40 F. 799 | U.S. Circuit Court for the District of New Jersey | 1889
Prom tho recital in the peremptory writ of mandamus sued out in this cause, it appears that the relators, Charles Moran, D. Comyn Moran, and Amandeo D. Moran, on the 9th of June, 1888, in the circuit court of the United States for the district of New Jersey, recovered a judgment against tho city of Elizabeth for the sum of $9,802.12 debt, and $57.98 costs of suit; that said judgment was rendered against tho city of Elizabeth for interest due by it to said relators upon bonds of the said city, held and owned by them; that a writ of execution was duly issued out of said circuit court upon said judgment against the said city of Elizabeth, directed to the marshal for said district of Now Jersey; that said writ was returned unsatisfied, there being no property belonging to the said city sufficient to satisfy said writ; that a copy of said writ of execution was duly served by the marshal of the district upon the defendant; that there were at that time eight vacancies existing in the board of assessment and revision of taxes for sa,id city of Elizabeth, on account of the resignation or failure to qualify of tho persons theretofore elected as members of said board; that the said board constitute the only assessors of the city of Elizabeth, who are, by law, required to assess tlie taxes in and for said city; that it was tho duty of the city of Elizabeth and the board of assessment and revision of taxes to assess
This writ was duly served upon the mayor, the comptroller, the treasurer, and the common council of the eit}'' of Elizabeth on May 10,1889. No service was made upon the board of assessment and revision of taxes. The only return made to the writ is by the common council, and it is to the effect that the common council have elected certain persons, naming them, to fill vacancies in the board of assessment and revision of taxes. There is no pretense that the amount due the relators upon their judgment, or any part thereof, has been, by either of the defendants, assessed or levied, collected or paid over to them. It further appears, in the testimony taken on this rule to show cause, why the defendants should not be attached for non-obedience, that although the writ of peremptory mandamus was served upon the common council on May 10, 1889, no steps were taken to obey- its mandate “to fill forthwith any vacancy in the board of assessment and revision of taxes” until September following, at which time the persons named in the return were elected; that not one of the persons so elected has taken the required oath of office, or in any wise legally qualified himself to perform the duties so cast upon him, but, on the contrary, each has neglected or refused so to do. It is alleged that this neglect or refusal was the result of a combination or conspiracy to avoid the performance of the act commanded by the writ of mandamus. '
A motion is now made on behalf of the relators to attach the defendants as for a contempt, because of their failure to obey this writ, and it is claimed that their disobedience arises in two respects: First, in not “assessing and levying, in addition to the regular taxes, the amount due upon said relators’ judgment and execution, with interest to the time when the same shall be paid to the United States marshal for said district of New Jersey, with costs of these proceedings, to be assessed and levied according to the form of the statute in such case made and provided;” and, second, by failing “to fill forthwith any vacancies existing in said board of assessment and revision of taxes for said city of Eliza-
it will be noticed that this writ is directed to the mayor, the comptroller, and the treasurer of the city of Elizabeth, as well as to the common council and the board of assessment and revision of taxes. The duties commanded to bo performed are the “assessment and levying of a tax,’’ and the “filling of vacancies” in one of the municipal boards. The “mayor,” the “comptroller,” and the “treasurer” of the city of Elizabeth are statutory officers, exercising powers, and performing duties, clearly defined and limited by tho charter of the city, or by acts supplementary thereto. Unless within them can be found, clearly and uudisputably expressed, the power necessary to an obedience of this writ, it must ho held that such power has not been granted. It will hardly be contended that the broadest construction possible of these statutes will result in the finding of any authority vested in the officers named to “levy taxes” or “fill vacancies.” On the contrary, the power to perform these municipal acts is, by the charter of the city of Elizabeth, expressly vested elsewhere; and, had these officers attempted to obey this writ in those respects, they would undoubtedly have been guilty of an assumption of power not granted to them, expressly or by implication, and by such usurpation would have rendered themselves liable to impeachment, and to criminal indictment. As to these officers, therefore, this writ must be hold to be nugatory. The law nover seeks to command the impossible, and it has always been held by the courts of this country, as well as by those of England, that “impossibility of obedience” is a good and sufficient return to a writ of mandamus. Shortt, Mand. 390; Rex v. Roand, 4 Adol. & E. 139; Rex v. Railway Co., 1 El. & Bl. 372, 381; State v. Perrine, 34 N. J. Law, 254; High, Extr. Rem. c. 1, § 14.
So far, then, as this motion to attach as for contempt affects the* “mayor, the comptroller, and tho treasurer” it is denied, but without costs. And I think it proper to say that costs are refused to these do-■fendants because they are, perhaps, guilty of a technical disobedience of the writ in failing to make any return to it. As their intention was to justify their failure to obov its mandate by showing an absoluto and inherent want of power, the better practice requires that such justification should be made to appear, not orally, but in a formal return to the writ itself. However, as no harm has come to the relators from the ladies of the defendants in this respect, I will permit such return to be made, in this case, nunc pro tunc.
The charge of disobedience made against the common council of the city of Elizabeth rests upon a very different basis. The allegation is that the common council is possessed of ample power to “levy taxes,” and to fill vacancies in the “board of assessment,” yet absolutely refused or neglected to obey the mandato of the writ in these respects. If the allegation he well founded, tho defendants, who are members of the common council, are guilty of disobedience as charged. The common council is tho legislative body of tho municipality. It derives its existence from the charter of the city, and by that charter it is endowed with great and
The defendants insist that, granting that such potver Avas originally vested in the common council, it has been taken aAvay from it by “A supplement to the charter of the city of Elizabeth,” approved April 2, 1869. This supplementary act provides “ that, for the purpose of assessing taxes required by law to be levied in the city of Elizabeth, and revising the same, a board of commissioners is hereby constituted, to be known and designated as the ‘Board of Assessment and Revision of Taxes in the City of Elizabeth;’” and the insistment is that this board, solely, has the power to levy and assess, by way of tax, moneys to meet the indebtedness of the city, and hence the failure of the common council to obey the writ of mandamus in this respect is excusable from Avant of poAver. I do not so construe the act. This supplementary act changes the charter of the city in one important respect only: whereas, theretofore, assessors of taxes AA'ere simply Avard officers, and acted, in assessing city property, independently of each other, thereafter they were officers of the city at large, and acted in all things jointly, as a board. No part of the charter of the city was repealed by this supplement, save
The other alleged disobedience of this writ consists in the failure of the common council “forthwith to fill any vacancy ” existing, or which may exist in the board of assessment and revision of taxes. The return to the writ made by the common council sets forth, in hwc verba, “that they have elected the following persons to fill the vacancies in the hoard of assessment and revision of taxes,” naming them. The testimony taken cm this motion shows that the writ was served on May 10, 1889, upon the common council, and it was not until the 2d day of September following that any positive action was taken looking towards tice filling of the vacancies in the hoard of revision. It is true that the writ of mandamus was, at the meeting of council held on May 10th, referred to the “law committee and city attorney.” But for what purpose such reference was made does not appear anywhere in the case. It is to be presumed that the council desired some information, or, perhaps, legal opinion, as to their duty and their course of action. I see nothing specially improper in making such reference, if that was its object. The writ commands action “forthwith,” but “forthwith” does not, in this connection, mean that the act commanded must' be performed “instantly,” but rather that the defendants must set about the performance-of the matter com
■ If, therefore, this reference of the writ, upon its service, was made in good faith, and the law committee and city attorney had promptly made their report, and the common council had, upon that report coming in, acted as it was commanded to. act, although some delay might have thereby been occasioned, I should have held it not unjustifiable, and the action of the common council would be accepted as a fair compliance with the mandate of the court. But the testimony in this case shows a very different state of facts. The Writ of -mandamus was granted after argument before the court, in which the city attorney took part. All the facts, and the principles of law involved, were well known to him, at least, if not to the law committee. It could not require much time to advise council upon their rights and their duties. The writ is precise and explicit in its terms. The simple reading of it would have made its mandate clear to every member of the council. And yet no action whatever looking to obedience was taken at the regular or special meetings of the common council held on June 1st, June 15th, June 27th, July 1st, July 24th, August 1st, and August 15th. At none of these meetings was any request made that the law committee should report on this subject, so that proper action could he taken. No call for advice and counsel, as to the duty enjoined, from the city attorney; in fact, as the clerk of the common council testifies: “No action whatever was taken by the common council between May 10,1889, and September 2,1889, to fill the vacancies in the board of assessment.” I cannot regard this conduct in any wise excusable. Nor, indeed, is any attempt made to justify it, and, unexplained as it is, it calls for the censure of the court.
On the argument of this motion, counsel for the defendants drew the attention of the court to an act of the state of New Jersey approved March 27,1878, entitled “Supplement to an act entitled ‘An act respecting executions,’” and the contention was that by this act the power to assess and levy moneys in municipal corporations to satisfy an execution against such corporation was exclusively vested in the assessors for taxes in and for such corporation. The act, certainly, is very broad. I do not doubt that it applies to judgments recovered in the courts of the United States for the district of New Jersey, by virtue of sections 914, 916, Rev. St., and had the attention of the learned judge, who, sitting in this court, allowed this peremptory writ, been called to it, it is doubtful if the writ would have been granted, without evidence that the provisions of this statute had been followed with strictness. It presents a simple and efficacious remedy for the collection of claims by the judgment creditors of a municipal corporation, and as such it demands and is.entitled to strict enforcement by the courts. But I cannot agree with counsel that this remedy is exclusive, as to the levying of the amount necessary to be raised by a municipality to satisfy a writ of execution sued out against it. It does not, either in terms or by implication, debar municipalities from levying moneys for such purpose in the same manner and through the same agencies as heretofore. It simply puts upon the assessors of