real estate, lands and premises..............$ 851 2S
From 1904 tax rolls............................................ 90
From 1905 tax rolls............................................. 1 41
From 190(5 tax rolls............................................. 8 14
From 1907 tax rolls............................................. 1.922 8(5
Total if! 2,784 6»
Another list which is cast in the record shows remittances ranging from February 6, 1909, to May 10, 1910, aggregating $7,369.58. All the sales referred to are of county property that liad been acquired by the foreclosure of tax liens. The trial court found, as one of its conclusions of fact, that between January 4, 1910, and December 1, 1910, the city treasurer received, as the city’s share of the. proceeds of the sale of property that had been forfeited to the county for nonpayment of taxes, the sum of $4,674.69, and that the warrant was presented December 1, 1910. It does not appear clearly how the court arrived at this specific conclusion. But, turning to the sources of the indebtedness fund, we find it may be replenished by virtue of the seventh section of the act of 1897 by all moneys collected from the taxes of the year 1896 and previous years, and the 6 per cent, levy required to he made annually under the provisions of said act. Of moneys turned into the hands of the city treasurer $1,933.40 was from the tax rolls of 1904, 1905, 1906, and 1907, and the balance, namely, $8,220.81, was derived from sales of county real estate which had previously been acquired under foreclosure sales of tax liens. "When the taxes were assessed forming the basis of the liens does not appear. It is fair to
“That it shall be the duty of any such .treasurer to pay on demand, in the order of their issue, any warrants when there shall be in the treasury sufficient funds applicable to such payment.”
In other words, the city council could not, under the laws by which it is governed, postpone some warrants and-prefer others, all being drawn on the same fund. If the Legislature of the state cannot divert a fund to the detriment of a warrant holder (Hardcastle Case, supra), much less can the city council do so, and that without any semblance of authority from the Legislature.
It is stoutly urged, however, that the city of Port Townsend could not be rendered liable generally to contractors for local street or grade improvements where within the plan for such local improvements a local assessment is contemplated for meeting the expenses of the improvements, and that, therefore, it was beyond the power of the superior court to pass judgment against the city upon such an alleged liability. The plaintiff controverts this position, and contends that the Elliott judgment is a bar to defendants’ insisting upon the invalidity of the warrant which was issued by the city to satisfy such judgment. It does not seem to be contended that the city was without authority to construct local improvements by general tax, or from its general funds, without resort to local assessments for the purpose.
To get our bearing more particularly, the Elliott judgment was rendered November 16, 1897, and the warrant, was issued in satisfaction thereof February 18, 1898. Prior to these dates, it had been several times decided by the Supreme Court of the state of Washington that a general liability arose against the city as upon an implied agreement upon its refusal or failure to perfect and collect a proper assessment in special district's, adequate to meet the expenses incident to making local improvements. It was so held in effect in Stephens v. City of Spokane, 11 Wash. 41, 39 Pac. 266. The case was again before the court (14 Wash. 298, 44 Pac. 541, 45 Pac. 31), and the doctrine was adhered to, but in a somewhat restricted sense, the court holding that ^the city would not become liable generally unless it appeared that it had failed to take steps to provide such special fund, or had been so negligent in its attempt to create the fund that the right thereto had
Now, recurring to the question of the power of the court in the Elliott Case to render judgment, it will be seen that at the time even the Supreme Court of the .state was in a yacillatory and transition period from the doctrine of implied liability on the part of the city for failure in street assessments for local improvements to a doctrine of absolute nonliability. The doctrine in either phase was the result of the application of general law in connection with the construction of the statutes governing and limiting the powers of the cities. While in Washington it was first held that the general liability of the cities is to be implied, yet elsewhere it’has been held that the liability arises in tort. Little v. City of Portland, 26 Or. 235, 37 Pac. 911. So that the statutes alone do not determine the matter by positive and unalterable edict, circumscribing by absolute letter the power of the cities in the respect under consideration. A court of general jurisdiction is possessed of power to entertain cognizance to examine into and determine as to all legal questions of common dispute, of which the question involved in the Elliott Case was one. There can.be no stronger proof of that than the fact that the Supreme Court decided both ways upon the subject. The Supreme Court has power to decide and determine touching the question, as it has finally done. Can it be doubted that it had as absolute power to decide as it did formerly, and to render judgment accordingly? If it had such power, what shall we say of the power of the superior court exercising general but primary jurisdiction to hear and determine, and to render judgment in the first instance ? The question is not whether the superior court decided rightly or wrongly, but whether it had power to decide at all. If it had such
Further than this, under the state of the holding of the Supreme Coxtri at the time the judgment was given and tendered in the ElliotL Case, it could not then he regarded that the Supreme Court had wholly reversed its doctrine upon the subject, and the superior court might well have been honestly mistaken as to the true holding of the Supreme Court, as subsequently interpreted by later decisions.
We conclude, therefore, that the judgment in the Elliott: Case, as pleaded by the defendants and produced m evidence by the plaintiff, is conclusive against the city, and therefore a bar to the defendants now contesting the validity of the warrant in question issued in pursuance of such judgment.
Technically speaking, “recess” probably applies to an intermission taken by a deliberative body from time to time during a day, and “ad
.The judgment of the District Court will be affirmed.