135 F. 19 | 7th Cir. | 1904
(after stating the facts).
We are not put to the necessity of determining the question of the personal liability of the city of Superior upon these bonds. With respect to somewhat similar obligations its liability was considered by us in King v. City of Superior, 54 C. C. A. 499, 117 Fed. 113, and by the Supreme Court of Wisconsin in Fowler v. City of Superior, 85 Wis. 411, 54 N. W. 800. The authority of the latter case is, however, somewhat shaken by the later case of Uncas National Bank v. City of Superior, 115 Wis. 340, 91 N. W. 1004. The appellant, the owner of the bonds in question, has, for the purposes of this suit, waived any claim thereon except for such relief as he may be entitled to growing out of the acts and omissions of the city with respect to the assessments pledged for the payment of the bonds. Therefore, within the theory of the bill and stipulation, the city is not a primary debtor, but merely the legal agent through whom the special assessments are to be collected. The municipality is statutory trustee for collection, bound to the exercise of due diligence to collect according to law, enforcing the lien through municipal machinery as agent of the owners of the bonds, and answerable for failure to perform this duty, or in paying over or in failing to pay the money collected. New Orleans v. Warner, 175 U. S. 120, 132, 20 Sup. Ct. 44, 44 L. Ed. 96. It is not a guarantor of collection ; and, unless there be such failure in duty, there cannot be liability for noncollection. Roter v. City of Superior, 115 Wis. 243, 91 N. W. 651.
It is insisted that the city of Superior should respond for the assessments returned delinquent to the treasurer of the county of Douglas, from the fact of such return, and whether in fact collected or not. By the general law of the state taxes returned delinquent “shall belong to the county.” But this is the rule only when the county levy is equai
The fourth assignment asserts the right to recover for the assess
The fifth assignment questions the action of the trial court in limiting the amount of his recovery to his pro rata share of the fund to which the holders of all the bonds were entitled. This fund, derivable from the assessments, was a trust fund, pledged to the payment of all of the bonds. The right of the appellant therein was only to such portion of the fund realized as the sum of his bonds bore to the entire amount of the issue of bonds. It is true that equity favors the vigilant, not the slothful; but we think it would be a manifest perversion of equity to require a trustee to commit a breach of trust owing to other cestuis que trustent, by taking from other bondholders and awarding to the appellant so much of this fund as would pay his bonds in full. We know of no principal of equity which would warrant such a decree.
The sixth assignment has reference to the question of interest. The rate allowed was that which the city received from the depositories of the fund, and that usually is all that a trustee in like circumstances would be liable to pay. The insistence is based upon the theory that the city had converted the fund, but we are unable to concur in that contention.
Several assignments embodied in the seventh assignment in the statement of the case go to the manner adopted to ascertain the proportion of the fund due to the appellant. The method pursued is somewhat involved, but we need not be careful to determine its correctness, because, whether computed by that method or by any other known to us, the amount decreed is greater than the share of the fund due to the appellant. Compelled, under the stipulation, to view these bonds, not as obligations of the city for the payment of money, but as mere certificates to pay which the assessments are pledged, there is no liability upon the city for the payment of money, except for failure to put in force the machinery of the law to collect them, or to pay over the amount collected. One who is content to invest upon such security must take the hazard of collection under and according to law, and cannot hold the municipality as guarantor. Therefore the appellant here is only entitled to his pro rata share of the fund collected by the city, less the amount which he has already received. We have been unable to arrive at the result of the decree by the method of computation declared. The tables furnished by the appellee (the appellant has furnished none) show that upon the method of computation adopted by
Thus he Is entitled to 71.70 per cent, of the amount chargeable to the city with respect to Clough avenue improvement ($8,932.78),
which would amount to....................'...................$ 6,404 81
And to 10.46 per cent, of the amount collected on the Tower avenue
improvement ($35,270.89), which would amount to............... 3,689 34.
$10,094 15
Hess previously received by him on both series of bonds............ 8,337 50
$ 1,756 65
Adding interest at 6 per cent from July 2, 1902, to date of decree,
March 5, 1904................................................. 177 36
Making a total............................................$ 1,934 01
—being over $1,000 less than he has been awarded by the decree. We should, of course, decree for any assessment collected by the county if the moneys so collected had been traced into the hands of the city treasurer; but the finding of the decree, stipulated to be correct as to facts, is to the contrary.
The decree must therefore be affirmed.