Territory of New Mexico ex rel. Parker v. Mayor of Socorro

12 N.M. 177 | N.M. | 1904

PARKER, J.

This was an action of mandamus to compel the levy and collection of a tax by the city of Socorro, to pay certain bonds of the city and certain judgments recovered upon interest coupons. The case was tried upon the alternative writ, the answer, and the proof submitted by the parties. The proofs are not made a part of the record. In the absence of anything to the contrary, this court, of course, must indulge the assumption that every fact necessary to support the judgment was established by competent evidence, and that every fact alleged in the answer, inconsistent with the correctness of the judgment, was fonnd, upon competent evidence, against the defendant. This brings the inquiry within much narrower limits than is discussed in the briefs. The case made by the alternative writ, the findings of fact by the court, and every fact brought in issue by the answer, which are assumed here to be correctly found against the defendant, constitute the case for review.

Upon this record there properly arises the following questions:

1 It is nowhere alleged, either in the writ or answer, under what law the city of Socorro is organized. While we know from our records, that Socorro was organized in January, 1881, under the Act of February 11, 1880 (Prince’s Laws, page 174; Commrs. Socorro Co. v. Leavitt, 4 N. Mex. 37), still we may not be able to take judicial notice of the fact. But, we will be at liberty to look to that act, if necessary, in support of this judgment, in the absence of any showing that Socorro was organized under some other law.

2 It is urged that Socorro is limited, by section 2529, Compiled Laws of 1897, to a tax levy of one per cent for all purposes. But, it is to be observed that this section is section 116, of chapter 39, Laws of 1884, and is limited to cities organized under that act. No such limitation is contained in the act of 1880, but on the other hand it is there provided, that for any debt created, the common council shall add to the tax roll of each year successively a levy sufficient to pay annual interest on such debt, with an addition of not less than five cents on the hundred dollars to create a sinking fund for the liquidation of the principal. Prince’s Laws, page 190, sec. 55. In rendering the judgment the court, we will assume, looked to this act for the power and duty of the city to make the levy commanded.

3 It is urged that this mandamus compels the expenditure of funds in payment of relator’s interest coupons and bonds, which are needed for current expenses. This> if true, it is conceded, is a good defense. But this judgment was rendered to compel the levy of a special tax to be used exclusively to pay the city’s bonds and interest, and is wholly disconnected from any levy for current expenses. It does not attempt to appropriate any funds which are to be raised or could be used for current expenses.

4 It is urged that this writ was directed to the office and not the officer. No such objection was made below, and if made it would have been unavailing. Commrs v. Sellew, 99 U. S. 624; Thompson v. U. S., 103 U. S. 480; High on Extraordinary Legal Remedies, secs. 337, 442, 443 and 543.

5 It is objected that mandamus will lie only after judgment on the bonds. It is to be noted that the only denial of the validity of these bonds consists in stating in the answer, that no ordinance was passed providing for the levy of a tax for their payment, as is provided by the sixth subdivision of section 2402, Compiled Laws of 1897. This section is a part of the act of 1884, and no such requirement is to be found in the act of 1880. And, in the act of 1884, section 105, it is provided:

“Every city or town incorporated previous to the taking effect of this act, which shall choose to retain such organization, shall, in the enforcement of the powers or the exercisé of the duties, conferred by the special charter or general law under which the same shall be incorporated, proceed in all respects as provided by such special charter or general law.”

It is not denied that the bonds were issued or that the city owes them, or that the relator was the legal holder thereof, and it is admitted that for ten years the city had been levying the very tax which it now refuses to levy. The only denial of the validity of the bonds is based upon a misunderstanding of the requirements of the law in regard to their issue. This question of law can as well be settled in a mandamus proceeding as in any other. No question exists as to the validity of these bonds which either party has a right to insist upon having tried and settled by judgment, before resort to mandamus is had. The erroneous assumption as to the law being disposed of against defendant, it may be said to admit their validity. Under these circumstances, mandamus will lie to compel a tax levy, without first reducing the bonds to judgment.

6 Defendant complains that relator owns only 34 out of a total issue of 60 of these bonds, and is seeking to appropriate the entire levy to his demands, to the exclusion of other bondholders. This is a matter of which the city can not complain. The other bondholders, if any (and we might assume in this case that the court found as a fact, there are none), will be at liberty to avail themselves of this tax levy and have the proceeds marshaled and equitably distributed to all bondholders. Galena v. U. S., 5 Wall (U. S.) 705.

We find no error in the record and the judgment will be affirmed, and it is so ordered.

Mill, O. J., Baker, and McFie, JJ., concur. Pope, J., did not participate in this decision.