61 Mo. 155 | Mo. | 1875
delivered the opinion of the court.
This was an application for a writ of mandamus by the relator against the defendants as trustees of the town of Pacific, to compel them to pay certain warrants drawn by the town authorities, and in case there should be no money in the treasury, then to levy a tax to pay the same.
The petition does not show for what purpose the warrants were drawn, but on their face they are made payable out of any money appropriated for street work, and they are made to bear interest at the rate of ten per cent, per annum from their date.
The general rule is that mandamus will not lie to compel the levy of a tax for the payment of warrants drawn on the treasury of a municipal corporation before the warrants have been reduced to judgment. (State ex rel., etc. vs. Clay Co., 46 Mo., 231; State ex rel., etc. vs. Bollinger Co., 48 Mo., 475.) And a reduction of the demand to a judgment is contemplated by the statute in all such cases, for it provides that whenever an execution issued out of a court of record in this State, against auy incorporated town or city, shall be returned unsatisfied in whole or in part for want of property whereon to levy, such court, at the return term or any subsequent term thereof, may, by writ of mandamus, order and compel the chief officer, trustees, council, and all other proper officers of such city or town, to levy, assess and collect a special tax to pay such execution and all costs. (Wagn. Stat., p. 617, § 77.)
A distinction has been taken in the application of the rule between cases where the duty devolving upon the municipal authorities is merely a general duty of providing for the payment of all indebtedness against the municipality, and cases where a special duty is made obligatory upon the corporate authorities to levy and collect a tax for a particular purpose, or to meet an obligation created by a-special law, and it has been-held in the former class of cases that mandamus would not lie, bu-t that in the latter the courts might interpose and afford that remedy. (High. Extr. Leg. Bern., § 369.)
In the present case no special power or particular obligation is shown, and the relator’s claim is presented simply in the attitude of an ordinary indebtedness, and is not distinguishable from the usual warrants drawn by municipal authorities.
Again, interest is demanded on the warrants from their date at the rate of ten per cent, per annum. We cannot find any thins? in the charter of the defendants, s-ivino- them
The writ asks for alternative relief, that the defendants may be compelled to either pay the warrants or to levy a tax to pay the same. These acts are distinct in their nature, and the defendants may not know which to perform. The rule is well settled that the mandatory clause of the writ should expressly and clearly state the precise thing which is required of. the defendants. (People vs. Brooks, 57 Ill., 142; State vs. City of Milwaukee, 22 Wis., 397; High Extr. Leg. Rem., 539.)
It follows that the court committed no error in sustaining the motion to quash, and its judgment is affirmed.