7 Colo. App. 229 | Colo. Ct. App. | 1895
delivered the opinion of the court.
Frank W. Rollins, the owner of a judgment against Rio Grande county, instituted these proceedings in mandamus to compel the county to levy a tax to pay the judgment. As originally formed, issues both of fact and of law were tendered
When the petition was filed, an order was made directing the issue of the alternative writ, which accords both with the statute regulating proceedings in mandamus and is in harmony with the usual course of the common law. The order was not carried out, but the county appeared and stipulated that the petition should be taken for the alternative writ and the matter be heard on the law issue formed by the pleadings. This was not an irregularity which at all affects the proceedings and really accords with the very general practice which now prevails. A mandamus is no longer regarded as a prerogative writ. Its form, tenor and purpose, and perhaps it may therefore be said many of its objects, are totally different from those which obtained when the writ was first devised. This position could be easily sustained by a reference to the authorities. However interesting this might be as a bit of history or of learning, it would have very little significance in the determination of the present matter, or aid in the establishment of a practice which may be deemed pretty well settled by both the statute and the decisions. Fisher v. The City of Charleston, 17 W. Va. 595.
We now recur to the main question. Put in the tersest fashion, it concerns the right of a judgment creditor to compel a county to levy a tax to pay his judgment. If this right exists, it must be either because it is conferred in direct terms by some statute, or conferred in terms which grant the right when the act is construed according to well recognized principles of statutory construction. The revenue legislation pertaining to this matter, and that which confers political and governmental authority on these subdivisions of the state, are not always definite and are frequently obscure. This uncertainty and obscurity is pronounced and unfortunate. Some of the enactments bear the evident marks of an attempt to confer the authority on the county authorities and
Whether this general right to levy a tax to pay a judgment would be always available is not entirely clear. Subsequent legislation puts certain restrictions on the county authorities with reference to the amount of taxes which may be levied in any one year. General Statutes, sec. 2816.
According to this provision, the tax levy for any current year was limited to ten mills on the dollar for ordinary county purposes. Evidently this might ox might not, in any given case, produce a surplus after the payment of any outstanding judgment. We are not concerned with this possible difficulty. Subsequent acts of the legislature have totally changed this general scheme, and have brought about the result which creates our present difficulty. In 1887, the legislature passed an act specifically providing for the levy of taxes to pay judgments against counties. Section 1 of the act reads as follows:
“ That section 7, chapter XXIII., of the General Statutes of the state of Colorado, be, and the same is hereby amended so as to read as follows: Seo. 7. When a judgment shall be given and rendered against a county of this state in the name of its board of county commissioners, or against any county officer, in an action prosecuted by or against him in his
The grant of authority is plain, definite, broad and complete. Taking the granting clauses by themselves, they give the amplest authority to levy a tax to pay a judgment. There can be no possible dubitation concerning it. The same restriction which was expressed in section 527 of the General Statutes is retained here. The judgment creditor may not issue an execution and levy on the property of the county. The legislature still restricted his relief to the levy of a tax which might be applied to this purpose. The county commissioners are not necessarily limited to the exercise of this power. According to this act, the board can levy a tax, or it may pay the creditor by a warrant drawn on the treasury. This is on the assumption that there is money in the treasury, not otherwise appropriated or disposed of, which the board sees fit to apply to the liquidation of any such claim. There would of necessity be no money in the treasury which could be thus used, unless the restricted levy of ten mills should produce a sum which would exceed the ordinary expenses of the county. This might often happen. Cases might arise where there would be money in the treasury if the board had levied a tax to the full limit of their authority and the proceeds had gone into the county treasury. No such fact exists. The petition avers there was no money in the treasury which could be applied to the payment of the judgment. On demurrer this must be taken to be true, and we thus have a case where there is no money properly applicable to the payment of the judgment in the county treasuiy, and where the only relief the creditor can obtain is through the exercise of the authority to levy a tax. There is still another consideration arising from a subsequent act of the legislature which is of very great significance, force and import in compelling this court to follow the precedents which will be cited. As has already been stated, up to 1887 the county had the right to levy a ten mills tax for ordinary county purposes, and de
“ Section 5. There shall be levied and assessed * * * for state purposes * * *; for interest and payment on county bonds * * *; for support of schools * * *; for ordinary county revenue such rate as will be sufficient to defray the ordinary county expenses.” * * * Session Laws, 1891, page 289. •
It can therefore never happen that there will be in the county treasury any funds on which a warrant can be drawn to pay the judgment creditor. It must be assumed the board will obey the legislative command and levy only such taxes as shall produce a sum adequate to pay the estimated and probable current operating expenses of the county. The averment that there was no money in the treasury applicable to the payment of this judgment may not only be accepted as true by the admissions of the demurrer, but must be taken to be legally and presumptively true because of this legislation. Under these circumstances the creditor can never be paid unless the county authorities shall levy a tax to satisfy the judgment. It is impossible otherwise to get any funds into the treasury which shall be legally and legitimately applicable to this specific object. That the purpose is a legitimate one must be conceded, because the act of 1887 expressly confers on the board the authority to levy a tax to pay such debts. Considering only the terms in which the authority is granted, and regarding only the fact that the creditor is- such by judgment, and therefore entitled in law to his money, everybody would concede the duty to perform was thereby laid on the board. The only possible answer to the decision is derivable from
These and many other authorities hold the indebtedness represented by a judgment to be conclusively established by the formal entry. It therefore follows Rollins had a claim which the county could not impeach or attack because of the character of the indebtedness on which it was entered. The ancillary right of enforcement is a legitimate deduction from these facts and this law, providing the discretion which the act attempted to give the authorities is no bar to proceedings by mandamus to compel the levy of the tax.
This question has been so often and so uniformly adjudged in favor of the judgment creditor as to require no argument to demonstrate it, and scarcely the citation of an authority to support it. Ever since the early case of Supervisors v. United States ex rel., 4 Wall. 435, it has been uniformly adjudged words like those contained in this statute do not confer a discretion which permits the board to levy a tax to pay a judgment or to refuse to levy it, as they may deem fit. In all statutes of this description, the word “may” is interpreted to mean “ must.” The permission is regarded as equivalent to a mandate wherever the public interests or the rights of third persons are concerned. The discretion only exists where there are no third parties, either the public or persons, to be injuriously affected by its exercise. This matter has been settled by a long line of authorities that may be found in all the text-books which treat of this matter. Dillon’s Mun. Corp., vol. 1, sec. 98 ; Endlich Intp. of Statutes, sec. 147; Sutherland on Statutory Construction, sec. 460, et seq.
Following this well established rule, we are compelled to conclude the proviso in the statute does not bar the application, and the judgment creditor, being otherwise remediless, may invoke the power of the court to issue a mandamus to
We are aware of a recent decision in the circuit court of appeals of the eighth circuit (Board of Commissioners of Grand County v. King, 67 Fed. Rep. 202) which is opposed to this doctrine. We have read the opinion with a great deal of care, and while we do not concur in its reasoning as applied to the case at bar, and possibly not as applied to the case which was decided, our difference springs mainly from a consideration which evidently was not present to the mind of the eminent judge who wrote the opinion, or to the court which indorsed it. Unless we have attached unusual and unwarranted force to the subsequent legislation, we must conclude the act of 1891 was not called to the court’s attention. Our first difference with the distinguished court is with reference to the defect which is pointed out in the pleading. We do not understand the court to put its decision on this ground, or to have reversed the case because the plaintiff failed to allege the cause of action stated in the suit wherein his judgment was recovered. The court simply say they are unable to determine from his pleading whether the judgment was rendered on warrants issued for the general current expenses of the county, and therefore matters as to which the board of county commissioners might have some discretion. The reversal is not put on that basis. Stated as a principle of pleading, we cannot concede its accuracy. The suit is brought on a judgment. The judgment imports verity. According to the decision of the supreme court of the United States, cited supra, it cannot be collaterally inquired into. Why a plaintiff who sues on a judgment to compel a board to levy a tax should state the cause of action which has resulted in his judgment is not clear to our apprehension. Since the court did not put its reversal on that ground, we are not compelled to do otherwise than express our want of assent to the proposition. We can quite readily see that there may be a suggestion of legal accuracy in the discussion, and that it may contain the germ
For similar reasons we are inclined to withhold our assent to the proposition that, because the discretion may be exercised in either one of two ways, — either by the levy of a tax,
We therefore conclude there is by the statute, in the absence of the suggested defense, or any other equally available one, no such discretion vested in the board as will, as a matter of law, defeat the petitioner’s right to the peremptory mandate.
The objection based on the character of the demand we do not regard as well taken. The code provides for the issuance of the writ, and prescribes the general form and
We therefore hold the court erred in sustaining the demurrer and dismissing the plaintiff’s proceedings. The judgment will accordingly be reversed and remanded for further proceedings in conformity with this opinion.
Reversed.