15 Wis. 30 | Wis. | 1861
By the Court,
This was an application for a writ of mandamus, to compel tbe common council of Madison to levy a tax for tbe purpose of paying a judgment wbicb tbe relator has recovered against tbe city in tbe District Court of tbe United States for tbe district of Wisconsin. Tbe counsel for tbe city moved to quash tbe alternative writ. No question was made as to tbe validity of tbe judgment, and disposing of tbe case upon tbe questions raised, we can see no good reason for granting tbe motion.
Tbe use of tbe writ of mandamus to compel corporate authorities to levy a tax, tbe levying of wbicb is a specific duty imposed upon them by law, and in respect to wbicb they have no discretion to exercise, is well established, and indeed was not questioned. Commonwealth vs. Councils of Pittsburg,
If the federal court had jurisdiction in a suit against the city and could render a valid judgment against it, then it must be assumed that the law imposed on the council the duty of collecting a tax to pay such a judgment as well as any other. And whenever the state itself imposes on its own officers specific duties in respect to judgments, that is a good reason why the state courts should compel a performance of those duties. It does not become the court to be more scrupulous in respect to enforcing a performance of the duty, than the state was in creating that duty in the first place.
For these reasons we think the motion to quash must be overruled, with costs.
The defendant afterwards filed a return to the alternative writ, to which the relator demurred. The facts stated in the return appear sufficiently from the opinion of the court sustaining the demurer. The demurrer was argued by S. U Pinney for the relator, and by J. C. Hopkins for the city.
By the Court,
The denial that judgments were recovered as stated in the relation, is altogether defective. The return is, that the respondehts have “ no knowledge thereof sufficient to form a belief, and therefore they deny
Tbe excuses for not levying and collecting tbe amount of tbe judgments when requested.by tbe relator — as that taxes were levied in tbe years 1857 and 1858 to pay tbe interest for which tbe judgments were in part recovered — that about two-tbirds only of tbe taxes were paid, and for tbe residue tbe property chargeable therewith was returned delinquent to tbe treasurer of tbe county of Dane, and by him sold, and purchased by tbe county — that tbe county hitherto has been and now is indebted to tbe city on account of said taxes in a sum greatly exceeding tbe amount of tbe judgments — that it transferred to tbe city, in part payment thereof, a large number of certificates for the land so sold, which tbe city now holds and which exceed in amount the sum due upon tbe judgments — that many of tbe tax payers, owing in tbe aggregate about $5,000, have refused to pay tbe taxes of 1857, and instituted suits to restrain, and have restrained tbe sale of their property, which suits are still pending and undetermined — that by reason of the unpaid taxes and tax certificates on band, tbe levy of another tax to pay the interest is unnecessary — that it would be oppressive and unjust to compel tbe taxable inhabitants who have already contributed their full proportion, to pay again — and that the respondents have no power tore-levy the same — are clearly no answer in law to this application. The financial embarrassments of the city, the disordered state of its revenues and the inconvertibility of its property, constitute no valid reason why the process of the law should not go against it to enforce the payment of debts lawfully incurred. They are circumstances of no greater weight than in tbe ease of a private individual, for whom sucb a defense was never imagined. They may perplex and annoy in tbe case of either; but they can never justify any attempt at repudiating the obligation of contracts, which, in my judgment, would b@
The objection that the council are prohibited by section 8, chap. 256, Laws of 1861 (Supplement to Local Laws, page 345) from levying taxes to pay these judgments, stands on no better foundation. Counsel for the relator insists that the prohibition was not intended to be so applied. For one I cannot agree with him — I think it was. But whether I am right or wrong is immaterial. If it was not so intended, then it does not stand in the way. If it was, then I think it is clearly repugnant to the constitution and wholly void, for the reason that, if valid, it would deprive the relator of every efficient means for collecting his debt. The statute which was in force at the time the debts were contracted, declared that “no property, real or personal, of any inhabitant of the city, or of any individual or corporation, should be levied upon or sold by virtue of any execution issued to satisfy or collect any debt, obligation or contract of the city.” Priv. Laws, 1856, chap. 119, sec. 2. This is still the law. It was likewise provided that no execution should issue upon such judgment but the same, unless reversed, should be levied and collected as other city charges, and when collected should be paid by the city treasurer to the person entitled thereto, upon the delivery of a proper voucher; but if not paid within sixty days after the treasurer is required to make his return of city tax es next after the rendition of the judgment, execution may
The only remaining fact set up in the return is, that the mayor and several of the aldermen named in the alternative writ, have sincé gone out of office, and that others have been chosen and now act in their places. This is no objection. The duty of levying the taxes is perpetual upon the officers named in the writ and their successors; and the peremptory writ may be directed to and enforced upon the mayor and
Demurrer sustained.
Note. — Chapter 256, Local Laws of 1861, authorized the city of Madison to settle its indebtedness upon certain bonds (not issued to aid in the enlargement of the state capitol) by issuing new bonds for an amount not exceeding half the amount due. The 8th section is as follows: “At the time designated for that purpose, the common council of the city of Madison may, annually, levy such axes for the current expenses of the city and for the support of schools as are authorized by law, and shall also levy an amount of taxes for interest upon bonds sufficient to pay the interest for one year on the bonds issued under this act, and upon the bonds issued to aid in the enlargement of the state capitol, but shall levy no taxes for any other purpose whatever.” — Rep.