Fisher v. The City Of Charleston.

• Decision Date: 02 April 1881
• Citation: 17 W.Va. 595
• Parties: Fisher v. The City of Charleston.
• Court: West Virginia Supreme Court

17 W.Va. 595

Fisher

v.The City of Charleston.

Supreme Court of Appeals of West Virginia.

Decided April 2, 1881.

The usual and proper mode of proceeding in this State in cases of mandamus is for the plaintiff to file a petition in the court having jurisdiction of the case, setting forth the facts of his case on which he bases his claim to a mandamus, and praying for the writ, specifying in his petition the specific act or acts, which he asks to have the defendant commanded to perform. The facts set out in the petition must be such as prima facie entitle the plaintiff to the relief he seeks, and the petition, shouldfbe supported by affidavit, if filed by a private person. On the filing of this petition, which is ez parte, the court, if a prima facie case is thereby made out, on the plaintiff's motion makes an order, which reciting that the petition is filed orders, that the defendant after being previously served with a copy of the order to appear on a certain day fixed by the court and show cause, if any he can, wherefore a writ of mandamus should not be awarded the plaintiff to command the defendant to do the specific acts, which command should correspond with that asked for in the petition. If on the return day of this rule it has been served, and the defendant files no answer, the court either orders a peremptory mandamus to issue, against him or compels him to file an answer, as one or the other may be proper in the particular case. If he files an answer, and it be insufficient at law, the court proceeds, as if no answer had been filed; if it be sufficient in law, no peremptory writ of mondamus is then issued, but if the court sees, that there is a disputed question of fact between the parties, it should order an alternative writ of mandamus to be issued, and it does not permit a demurrer or replication to be filed to the answer to the rule; or the court may, and usually does, dispense with the issuing a rule to show cause why a mandamus should not issue, and immediately on. the filing of the petition, if a prima facie case is thereby made out, orders an alternative writ of mandamus to be issued. The alternative writ sets forth by distinct recital and not by reference to the petition all the facts necessary to show the plaintiff's right to the writ of mandamus which he asks; and by it the defendant is commanded to perform the particular act specified in it (which should properly be the same as that stated in the rule or petition, but which may be different), or that cause be shown to the contrary in a given time. It is regarded as the plaintiff's drclaration. If the defendant does not make a return to this alternative writ, the court may either order a peremptory writ of mandamus or enforce the filing of a return, as may be proper in the particular case. The defendant may move to quash the alternative writ, which is equivalent to a demurrer to it, or he may make a return. This return is regarded as his plea; and it may be replied to, and the pleading proceed as in ordinary common law suits, till an issue of law or fact is reached and tried.

2. To the pleadings in cases of mandamus the ordinary rules of pleading are applied, neither greater nor less certainty being required in them than in the pleadings in ordinary common law suits. But the facts set forth by the plaintiff in the alternative writ of mandamus are set forth by way of recital and not in the positive manner, that is required in an ordinary declaration in a common law suit.

3. The petition and rule constitute no part of the pleadings in cases of mandamus;and to these the strict rules of pleading are not applied, it being in all cases sufficient for the petition to set forth a prima facie case.

4. A mandamus lies in behalf of a judgment-creditor against a municipal corporation, where an execution has been issued on the judgment, audit has been returned "no property found."

5. In such a case no demand on the proper municpal authorities to levy a special tax to pay such judgment is necessary as preliminary to the right of the creditor to apply to the court for a mandamus.

6. In such a case it is" not necessary in the petition, that the plaintitt should expressly allege, that this judgment, on which such execution has been so returned, has not been paid; but such non-payment must be alleged in the alternative writ, as it is regarded as a declaration, and in this State such non-payment must be allleged in every declaration.

7. As by the general law of this State the taxing power of a municipal

corporation, such as a town, is in its common council, and it is composed of the mayor, recorder and councilmen, it is therefore unnecessary in such a case of mandamus either in the petition or in the alternative writ of mandamus, that it should be alleged, that the taxing-power is in said parties.

8. Such, a judgment-creditor has a right to require the council of a city to levy a tax sufficient to pay his judgment and to specifically appropriate such tax to its payment, but the obligation of the city is sufficiently met by a tax specifically appropriated to the payment of such judgment-creditor and other specified creditors, if the tax be sufficient to pay them all.

9. By sufficient to pay them is meant, sufficient to pay them promptly at the time the tax-payers are required by law to pay such taxes. The judgment-creditors, for whom such specific lax has been levied, are not bound to wait till the city can make the taxes out of delinquent tax-payers. But if, when the tax ought to be paid by law, a sufficient amount has not been collected to pay in full such judgment-creditors, it is the duty of the common council forthwith to levy another and a sufficient tax; for in law such previous tax would be regarded as insufficient.

10. Except by the consent of parties and the assent of the court entered of record it is improper to substitute the petition and rule or either of them in lieu of the alternative writ.; and no issue should be made upon an answer to the rule. If it be done, and such issue be tried, and judgment be rendered on it in the court, such judgment and proceedings will be reversed and annulled by this court for such irregularity.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha rendered on the 17th day of December, 1879, in an action in said court then pending, wherein Henry I. Fisher was plaintiff and the City of Charleston was defendant, allowed upon the petition of said Fisher.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

On May 29, 1878, Henry I. Fisher presented his petition to the circuit court of Kanawha county for a mandamus against the city of Charleston. The petition set forth, that since May 1, 1871, the city of Charleston had been and still was a municipal corporation duly chartered and organized; that on November 24, 1876, the petitioner obtained a judgment in the circuit court of said county against said city of Charleston for $744.80 with interest thereon till paid and costs of suit; that an execution was issued on said judgment returnable to March rules, 1877, which execution was returned "no property found;" and that the petitioner knows of no property of the city of Charleston out of which said judgment can be made. The petition asks for a rule against certain persons named, the mayor, the treasurer, the recorder, and councilmen of said city, returnable on June 6, 1878, to show cause, if any they could, why a writ of mandamus should not be issued commanding the treasurer to pay over to the petitioner any money in his hands otherwise unappropriated not exceeding the amount of said judgment, interest and costs; and for want of said funds, commanding said mayor, recorder, and councilmen forthwith to levy a tax upon the taxable property within the corporate limits of the city of Charleston sufficient to satisfy said judgment, interest and costs, and to set aside the proceeds of said tax for the payment of the same, and to pay over said proceeds to the petitioner. In this petition it is recited, that said mayor, recorder and councilmen constituted the corporation of the city of Charleston. This petition was sworn to by the petitioner.

Upon the filing of this petition on motion of the peti tioner the court ordered, that the said mayor, treasurer, recorder and councilmen, naming them, after being previously served with a copy of this order should appear in court on the 6th day of June during the then term of the court and show cause, if any they could, wherefore a writ of mandamus should not be awarded the petitioner to command the said treasurer to pay over to him any money in his hands otherwise unappropriated sufficient to pay this judgment of $744.80 with interest thereon from November 25, 1876, and $11.40 costs of suit; and for want of such funds commanding the said mayor, recorder and councilmen, forthwith to levy a tax upon the taxable property within the corporate limits of the city of Charleston sufficient to satisfy said judgment, interest and costs, and to set apart the proceeds of said tax for; the payment of the same, and to pay over said proceeds to the petitioner.

On June 3, 1878, a copy of this order was served on each of the said councilmen and on the mayor, treasurer and recorder of the city of Charleston; and on the return day, June 6, 1878, they all appeared and moved the court to quash this rule, which motion the court overruled; and on June 24, 1878, they filed their answer to said rule, in which they said, that no such writ of mandamus, should issue against them, because, they said, that heretofore, to wit, on the 24th day of November, 1876, the mayor, recorder, and councilmen of said city of Charleston did levy a tax upon the taxable property within the corporate limits of said city of Charleston sufficient to satisfy the said judgment, interest and costs, and...