198 P. 159 | Idaho | 1921
The city of Weiser created certain sewer districts and caused sewers to be installed. The property affected was duly assessed and bonds were issued under the provisions of R. C., sec. 2353, as amended by S. L. 1911, chap. 80, subd. 11, now C. S., sec. 4149. Respondent bought certain of these bonds. Appellant, the city treasurer, had on hand sufficient funds paid on assessments to pay all The interest due on outstanding bonds. Respondent presented overdue interest coupons to the amount of $584.68. Appellant refused to pay said coupons except in accordance with a partial payment plan whereby she makes payments upon all interest coupons and the
The question is the interpretation of R. C., sec. 2353, as amended by S. L. .1911, chap. 80, subd. 11, now O. S., sec. 4149. Appellant contends, first, that mopeys paid on sewer assessments' should be kept in two funds, a fund for interest and a fund for principal, and applied accordingly; second, that the judgment conflicts with the decision of this court in New First Nat. Bank v. City of Weiser, 30 Ida. 15, 166 Pac. 213; third, that applying the money in, the method contended for by respondent would result in depriving property owners in the district of their property without due process of law; and, fourth, that mandamus is not the proper remedy.
We cannot agree with the contention of counsel for appellant that the statute contemplates a separate interest fund and a separate principal fund. The provision that “The city treasurer or other authorized officer of such city, town or village, shall pay the interest on the bonds authorized to be issued by this chapter out of the respective local improvement funds from which they are pay
New First Nat. Bank v. City of Weiser, 30 Ida. 15, 166 Pac. 213, is not controlling because it involves the construction of a different statute, to wit: R. C., sec. 2238, as amended by S. L. 1911, chap. 81. That statute, unlike the one involved in the present case, has no provision to the effect that the fund shall be first applied to the payment of interest on all unpaid bonds, and, second, to the redemption of the unpaid bonds. In that case the court held that the, defendant was paying out the funds in exact accordance with the provisions of the statute under which the bonds were issued.
Appellant’s contention that the method of payment directed by the judgment deprives property owners in the district of their property without due process of law is not borne out by the facts.
The statute provides: “Where any piece of property has been redeemed from liability of the costs for any improvements as herein provided, such property shall not thereafter be liable for further assessment for the costs of such improvement except as hereinafter provided”; thus limit
Appellant has on hand more than sufficient money to pay all interest on unpaid bonds. As the statute requires her to first pay the outstanding interest and then call in as many bonds as she has funds to take up, and ¡as she has refused to do this, after proper demand, mmdamus is the appropriate remedy to compel her to perform the duty enjoined by the statute. There is no other remedy to enforce the right asserted, viz., the right to have the money in the hands of the treasurer paid out in accordance with
Petition for rehearing denied.