Middle States Utilities Co. v. City of Osceola

• Decision Date: 13 January 1942
• Docket Number: 45308.
• Citation: 1 N.W.2d 643,231 Iowa 462
• Parties: MIDDLE STATES UTILITIES CO. v. CITY OF OSCEOLA et al.
• Court: Iowa Supreme Court

1 N.W.2d 643

231 Iowa 462

MIDDLE STATES UTILITIES CO. v. CITY OF OSCEOLA et al.

No. 45308.

Supreme Court of Iowa

January 13, 1942

[Copyrighted Material Omitted]

C. E. Richmann, of Cedar Rapids, and Hughes O'Brien & Hughes, of Des Moines, for appellant.

O. M. Slaymaker, R. E. Killmar, and D. D Slaymaker, all of Osceola, for appellees.

GARFIELD Justice.

A rehearing having been granted, the opinion filed on October 22, 1940, reported in 229 Iowa 216, 294 N.W. 342, is hereby withdrawn and the following substituted therefor:

On April 12, 1935, plaintiff procured a judgment in this court against defendant, city of Osceola, for $896.35. The validity of the judgment, which is unpaid, is not questioned. On April 21, 1939, plaintiff filed its petition against the city, its mayor and councilmen, for a writ of mandamus commanding the city to pay the judgment, and, if not paid, that defendants cause to be levied and collected a sufficient tax for its payment. Plaintiff also prayed for such other relief as is equitable. Defendants contended the action was barred by section 11007 (4), Code 1939, reading as follows:

"Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards. * * *

"4. Against sheriff or other public officer. Those against a sheriff or other public officer, growing out of a liability incurred by the doing of an act in an official capacity or by the omission of an official duty, including the nonpayment of money collected on execution, within three years, provided that actions against a sheriff, deputy sheriff or other peace officer founded on false arrest shall be brought within six months after the exoneration or discharge of the person arrested."

The court dismissed the petition, apparently on the theory that the above statutory provision was a bar to the action, more than three years having elapsed between the accrual of the cause of action and the commencement of the suit. Plaintiff has appealed.

We hold that the above statutory provision, referring to actions against a public officer, has no application to this suit, in so far as it is against the city. The city is not a "public officer." It is a body "politic and corporate," with the right to "sue and be sued, contract and be contracted with." Section 5738, Code 1939. Assuming, without deciding, that the above statutory provision is a bar to the action as against the mayor and individual councilmen, the city cannot avail itself of this statute to escape the payment of this liability. The primary obligation to pay this judgment rests upon the city, against whom the judgment was entered. Code section 11675 provides in part: "Levy against municipal corporation--tax. If no property of a municipal corporation against which execution has issued can be found, or if the judgment creditor elects not to issue execution against such corporation, a tax must be levied as early as practicable to pay off the judgment."

Speaking of the duty of a city to levy a tax to pay a judgment, this court said in the early case of State ex rel. v. City of Davenport, 12 Iowa 335, 342: "And this levy and collection, it would be the duty of the corporation to make."

True, the municipality, like a private corporation, can act only through its officers and agents. But in the payment of a judgment, they perform a duty which the law enjoins upon the city itself. Appellant's cause of action arose because of the nonperformance of this duty imposed by law upon the city. Its right to sue the city in mandamus is not dependent upon its right to proceed against the councilmen.

Where the duty sought to be enforced by mandamus is that of a corporation, whether public or private, the party may proceed against the corporation as such and the writ may be directed to it by name. 38 C.J., p. 605, sec. 82; 35 Am. Jur., p. 121, sec. 382; Dillon on Municipal Corporations, 5th Ed., Vol. 4, Secs. 1521, 1533; State ex rel. v. City of Live Oak, 126 Fla. 132, 170 So. 608; Leaven-worth County v. Sellew, 99 U.S. 624, 25 L.Ed. 333; State ex rel. v. Chicago, M. & N. R. Co., 79 Wis. 259, 48 N.W. 243, 12 L.R.A. 180. See also Norwalk & S. N. E. L. Co. v. Common Council, 71 Conn. 381, 42 A. 82; Wilson v. U.S., 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 S.Ct. 225, 41 L.Ed. 621. 623. The essential requirement is that the proceeding be against the "tribunal, board, corporation, or person," see Code section 12440, whose duty it is to perform the necessary act.

While the writ is directed to the city in its corporate name, it is enforced through its officers and agents at the time the writ issues, whose duty it is to obey its commands. Those who refuse to do what the law requires of them may be punished for contempt. The duty of a municipality to levy a tax for the purpose of paying a judgment is a continuing duty, irrespective of who are the councilmen and mayor. State ex rel. v. City of Live Oak, supra; Thompson v. U.S. 103 U.S. 480, 26 L.Ed. 521, 523; Leavenworth County v. Sellew, supra; Dillon on Mun.Corps., 5th Ed., Vol. 4, sec. 1521.

The nature of mandamus against a board has frequently been considered in cases where there is a change of membership on the board during the pendency of the suit. The authorities are practically unanimous that such a suit does not abate by a change in personnel of the board. Murphy v. Utter, 186 U.S. 95, 22 S.Ct. 776, 46 L.Ed. 1070; Comley v. Lawlor, 120 Conn. 610, 182 A. 218, 102 A.L.R. 938, and annotation, p. 943; authorities cited p. 956 et seq. These decisions proceed on the theory that the real party in interest is the municipality or other public body whom the board represents and not the individuals who happen to be incumbents when the duty is sought to be enforced; that to say otherwise is a sacrifice of substance to form. So here, the real party in interest is the city of Osceola and not the mayor and individual councilmen. The obligation of the city was conclusively adjudicated by the judgment which has not been satisfied. The present proceeding is in the nature of an execution upon that judgment. Thompson v. U.S., 103 U.S. 480, 484, 26 L.Ed. 521, 523; State v. City of Veblen, 58 S.D. 451, 237 N.W. 555.

If appellant had brought this suit against the city without joining the mayor and councilmen, the...