United States v. Saunders

• Citation: 124 F. 124
• Decision Date: 07 July 1903
• Docket Number: 1,835.
• Parties: UNITED STATES ex rel. MASSLICH v. SAUNDERS, City Treasurer, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

124 F. 124

UNITED STATES ex rel. MASSLICH v. SAUNDERS, City Treasurer, et al.

No. 1,835.

United States Court of Appeals, Eighth Circuit.

July 7, 1903

Syllabus by the Court.

The writ of mandamus to enforce the collection of judgments of the national courts against municipalities is the legal substitute for a writ of execution to enforce judgments against private parties, and the rights of their judgment creditors to their respective writs are equally inviolable.

The law imposes upon public officers the duty to do for the benefit of private citizens whatever it invests them with the power to perform on their behalf, whenever public interest or individual rights call for the performance of that duty.

No demand upon the officers of a municipality to levy a tax is necessary before instituting proceedings for mandamus, where the statute imposes upon them the duty to levy it, or where that duty, under the law, is plain, or where it is manifest that such a demand would be an idle ceremony.

A demand upon the officers of a municipality of payment of a judgment or claim against it is a sufficient demand upon them to levy a tax to pay it, where the statute or the general law authorizes them to make provision for its payment by such a levy.

The power of the officers of a municipality to levy sufficient general taxes to pay the bonds of their city is a legal inference from the authority to issue the bonds, in the absence of any constitutional or statutory limitation or inhibition of this power.

Statutes conferring powers and imposing duties upon municipal officers to levy taxes to pay judgments against their cities supersede statutes and their limitations conferring less extensive powers and duties upon such officers to levy taxes to pay bonds when the bonds have become merged in final judgments. Thenceforth the statutes authorizing taxes to pay judgments become the measure of the authority of the officers.

District bonds of a city, issued to pay for internal improvements under subdivision 58, Sec. 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 the special taxes levied for such improvements, create a general liability of the city issuing them; and their officers are authorized and required to levy and collect taxes upon all the taxable property within the limits of the city, under subdivisions 1, 2, and 19 of section 1282c, Comp. St. Neb 1901, to pay the bonded indebtedness which they evidence.

When a judgment has been rendered against a city on such bonds, the power is granted to its officers, and the duty is imposed upon them, by sections 4488-4491, Comp. St. Neb. 1901, to levy and collect taxes upon all the taxable property in the city to pay it.

Facts which limit a general liability imposed by statute or by law constitute matter of defense. It is not incumbent on a plaintiff to negative their existence either by pleading or by proof.

Chester B. Masslich, in pro. per.

Melvin B. Davis, for defendants in error.

C. C Flansburg and R. O. Williams, amici curiae.

In Error to the Circuit Court of the United States for the District of Nebraska.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

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 said city, but that no provision for the appropriation of any money or the levy of any tax for the payment of the said judgment, or any part thereof, was at any time made by 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 F. 449, 454, 54 C.C.A. 622, 628; Lafayette Co. v. Wonderly, 92 F. 313, 316, 34 C.C.A. 360, 363; Dempsey v. Oswego Tp., 51 F. 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 benefit 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 F. 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, Sec. 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 provisions of the statutes imposed upon the respondents, the officers of this city, the duty to provide the ways and means to pay this judgment. When the relator demanded its payment they were informed of their duty. The only purpose of a demand is to give the party upon whom it is made a reasonable opportunity to comply with it, and thus to avoid the expense of proceedings to enforce it. The demand of payment of the judgment did not fail to accomplish this purpose. It was made on ...