City of Wheeling v. John F. Casey Co., 4134.

• Decision Date: 06 April 1937
• Docket Number: No. 4134.,4134.
• Citation: 89 F.2d 308
• Parties: CITY OF WHEELING et al. v. JOHN F. CASEY CO.
• Court: U.S. Court of Appeals — Fourth Circuit

89 F.2d 308 (1937)

CITY OF WHEELING et al. v. JOHN F. CASEY CO.

No. 4134.

Circuit Court of Appeals, Fourth Circuit.

April 6, 1937.

Jay T. McCamic, of Wheeling, W. Va. (Wesley R. Tinker, Jr., Charles McCamic, Russell B. Goodwin, and Benjamin L. Rosenbloom, all of Wheeling, W. Va., on the brief), for appellants.

Robert J. Riley, of Wheeling, W. Va. (T. S. Riley, of Wheeling, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a petition for a mandamus filed in December, 1935, by the appellee, a Pennsylvania corporation here referred to as the petitioner, in the District Court of the United States for the Northern District of West Virginia, at Wheeling, asking that the appellants, here referred to as respondents, be required to pay a judgment obtained by the petitioner against the respondent City of Wheeling or to lay a special levy sufficient to satisfy said judgment. The City of Wheeling is a municipal corporation of the state of West Virginia and of the respondents, Harry J. Humphrey is city manager, Charles F. Schultze is mayor and member of the council, and Benjamin L. Rosenbloom, Russell B. Goodwin, Chester W. McElroy, John J. Mathison, Paul Duffy, E. W. S. Neff, Dr. M. Gaydosh, and William J. Cotton¹ are members of council of said city.

The original petition was amended and respondents demurred which demurrer was overruled by the court below in January, 1936, and thereupon the respondents in February, 1936, filed a joint and separate answer to which the petitioner filed a demurrer and certain replications. This demurrer of petitioner to respondents' answer was sustained and on September 3, 1936, the court entered a peremptory writ of mandamus directing the payment of the judgment or the laying of a special levy for that purpose. From this action of the court below this appeal was brought.

The judgment of the petitioner was for the sum of $75,000, with interest and costs and was obtained in a suit in assumpsit, against the City of Wheeling, in June, 1932. The case was appealed to this court where the judgment was affirmed. 74 F. (2d) 794, certiorari denied 296 U.S. 593, 56 S.Ct. 106, 80 L.Ed. 420. After the filing of the petition for mandamus herein the petitioner sought by an equity proceeding to subject certain specific funds of the City of Wheeling to the payment of its judgment which relief was granted by the District Court. On appeal to this court the action of the court below was reversed (85 F.(2d) 922), on the grounds, as stated in the opinion, that the District Court did not have jurisdiction to direct or control the disposal of any particular fund; that the plaintiff had an adequate remedy at law and that no irreparable injury would result to the plaintiff.

Upon the last-mentioned decision of this court the petitioner proceeded with its mandamus proceeding. Statement of the facts with regard to the obtaining of the original judgment and the denial of the right to control the legislative action of the council of the City of Wheeling will be found in the two opinions of this court, above cited.

It is here contended on behalf of the respondents that the City of Wheeling had no power to lay a levy for the purpose of paying petitioner's judgment; that the judgment did not constitute a debt permitting a special fund to be raised by a levy for its payment; that the judgment was not a current expense and was not shown to be based upon an obligation for which there was a special fund or for the payment of which the City of Wheeling had the power, authority, or obligation to raise a special fund; that the courts should look through the judgment to determine whether the claim on which the judgment is based is a contract which the refusal to pay constituted an unconstitutional abridgment or impairment; that if the courts should look through the judgment the facts would show that the alleged claim was void and would not therefore compel the payment of the judgment; that the court below should not have refused to permit the respondents to plead what the contract was and thus show its alleged unconstitutionality; and that the court should have held that the debt, upon which the judgment was based, was void and uncollectible, such a contention not being a collateral attack upon the judgment.

There are two questions raised on this appeal.

First: Has the petitioner a valid judgment against the City of Wheeling?

Second: If the judgment is a valid one has the City of Wheeling the power to levy a tax to pay it?

We think both questions must be answered in the affirmative. The validity of the judgment has been twice passed upon by this court, first when the judgment was affirmed (74 F.(2d) 794), and again when we held that petitioner could not avail itself of an equitable remedy because it had an adequate remedy at law in a mandamus proceeding (85 F.(2d) 922).

A judgment "is a finality as to the claim or demand in controversy * * * not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195, quoted with approval in U. S. ex rel. Harshman v. Knox County Court, 122 U. S. 306, 318, 7 S.Ct. 1171, 1176, 30 L.Ed. 1152. In the latter case the court said: "The bar is all the more perfect and complete in this proceeding because it is not a new action. Mandamus, as it has been repeatedly decided by this court in such cases as the present, is a remedy in the nature of an execution for the purpose of collecting the judgment." (Citing cases.)

All of the defenses to the judgment that are now urged on behalf of respondents were presented in the two cases that we have passed upon and not only these defenses but whatever could have been urged to prevent the rendition of the judgment cannot now be urged to prevent its enforcement. Kaill v. Board of Directors (C.C.A.) 194 F. 73; U. S. ex rel. Ranger v. New Orleans, 98 U.S. 381, 25 L.Ed. 225; Tucker v. Hubbert (C.C.A.) 196 F. 849; State ex rel. Smith v. Hall, 94 W.Va. 400, 119 S.E. 166.

It is well settled that such a judgment cannot be attacked collaterally. City of Wheeling v. Casey Company (C.C.A.) 85 F.(2d) 922, and cases there cited. In the latter case will be found a discussion upon this point with citation of authorities. The same question was there raised as is here presented.

"A proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding, whether it is a direct action on the judgment * * * or a proceeding by mandamus to compel the payment of a judgment, or to compel the levy and collection of a tax to provide funds for the payment of the judgment. * * *" 34 C.J. 522.

We see no reason to change our opinion that the judgment is a valid one.

In considering the second question we find that the charter of the City of Wheeling authorizes the city council to levy a general tax, among other purposes for "* * * and all necessary, ordinary and contingent expenses of the city, not otherwise provided...