124 F. 124 | 8th Cir. | 1903
This writ of error was sued out to reverse a judgment of the court below which denied the prayer of the relator, Chester B. Masslich, for a mandamus commanding the mayor and council of the city of Beatrice to levy a tax upon the property in that city to pay that portion of a judgment which he had obtained against it, to the payment of which there were no funds in the city treasury applicable. The case is before us upon a petition, an answer, and a special finding of facts. No ruling upon the admission or rejection of evidence is challenged, and the only question for consideration is whether or not the judgment of the court is sustained by the facts found by the circuit court. That court refused to issue the mandamus for a levy of the tax upon the ground that no demand for such a levy had been made upon the mayor and council of the city before the petition for the writ of mandamus was filed, and this is the ruling of which complaint is here made. The facts which condition the answer to the question thus presented, as they are disclosed by the admissions of the pleadings and the finding of facts, are these: On September 8, 1899, the relator recovered a judgment in the court below against the city of Beatrice for $9,415.29. On April 22, 1901, his judgment was affirmed by this court. The city has no property subject to execution, and the relator has no adequate remedy in the ordinary course of the law to enforce the collection of his judgment. On June 10, 1901, a motion for a rehearing was denied by this court, and on July 6, 1901, its mandate which recited the affirmance of the judgment was filed in the Circuit Court. This judgment was based upon seven classes of bonds. There was sufficient money in the treasury of the city applicable to the payment of the bonds of the relator belonging to two of these classes to pay them, in full, and there was sufficient money in the treasury applicable to the payment of the bonds which belonged to four of the other classes to pay them in part. In this state of the case, the relator, as the court below finds—
“Made due and formal demand for the payment of said judgment upon the said Saunders, as treasurer of the city of Beatrice, and upon the said mayor and council, and such demand was refused; that the demand upon the treasurer was made on June 19, 1901, and the demand upon the mayor and council on June 26, 1901, at a regular meeting thereof; that afterwards, and at the same session, said mayor and council adopted estimate for the expenses of the annual appropriation bill and the annual tax ordinance of said city, and on July 23, 1901, adopted the annual appropriation ordinance of*126 said city, but that no provision for tbe appropriation of any money or tbe levy oí any tax for tbe payment of the said judgment, or any part thereof, was at any time made bj' said mayor and council.”
Upon consideration of these facts the Circuit Court issued a peremptory writ of mandamus to the city treasurer, the mayor, and the council of the city,, commanding them to pay over to the relator the money in the treasury applicable to the payment of the bonds upon which his judgment was based, but refused to direct them to levy a tax to pay that portion of the judgment which would remain unpaid after this application of the money, because, in its opinion, the relator had not made a proper demand for the levy of such a tax.
In the enforcement of judgments of the national courts against municipal and quasi municipal corporations, the writ of mandamus is the legal substitute for the writ of execution to enforce judgments against private parties. The plaintiff in a judgment of the former class has the same right to the issue and enforcement of a mandamus commanding the proper officers of the defendant corporation to make suitable provision for its payment that the plaintiff in a judgment of the latter class has to the issue and enforcement of a writ of execution. In re Nevitt, 117 Fed. 449, 454, 54 C. C. A. 622, 628; Lafayette Co. v. Wonderly, 92 Fed. 313, 316, 34 C. C. A. 360, 363; Dempsey v. Oswego Tp., 51 Fed. 97, 99, 2 C. C. A. 110, 112.
Of course, neither a mandamus nor an execution may require the officer or officers to whom it is addressed to do any act which he or they have not lawful authority to do. But the legal duty is always imposed upon them to exercise all the authority with which they are invested to collect the judgments upon which such writs are issued, and the courts may and should command and enforce the performance of this duty. Whatever public officers are empowered to do for the beriefit of private citizens the law makes it their duty to perform whenever public interest or individual rights call for the performance of that duty. Supervisors v. United States, 4 Wall. 435, 446, 18 L. Ed. 419; City of Little Rock v. United States, 103 Fed. 418, 424, 43 C. C. A. 261, 267.
The statutes of Nebraska provided that, whenever any judgment was obtained against a city of that state, it should be the duty of its council or other corporate officers, as the case might require, to make provision for its prompt payment (Comp. St. 1901, § 4488); that, if the ordinary revenue was insufficient to pay the current expenses of the municipality and any unpaid judgment, it should be the duty of such officers “to at once proceed and levy and collect a sufficient amount of money to pay off and discharge such judgments” (section 4489); that the tax should be levied on all the taxable property in the city bound by the judgment, and should be collected as other taxes, were collected (section 4490); that such officers should also be required to levy a special tax for the payment of judgments (section 4491); that if such officers should “fail, refuse or neglect to make provisions for the immediate payment of such judgments after request made by the owner,” he might have a writ of mandamus “to compel the proper officers to proceed to collect the necessary amount of money to pay off such indebtedness” (section 4492). These pro
There is another branch of this case which has been earnestly called to- our attention, and which perhaps deserves consideration.
It is conceded that the writ of mandamus issues only to compel the discharge of a duty which the officers to whom it is directed are empowered by statute or by law to perform, and that the mere rendition of a judgment against a municipality, in the absence of statutory or legal provisions to the contrary, does not vest the officers of a municipality with power to levy a general tax to pay it. City of Little Rock v. U. S., 103 Fed. 418, 420, 43 C. C. A. 261, 263; U. S. v. Macon Co., 99 U. S. 582, 589, 25 L. Ed. 331 ; Supervisors v. U. S., 18 Wall. 71, 77, 21 L. Ed. 771; U. S. v. Clark Co., 95 U. S. 769, 24 L. Ed. 545.
But the power of the officers of a municipality to levy sufficient taxes to pay its bonds is a legal inference from the authority of the city to issue the bonds, in the absence of any limitation or inhibtion of this authority in the act which grants the power, in the general law, or in the Constitution. Loan Ass’n v. Topeka, 20 Wall. 655, 660, 22 L. Ed. 455; U. S. v. New Orleans, 98 U. S. 381, 393, 25 L. Ed. 225; Ralls County Court v. U. S., 105 U. S. 733, 735, 736, 26 L. Ed. 1220; U. S. v. Clark Co., 96 U. S. 211, 24 L. Ed. 628; Commonwealth v. Commissioners of Allegheny Co., 37 Pa. 277, 290; Lowell v. Boston, 111 Mass. 454, 460, 15 Am. Rep. 39; Hasbrouck v. Milwaukee, 25 Wis. 122.
The city of Beatrice had the power, under the Constitution and statutes of that state, to issue the district bonds upon which that portion of the judgment now under consideration is founded. The judgment against the city upon them has put that question at rest. The legal presumption- therefore arises that the officers of, the city
But this is not all. There is no limitation in the act of 1887 upon the power of the officers of cities to levy general taxes to pay district bonds. It is undoubtedly competent and practicable for a city to agree with the holders of the bonds it issues for internal improvements that it will not be liable for their payment, and that the only recourse of their owners shall be to the moneys raised by special assessments upon the property benefited. The reason why such agreements are not found either in the statutes or the bonds which are used for the purpose of raising money to make these improvements is not far to seek. Cities issue such bonds to raise money, and bonds which contain such stipulations, or which are issued under statutes which contain such agreements, are not as available for the purpose of raising money as the plain promises of the cities to pay. Investors are not so ready to purchase the former as the latter. There was no such stipulation or limitation in the bonds here in issue, nor in the act under which they were sent forth. That act provides, in subdivision 58 of section 52 of article 2, that the mayor and council of the city
If the intent of the legislators had been to limit the remedy of the bondholders to the special taxes-, they would surely have provided some way by which the amount of the bonds and the interest upon them could be collected from the specific taxes authorized to be levied. There is no such provision, and the terms of the act are such that the amounts that may be lawfully collected by the special taxes can never be made to correspond with the amount of the principal and interest of the bonds issued for the cost of the improvement. These bonds may be made payable at any time within 10 years from their date, and they may draw interest at 7 per cent, per annum. Suppose they are made payable 9 years after their date. The entire cost of the improvement must be levied upon the abutting property at one time, but collection of only one-tenth of it may be enforced in any single year, and the deferred payments draw but 7 per cent, interest per annum. If all the owners of the property' pay their taxes just before they become delinquent, there will be a deficiency of interest, because the entire cost of the improvement draws interest from the city, in the form of the bonds, while the city receives interest only on the deferred payments of the taxes. Again, the statute provides that any property holder may pay his share of the cost of the improvement within 50 days from the levy of the tax. Suppose that all the owners of property elect to pay within the 50 days. Their property is then “exempt from any lien or charge therefor,” the statute declares. But the city has received an amount equal
Moreover, a city is not required to issue these districts bonds when an internal improvement is made, under the act of 1887. It may pay the cost of the improvement, and subsequently obtain reimbursement from the special taxes, or it may issue the district bonds, use the money to pay for the improvement, and then put the amounts collected from the special taxes in the sinking fund to meet the bonds. If it adopts the former course, it charges itself and all the taxable property within it with a liability to pay the cost of the improvement the moment it makes the contract for it. It pays that cost, and trusts to the collection of the special taxes during the succeeding 9 years for. reimbursement. If it pursues the latter course, it charges itself and all the taxable property within it, in the same way, with liability to pay the cost of the improvement when it makes the contract. It issues the district bonds, charges itself and all the taxable property within it with liability to discharge its express promise to pay them, pays the cost of the improvement with the proceeds of their sale, and then seeks to recover a portion of the money to pay the bonds from the collection of the special taxes. In either case the faith and credit of the city are necessarily pledged in the first instance to pay the cost of the improvement, and in the latter case to pay the bonds issued to discharge the primary liability. In neither case can the remedy of the creditors, whether they are contractors to make the improvements or the holders of the district bonds, be limited to the special taxes upon the abutting property, in the absence of an express stipulation to that effect in the contracts or in the bonds, or in the law under which the contracts and bonds are made. U. S. v. Ft. Scott, 99 U. S. 152, 159, 161, 25 L. Ed. 348; Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659.
Not only this, but there are other and general provisions of the statutes of Nebraska which grant to the officers of this city plenary power to levy taxes upon all the taxable property within its limits to pay these bonds. Those statutes empower these officers “to levy taxes for general revenue purposes not to exceed fifteen mills on the dollar in any one year on all property within the limits of said city taxable according to the laws of the state of Nebraska” (Comp. St. 1887, c. 14, art. 2, § 52, subd. 1); “to levy any other tax or special assessment authorized by law” (subdivision 2); “to make provision for a sinking fund to pay accruing interest, and to pay at maturity the principal of the bonded indebtedness of the city, and to levy and collect the taxes on all the taxable property in the city, in addition to other taxes, for the purpose of paying the same, and to provide that the said tax shall be paid in cash; and whenever any city has heretofore issued bonds by virtue of any special authority derived from the Legislature of the territory or the state, the council shall have power to levy and
District bonds of a city issued under subdivision 58, § 52, art. 2, c. 14, Comp. St. Neb. 1887, section 1282c (subd. 55, Comp. St. 1901), which contain no stipulation limiting the recourse of their holders to special taxes, create a general liability of the city which issues them, and its officers are empowered and required to levy and collect taxes upon all the taxable property within it, under subdivisions X, 2, and 19 of section 1282c, Comp. St. Neb. 1901, for the purpose of paying the bonded indebtedness they evidence.
When a judgment has been rendered against a city upon such bonds, the power is granted to its officers, and the duty is imposed upon them, to levy and collect general taxes to pay that judgment, by sections 4488, 4489, 4490, 4491, and 4492, Comp. St. Neb. 1901. The bonds here in controversy were lawfully issued by the city of Beatrice under subdivision 58, § 52, art. 2, c. 14, Comp. St. Neb. 1887. They contain no limitation of the liability of the city. Judgment against the city has been rendered upon them, and the respondents, the officers of this city, are vested with the power and charged with the duty to levy and collect sufficient taxes upon all the taxable property within the limits of the city to pay this judgment.
The other objection of counsel for the respondent to the issue of the mandamus is unworthy of serious consideration. It is that the relator did not plead and prove that the tax which he asked the officers of the city to levy was not without some constitutional or statutory limitation which he neither pleaded nor specified. The judgment against the city and the demand for its payment imposed upon its officers the duty of making a levy of a general tax to pay it. The judgment and the demand established a perfect cause of action for a writ of mandamus against the respondents under the statutes which required them to make provision for the payment of the judgment. Deuel Co. v. First Nat. Bank, 86 Fed. 264, 267, 30 C. C. A. 30, 33. If there is any limitation upon the powers granted to them by the statutes which have been recited, it arises upon special facts which have not been pleaded or proved, such as the assessed valuation of the property of the city, and the amount of the necessary levy for current expenses. The limitation has no application to the facts admitted and found in the record before us. In this state of the case the facts regarding the assessed valuation of the property and the necessary levy for the current expenses of the city constitute matter of defense, ■and the silence of the record concerning them is fatal to the respondents. Facts which limit a general liability imposed by statute
That portion of the judgment of the Circuit Court which dismissed so much of the petition of the relator as prayed for the levy of a tax is reversed, with costs, and this case is remanded to the court below with instructions to enter judgment for the relator, and to issue a peremptory writ of mandamus commanding the levy and collection of a tax on all the taxable property in the city of Beatrice substantially as directed in the alternative writ.