Amy v. City of Galena

• Decision Date: 18 May 1881
• Citation: 7 F. 163
• Parties: AMY v. CITY OF GALENA.
• Court: U.S. District Court — Northern District of Illinois

7 F. 163

AMY v. CITY OF GALENA.

United States Circuit Court, N.D. Illinois.

May 18, 1881

Grant & Grant, for relator.

D. & T J. Sheehan, for the city.

BLODGETT D.J., (orally.)

This is a petition for mandamus, in which the relator avers that on the sixteenth day of January, 1866, he recovered a judgment in this court against the city of Galena for $19,377.50 debts, and $768.82 damages, and $68.17 costs, making in all $20,214.40; that on the tenth day of July, 1866, he recovered another judgment against said city for $2,500 debt, and $150.20 damages, and $36.32 costs, making in all $2,686.52 and that on the twenty-eighth day of December, 1878, he recovered in this court a further judgment for $1,000 debt, $1,096.08 damages and $33.05 costs; total, $2,129.13. All of which judgments he avers were upon bonds issued by the defendant city, pursuant to the powers in its act of incorporation, to enable it to make various public improvements, and for the interest which had accrued on said bonds; and that said judgments, together with the interest which has accrued thereon, at the rate of 6 per cent. per annum, since the rendition thereof, remain in full force and wholly unsatisfied.

That the affairs of said city are, by the laws of this state, under the management and control of the city council of said city, which consists of a mayor and board of aldermen; that by an act of the general assembly of this state, approved June 21, 1852, said city council is authorized to levy and collect a tax, not exceeding 1 per cent., upon the assessed value of all the taxable property of the city, in addition to a tax of 1/2 per cent. authorized by previous acts of the legislature of the state, which taxes shall constitute the general fund for city purposes; and that by the same act they were empowered to annually assess, levy, and collect a tax of not exceeding 1 per cent. on the dollar on the assessed value of all the real and personal estate taxable in said city, in addition to all other taxes levied and collected in said city, which was to be applied as follows, to-wit:

'The fund so collected shall be kept separate, and shall annually, on the first day of January, be appropriated and paid over, pro rata, on the funded indebtedness of said city, as it may be presented by the holders of the same, to be entered as credits upon and to that extent in extinguishment of the principal of said city indebtedness.'

Which provision of law was to remain in force until the whole of the city's indebtedness, and the interest to accrue thereon, was fully paid; that by an act of the general assembly of this state, approved January 30, 1857, the said city council was authorized to levy and collect annually taxes not exceeding 1 per cent. on the dollar on the assessed value of the taxable property within said city, to defray the general and contingent expenses, and to constitute a general fund of the city; and by the same act the city council was authorized to levy and collect taxes not exceeding 1 per cent. on the dollar per annum on all property subject to taxation, to meet the interest on the debt of the city; and by an act of the legislature of this state, approved February 16, 1865, the city council was authorized to levy and collect a tax of 1 per cent. on the dollar per annum on all property subject to taxation, which tax, when collected, shall be set apart for the sole and exclusive purpose of paying the interest upon the public debt of the city while the same is in existence.

The relator claims that by virtue of the laws thus referred to it became and is the duty of the city council of the city to annually levy and collect taxes for the payment of the said judgments, and the interest which has accrued thereon, but states that said city council has for many years past wholly neglected and disregarded its duty in this behalf, although relator has often requested said city council to so levy and collect such tax. It is further stated that the value of the property in said city subject to taxation for the year 1879 was $589,429.

By its answer or return the respondent admits the recovery of the judgments set out in the petition, or, at least, does not deny that they were recovered as alleged, but insists that inasmuch as no executions...