City of Little Rock v. United States

• Decision Date: 02 July 1900
• Docket Number: 1,421.
• Citation: 103 F. 418
• Parties: CITY OF LITTLE ROCK et al. v. UNITED STATES ex rel. HOWARD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

103 F. 418

CITY OF LITTLE ROCK et al. v. UNITED STATES ex rel. HOWARD et al.

No. 1,421.

United States Court of Appeals, Eighth Circuit.

July 2, 1900

The judgment challenged by this writ of error y this writ of error directs the city of Little Rock, its mayor, clerk, and city council, the plaintiffs in error, to issue and deliver to the relator W. B. Worthen, one of the defendants in error upon payment by him of the legal fees of the mayor and city clerk for issuing them, warrants of that city, in specified sums, to the amount of the principal and interest of a certain judgment against that city which the relator owns and orders the issue of a peremptory writ of mandamus commanding the plaintiffs in error to comply with these directions. This judgment directing the issue of the mandamus was rendered upon a demurrer to the answer of the city and its officers, which had been interposed to the petition of the relators for the writ. The averments of that petition were that on April 20, 1896, the relators Thomas Howard and John W. Harrison recovered a judgment for $29,256.31 and costs against the city of Little Rock; that they subsequently assigned that judgment to the relator W. B. Worthen; that no part of that judgment has ever been paid; and that Worthen has demanded of the plaintiffs in error warrants of the city of Little Rock for the amount of his judgment, and they have refused to issue them. The answer of the city and its officers was that the city had never had any power since 1874, under the constitution of the state of Arkansas, to levy taxes in excess of 5 mills on the dollar of the assessed valuation of the property in the city for any debts contracted since that year; that the debt evidenced by Uorthen's judgment was contracted since 1874; that the city has annually levied a tax of 5 mills since it was contracted; that the revenue thus raised, together with all its other revenue, has always been, and still is insufficient to pay the necessary current expenses of the city; that it has not now, and will not have in its treasury during the coming year, any money in excess of that absolutely necessary for its current expenses; that it is utterly without credit, ability, and authority to borrow money to pay its debts; that the issuance of these warrants will seriously embarrass its financial affairs; that it owes $60,000 that is not evidenced by judgments, and $75,000 in the form of judgments owned by the relator Worthen; and that he is a banker and broker, and pays a large percentage of the taxes of the city of Little Rock. The court below sustained a demurrer to this answer, and directed the issue of the writ of mandamus.

(Syllabus by the Court.)

The writ of mandamus issues only to compel the discharge of a plain duty, which the parties commanded have lawful authority to do.

That which is implied is as much a part of a statute, grant, or contract as that which is expressed.

Under Const. Ark. art. 16, Sec. 10, providing that 'the taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities respectively,' and sections 1002, 1003, 5189, 5130, 5169, Sand.& H.Dig.Ark 1894, a city of the state of Arkansas has power to issue its warrants in payment of its debts.

In the absence of an express limitation in the constitution or statutes of Arkansas of the power of cities to draw warrants to an authority to draw them only against a fund appropriated to pay them, or against money in the treasury, or against money that will come into the treasury within a year after their issue, municipalities of that state, under its constitution and statutes, making municipal warrants receivable in payment of city taxes, have power to issue their warrants to pay just debts when there is no money in their treasuries to pay them, and no prospect that there will be any within a year of their issue.

What public officers are empowered to do for third persons, the law requires them to do. And where a municipality and its officers have the power to pay a judgment against the city by the issue to the owner of the judgment of city warrants which are receivable for city taxes, and have no other way to pay it, it is their duty to issue the warrants, and the writ of mandamus will be granted to compel them to discharge that duty.

Where the owner of a judgment against a city has the right to compel the issue to himself of its warrants in payment thereof, the number of the warrants that should be issued, and their respective amounts, and the time when they should be sent forth, are matters intrusted to the legal discretion of the trial court, subject always to the proviso that the right of the creditor to the warrants must not be denied or seriously impaired.

A judgment of mandamus directing a city, which already owes $60,000, either evidenced by city warrants, or upon which such warrants are due, to issue warrants to a judgment creditor to the amount of $35,984 in payment of his judgment against it, does not constitute such an abuse of discretion as will warrant a modification or reversal of the judgment.

Morris M. Cohn (Walter J. Terry and John W. Blackwood, on the brief), for plaintiffs in error.

James P. Clarke, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The writ of mandamus issues only to compel the discharge of a plain duty, which the parties commanded have lawful authority to do. Has a city of the state of Arkansas the power, and is it its duty, to issue its warrants to one of its taxpayers in payment of a judgment which he has against it, when it has no other means of paying him, and when it has not, and will not have during the coming year, any money in its treasury in excess of that absolutely necessary to defray its current expenses, with which to pay either the judgment or the warrants? This is the question which this case presents, and the true answer to it will not be found in the decisions of courts of other states, under dissimilar laws, but in the constitution, statutes, and decisions of the state of Arkansas. The constitution of that state provides (article 16, Sec. 10):

'The taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities respectively.'

Its statutes provide:

'Sec. 1002. All county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt and for sinking fund, and for all debts due the county by whose authority the same were issued; and all warrants, scrip, acceptances or money shall be receivable for any taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance or money, or the purpose for which they were issued.

'Sec. 1003. Whenever the county court of any county may deem it expedient to call in the outstanding warrants of said county, in order to redeem, cancel, reissue or classify the same, or for any lawful purpose whatever, it shall be the duty of said court to make an order for that purpose, fixing the time for the presentation of said warrants, which shall be at least three months from the date of such order.'

'Sec. 5189. Whenever the council of any city or incorporated town in this state may deem it expedient to call in the outstanding warrants of said city or incorporated town in order to redeem, cancel, reissue or classify the same, or for any lawful purpose whatsoever, it shall be the duty of the council of said city or incorporated town to make an order for that purpose fixing the time for the presentation of said warrants, which shall be at least three months from the date of such order.'

'Sec. 5130. Cities or incorporated towns, organized or to be organized under the provisions of this act, shall be, and are hereby declared to be bodies politic and corporate, under the name and style of 'The City of . . .,' or 'The Incorporated Town of . . .,' as the case may be; capable to sue and be sued, to contract and be contracted with, to acquire, hold and possess property, real and personal; to have a common seal, and to change and alter the same at pleasure, and to exercise such other powers and to have such other privileges as are incident to other corporations of like character or degree, not inconsistent with the provisions of this act or the general laws of the state.'

'Sec. 5169. Any person owning property and having taxes to pay in any city or town may, upon application to any judge or court having authority to grant injunctions, enjoin the collection of any tax levied in such city or town, without authority of law, and may also enjoin the issue or the payment by such city or town of any warrants, certificates or other form or evidence of indebtedness against such city or town issued or contracted without authority of law. ' Sand. & H. Dig. Ark. 1894.

The constitution and the statutes which we have cited contain no express grant of power to cities or to counties to issue their warrants in payment of their debts. Nevertheless the existence of that power is a necessary implication from the terms of this constitution and these statutes. And that which is implied is as much a part of a statute, grant, or contract as that which is expressed. Gelpcke v. City of Dubuque, 1 Wall. 220, 221, 17 L.Ed. 530; U.S. v. Babbitt, 1 Black, 55, 17 L.Ed. 94; Citizens' Savings & Loan Ass'n v. City of Topeka, 20 Wall 655, 660, 22 L.Ed. 455. 'A thing which is within the intention of the makers...