60 Kan. 122 | Kan. | 1899
The opinion of the court was delivered by
Thi^is a proceeding against the mayor and councilmen of the city of Erie to compel them to levy taxes to pay a judgment rendered by the district court of Crawford county in favor of David Wilson, the plaintiff’s intestate, against the city of Erie, which was affirmed by this court. (City of Erie v. Phelps, 56 Kan. 185, 42 Pac. 336.) It -appears from the agreed statement of facts that an execution on the judgment has been issued and returned wholly unsatisfied ; that
“1st. To levy and collect taxes for general-revenue purposes, not to exceed ten mills on the dollar in any one year, on all the real, mixed and personal property within the limits of said cities taxable according to the ■laws of this state.”
“ § 75. At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city as shown by the assessment books of the preceding year.”
“ § 78. The council may appropriate money and provide for the payment of the debts and expenses of the "city, and when necessary may provide for issuing bonds for the purpose of funding any and all indebtedness now*124 existing or hereafter created of the city, now due or to become due. . . ' (Gen. Stat. 1889, ¶ ¶ 959, 965, 960.)
The power to issue bonds is restricted, however, by the succeeding provisions of the last section, and requires instruction by vote of the electors of the city as a condition precedent to their issuance. By other statutory provisions it is made the duty of the city officers to levy taxes annually to pay interest and principal on all bonds of the city. /
Construing all these provisions together they amout to this, that for general-revenue purposes the tax levy is limited to one per cent. For all city purposes it is limited to four per cent. The four-per-cent, limitation has no reference to state, county or any other than city taxes. The council is authorized by section 78 to provide for the payment of the debts of the city. A judgment is of course a debt. Can it be said that it is optional with the council to provide for its payment or not, as it may elect? There would seem to be very little advantage in going to the trouble and expense of obtaining a judgment against the city if no provision for its payment can be compelled. Of course there must be legislative authority before a tax can be levied. While the language of section 78 is in form permissive, it is a rule of very general application that where public authorities are authorized to perform an act for the benefit of the public,,or for an individual who has a right to its performance, the w.ord “may” is interpreted as meaning “must.” The language of the statute is that the council “may” provide for the payment of the debts of the city. .The creditors are lawfully entitled to payment. It is, therefore, not optional with the city officials whether they will or will not provide for their payment, and
The statute allows the city the. option of issuing bonds and funding the debt. This option cannot be exercised by the council without the authority of a vote of the people; but the existence of the option does not destroy the plaintiff’s rights. The city must pay. It may fund by issuing bonds, but, if it do so, taxes must ultimately be levied to pay the bonds. It merely amounts to a postponement of the time of payment. The assessed valuation of the city is not sufficient to admit of the payment of the judgment by one levy within the limits allowed by law. Three per cent, in addition to the levy for general-revenue purposes might be made ; this, however, would make the rate of taxation very high. There is some measure of discretion in awarding writs of mandamus, and they ought not to be allowed to operate .oppressively. We think that a levy of two per cent, per annum for the purpose of paying this judgment, in addition to the levy for general-revenue purposes, is as much as ought to be required, but this must be continued each year until a sufficient amount has been raised to discharge the judgment. As it is now too late to levy taxes for the year 1898 and too early to levy them for the year 1899, the city will be'granted until the 1st of June, 1899, to exercise its option of paying the judg