Howard v. City of Huron

• Decision Date: 17 July 1894
• Citation: 59 N.W. 833,5 S.D. 539
• Parties: HOWARD v. CITY OF HURON et al.
• Court: South Dakota Supreme Court

59 N.W. 833

5 S.D. 539

HOWARD v. CITY OF HURON et al.

Supreme Court of South Dakota

July 17, 1894

Syllabus by the Court.

1. In mandamus proceedings to enforce a private right, the real party in interest should be named as plaintiff, and such proceedings should not be entitled in the name of the state on the relation of such party.

2. When the return to an application for a writ of mandamus puts in issue no material facts affecting the substantial rights of the parties, the court may hear and determine the case upon questions of law alone.

3. After a judgment has been rendered against a city by a court of competent jurisdiction, such city is concluded from contradicting such judgment in proceedings against it to enforce the same by mandamus, when the conditions of the case are such that an examination of the record upon which the judgment is based is neither proper nor necessary in order to obtain the remedy.

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Application by Joseph D. Howard against the city of Huron and the mayor and council, requiring them to levy a tax. Judgment for plaintiff, and defendants appeal. Affirmed.

A. W Wilmarth (H. Ray Myers, of counsel), for appellants. E. H Aplin, for respondent.

FULLER J.

On the 10th day of July, 1891, plaintiff and respondent recovered a judgment against appellants, a municipal corporation, which at the commencement of this proceeding amounted to $4,717.62 including costs and accrued interest. Appellants' charter requires the city council to meet on the first Monday of September of each year, and to levy such sum or sums of money as may be sufficient for the payment of current expenses and debts of the corporation, including the interest on bonds and the principal of all matured bonds; and the city council having failed and refused at the September, 1891, and September, 1892, meetings, and at all subsequent times, to make any levy or provision for the payment of plaintiff's judgment, or any part thereof, plaintiff applied to the circuit court for an alternative writ of mandamus, which was granted on the 30th day of August, 1893, returnable three days thereafter, and requiring said defendant corporation and its city council, at its September, 1893, meeting, to levy and include within the 10-mill limit fixed by law a sum of money sufficient to pay plaintiff's judgment; and the levy was directed to be based upon the assessed valuation of the real and personal property of the city of Huron, as returned and equalized by the city and county boards of equalization; and, in case of failure to comply with said order, defendants were required to show cause before the court, at a specified time and place, why such levy had not been made, and why the same should not be made, to satisfy said judgment. Upon the return of the alternative writ, and for the purpose of showing cause why they should not be required to comply therewith, defendants admitted, by way of answer, the rendition and existence of plaintiff's judgment, and that it is the duty of the city council to levy and collect taxes to pay the current expenses of the city and the debts of the corporation, within the limit of 10 mills on each dollar of the assessed valuation, and 4 mills on the dollar to create a sinking fund to pay future bonded indebtedness, and alleged that defendants have no other power to levy a tax, and no other resources for revenue, except about $600 per annum obtained from licenses; that the city council had no power to incur the debt upon which plaintiff's judgment was obtained, and that at the time the liability was incurred, and at the present time, the city of Huron was and is indebted in excess of the statutory and constitutional limit; that the indebtedness upon which the judgment is based was created for the construction of a well for a purpose other than the public use, and that the city council had no power to levy and collect a tax to pay a debt thus created. Defendants further stated, on information and belief, that all the funds that can be obtained from the maximum levy will be necessary to defray the current expenses for the ensuing year.

By stipulation of counsel the matter was argued and submitted on the 1st day of September, 1893; and the court rendered judgment in favor of the appellee, substantially as follows: "It is hereby ordered and adjudged that the city of Huron, a municipal corporation, and the city council of the city of Huron, consisting of H. Ray Myers, mayor, and F. H. Molton Walter Briton, George Mallett, Irving Thoman, C. D. Joy, W. F. T. Bushnell, George Grove, and John Ward, aldermen, and each of them, and their succussors, shall on September 4, A. D. 1893, being the first Monday in September, 1893, or at their next meeting after the levy of such sum or sums of money as may be sufficient for the current expenses of said corporation for the next fiscal year, provided it does not exhaust the ten (10) mill levy allowed by law, levy such sum of money, not exceeding in all ten (10) mills on the assessed valuation of the city of Huron, as will be sufficient to pay the judgment now held by this plaintiff, Joseph D. Howard, and against the city of Huron, defendant, amounting to the sum of four thousand seven hundred seventeen and 62-100 ($4,717.62), principal and interest, besides accruing interest and costs of this proceeding. In case a sufficient levy cannot be made during the year 1893 to pay all of said judgment, the sum so levied and collected is to be applied in part payment of said judgment; and the balance remaining unpaid shall be provided for by a like levy in the year A. D. 1894, after the current expenses of the city of Huron have been levied, which levy, with the current expenses, is in no event to exceed ten (10) mills of the assessed valuation of the city of Huron for that year; and, in case a sufficient levy cannot be made in the year 1894 to pay the amount due on said judgment, then the amount then due shall be provided for by the levy made during the year A. D. 1895, and for each succeeding year until said judgment, with interest and all costs has been fully paid. It is further ordered that any money remaining in the county treasury of Beadle county, belonging to the city of Huron, and any money remaining in the city treasury of the city of Huron, at the close of the fiscal year of 1894, and not otherwise appropriated to pay current expenses of the city...