Denver-Greeley Valley Irr. Dist. v. McNeil

• Decision Date: 25 September 1939
• Docket Number: No. 1677.,1677.
• Citation: 106 F.2d 288
• Parties: DENVER-GREELEY VALLEY IRR. DIST. et al. v. McNEIL et al.
• Court: U.S. Court of Appeals — Tenth Circuit

106 F.2d 288 (1939)

DENVER-GREELEY VALLEY IRR. DIST. et al. v. McNEIL et al.

No. 1677.

Circuit Court of Appeals, Tenth Circuit.

August 8, 1939.

Rehearing Denied September 9, 1939.

Further Rehearing Denied September 25, 1939.

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John P. Akolt, of Denver, Colo. (Clay R. Apple, of Greeley, Colo., and Elmer L. Brock, E. R. Campbell, Milton Smith and Karl F. Crass, all of Denver, Colo., on the brief), for appellants.

Albert L. Vogl, of Denver, Colo. (Carle Whitehead and Frank A. Wachob, both of Denver, Colo., on the brief), for appellees.

Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

This appeal is from a judgment granting a writ of mandamus to compel the making of a levy to raise money with which to satisfy a judgment previously rendered in another action. The judgment in the earlier case was predicated upon bonds and interest coupons issued by the Denver-Greeley Irrigation District, and it contained a provision that it should be enforced only in accordance with the statutes and decisions of the State of Colorado relating to irrigation districts. We affirmed. Denver-Greeley Valley Irr. Dist. v. McNeil, 10 Cir., 80 F.2d 929. Thereafter petitioners here, plaintiff and intervenor respectively in the former action, made demand upon the irrigation district and the appropriate officers of the two counties in which lands within the district are located to take the requisite action to produce the money with which to satisfy the judgment. In November, 1936, the Board of Commissioners of Weld County, at the request of the irrigation district, made seven separate levies against 31,107 acres of land within the district. The levies were for the years 1913 to 1919, inclusive, and each was designed to produce $120,000, that being the full amount of the interest for one year on all of the bonds issued by the district.

In April, 1937, petitioners filed in this case their joint petition for mandamus, and an alternative writ issued. It was alleged that the judgment had been rendered; that the levies had been made in November, 1936; that the irrigation district, the Board of Commissioners of Weld County, and the respective assessors of the two counties in which lands within the district are situated had failed, neglected, and refused to make any levies for the purpose of producing money with which to discharge the judgment; that more than 20,000 acres of land had been wrongfully excluded from the district after the bonds and interest coupons were issued; and that the levies made in 1936 were made only against the lands remaining in the district after such exclusions. Respondents answered that annual levies had been made prior to 1936 for all bonds, and for all interest coupons except those which came due in the years 1913 to 1919; that levies were made in 1936 for the coupons which came due in those years; and that levies had thus been made for the full amount of the principal and interest on all bonds.

The court found that the respondent Board of Commissioners of Weld County had not used or exhausted its powers to make assessments or levies on the lands lying within or comprising the district for the years 1913 to 1919, and that the omitted assessments were largely in excess of the aggregate amount of the judgment. The several respondents were ordered and directed to take the respective steps essential to make a levy against all lands within the district for each of the years 1913 to 1919, inclusive, for the purpose of providing the amount of money necessary to pay the judgment in full. Respondents appealed.

On the threshold, dismissal of the appeal is sought for objectionable generality of the assignment of errors in violation of Rule 11 of this court which was in force at the time the appeal was perfected. The pertinent part of the rule then in force provided that the assignment of errors should set forth separately and particularly each error asserted and intended to be urged. The clear purpose of the rule was to require the appellant to indicate in ordered manner the respects in which and the reasons for which it was contended that the action of the trial court was erroneous. Many of the assignments are general in that they fail to point out with particularity the respects in which or the reasons for which it is contended that the action of the court constituted error. But they are quite similar in form to the assignments in many other cases in this court which were neither challenged by counsel nor questioned by the court. Dismissal of the appeal is an extreme penalty for which the circumstances here do not call.

Coming to the merits, the bonds and interest coupons on which the judgment in the former case was sought and obtained were not general obligations of the irrigation district. They were special obligations for local improvements payable out of moneys produced by special assessments against the lands within the district to be benefited. Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 P. 123; Thomas v. Henrylyn Irr. Dist., 79 Colo. 636, 247 P. 1059; Board of Commissioners of Adams County v. Heath, 87 Colo. 204, 286 P. 107; In re Green City Irr. Dist., 91 Colo. 202, 13 P.2d 1113; Henry Wilcox & Son v. Riverview Drainage Dist., 93 Colo. 115, 25 P.2d 172; Divide Creek Irr. Dist. v. Hollingsworth, 10 Cir., 72 F.2d 859, 96 A.L.R. 937; Denver-Greeley Valley Irr. Dist. v. McNeil, supra.

The statutes of the State of Colorado governing the issuance of such bonds and interest coupons and providing for the method of their payment authorize annual levies upon the lands by the acre unit in the district to be benefited, the levies to be such in amount and rate as is necessary to provide money equal to the bonds and coupons as they mature. And when such levies have been made and completed, no authority exists in the laws of the state for the making of additional or cumulative levies for that purpose. Interstate Trust Co. v. Montezuma Valley Irr. Dist., supra; Thomas v. Henrylyn Irr. Dist., supra; Henry Wilcox & Son v. Riverview Drainage Dist., supra.

The remedy of mandamus in the United States courts is ancillary. The writ is issuable only after the right has ripened into judgment. Its function is to compel the discharge of a duty which the officers to whom it is directed are empowered by law to perform. It does not confer new authority. It cannot be invoked to compel the exertion of power which does not exist otherwise. It can serve to coerce the levying of special taxes only when taxation of that kind is authorized by law. And changing the evidence of the obligation of the district from bonds and interest coupons to judgment, or stated otherwise, passing the bonds and coupons to judgment did not create a new right to a levy on the lands within the district to satisfy the obligation. The right of petitioners to a mandamus issued out of the court below to compel the making of a levy with which to satisfy and discharge the qualified judgment must be measured by their right under the law of the state to a levy for the payment of the bonds and coupons on which they recovered the judgment. Divide Creek Irr. Dist. v. Hollingsworth, supra; United States v. Criner, 8 Cir., 283 F. 774; City of Hialeah v. United States ex rel. Harris, 5 Cir., 87 F. 2d 953; Moody v. Provident Irr. Dist., Cal. App., 77 P.2d 253.

As stated in the opinion in the former case, annual levies were made for the purpose of producing the money with which to pay the principal on all bonds at maturity; like levies were made for the purpose of satisfying in full at maturity the interest coupons for all years except 1913 to 1919 inclusive; and the money arising from such levies would have been sufficient in amount for the respective purposes if all taxes had been paid. But failure in payment of taxes is not enough to warrant the imposition of cumulative levies for the purpose of paying the deficit in revenues thus brought about. Fruitless efforts have been made in...