Shepard v. Tulare Irr. Dist.

• Decision Date: 24 April 1899
• Docket Number: 859.
• Citation: 94 F. 1
• Court: U.S. District Court — Southern District of California
• Parties: SHEPARD v. TULARE IRR. DIST.

94 F. 1

SHEPARD v. TULARE IRR. DIST.

No. 859.

United States Circuit Court, S.D. California.

April 24, 1899

S. F Leib, for plaintiff.

Calvin L. Russell, for defendant.

WELLBORN District Judge.

Plaintiff who is a citizen and resident of the state of Michigan, sues to recover upon interest coupons issued by the defendant, and irrigation district created under a statute of the state of California, known as the 'Wright Irrigation Act.' The plaintiff alleges the due organization of said district, the issuance of the bonds to which said coupons were attached and that the plaintiff is a bona fide holder thereof. Defendant has interposed a demurrer to the complaint, on the various grounds hereinafter noticed, and the present hearing is on said demurrer. Said act (St. Cal. 1887, p. 29 et seq.) contains, among others, the following provisions relating to bonds:

'Sec 15. For the purpose of constructing necessary irrigating canals and works, and acquiring the necessary property and rights therefor, and otherwise carrying out the provisions of this act, the board of directors of any such district must, as soon after such district has been organized as may be practicable, and whenever thereafter the construction fund has been exhausted by expenditures herein authorized therefrom, and the board deem it necessary or expedient to raise additional money for said purposes, estimate and determine the amount of money necessary to be raised, and shall immediately thereafter call a special election, at which shall be submitted to the electors of such district possessing the qualifications prescribed by this act, the question whether or not the bonds of said district in the amount as determined shall be issued. Notice of such election must be given by posting notices in three public places in each election precinct in said district for at least twenty days, and also by publication of such notice in some newspaper published in the county where the office of the board of directors of such district is required to be kept, once a week for at least three successive weeks. Such notices must specify the time of holding the election, the amount of bonds proposed to be issued; and said election must be held and the result thereof determined and declared in all respects as nearly as practicable in conformity with the provisions of this act governing the election officers; provided, that no informalities in conducting such an election shall invalidate the same, if the election shall have been otherwise fairly conducted. At such election the ballots shall contain the words 'Bonds-- Yes,' or 'Bonds-- No,' or words equivalent thereto. If a majority of the votes cast are 'Bonds-- Yes,' the board of directors shall cause bonds in said amount to be issued; if a majority of the votes cast at any bond election are 'Bonds-- No,' the result of such election shall be so declared and entered on record. * * * The principal and interest shall be payable at the place designated therein. * * * '

'Sec. 17. Said bonds, and the interest thereon, shall be paid by revenue derived from an annual assessment upon the real property of the district; and all the real property in the district shall be and remain liable to be assessed for such payments as hereinafter provided.

'Sec. 18. The assessor must, between the first Monday in March and the first Monday in June, in each year, assess all real property in the district, to the persons who own, claim, have the possession, or control thereof, at its full cash value. * * * '

'Sec. 22. The board of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds, and at the expiration of ten years after the issuing of bonds, of any issue must increase said assessment to an amount sufficient to raise a sum sufficient to pay the principal of the outstanding bonds as they mature. The secretary of the board must compute and enter in a separate column of the assessment book the respective sums, in dollars and cents, to be paid as an assessment on the property therein enumerated. When collected, the assessment shall be paid into the district treasury and shall constitute a special fund, to be called the 'Bond Fund of . . . Irrigation District.' In case of the neglect or refusal of the board of directors to cause such assessment of property made by the county assessor and the state board of equalization shall be adopted, and shall be the basis of assessments for the district, and the board of supervisors of the county in which the office of the board of directors is situated shall cause an assessment roll for said district to be prepared, and shall make the levy required by this act, in the same manner and with like effect as if the same had been made by said board of directors, and all expenses incident thereto shall be borne by such district. In case of the neglect or refusal of the collector or treasurer of the district to perform the duties imposed by law, then the tax collector and treasurer of the county in which the office the board of directors is situated must, respectively, perform such duties, and shall be accountable therefor upon their official bonds as in other cases.'

'Sec. 23. The assessment upon real property is a lien against the property assessed, from and after the first Monday in March for any year; and such lien is not removed until the assessments are paid for the property sold for the payments thereof.'

Sections 24 to 33, inclusive, provide for the collection of assessments by the collector of the district, and for the payment over to the treasurer of the district of all moneys so collected. In section 34 occurs the following provision:

'Upon the presentation of the coupons due to the treasurer, he shall pay the same from said bond fund.'

Defendant contends that all the officers of said district, except as otherwise alleged in the complaint, are presumed to have regularly performed their duties,-- citing Code Civ. Proc. Cal., Sec. 1963, subd. 15; and that, inasmuch as the only dereliction of duty charged in said complaint is against the treasurer, it must be assumed that the requisite assessments to pay the coupons sued on have been collected and placed in his hands for that purpose, and therefore that plaintiff has an adequate remedy by mandamus against the treasurer, available in the state courts, and, because of such remedy, cannot resort to an ordinary common-law action in the federal courts. This contention is fully met by the considerations that in the federal courts mandamus will not issue as an original, independent proceeding, but only in the exercise of a jurisdiction already acquired (Bath Co. v. Amy, 13 Wall. 244; Greene Co. v. Daniel, 102 U.S. 187; Davenport v. Dodge Co., 105 U.S. 237; Town of Queensbury v. Culver, 19 Wall. 83; Heine v. Commissioners, Id. 655; Waite v. City of Santa Cruz, 89 F. 619), and the present action is to be regarded as one to establish the validity and amount of plaintiff's debt (2 Dill.Mun.Corp. § 856)-- and initiatory step to mandamus.

The case of Waite v. City of Santa Cruz, supra, cannot be distinguished from the case at bar, since the law providing for the payment of the bonds involved in the former case (St.Cal. 1893, p. 59) is the same in principle as section 17 of the Wright act, hereinbefore quoted; in other words, the bonds in both cases are payable out of special funds.

In Heine v. Commissioners, supra, the supreme court of the United States says:

'The question thus presented by the present case is not a new one in this court. It has been decided in numerous cases, founded on the refusal to pay corporation bonds, that the appropriate proceeding was to sue at law, and by a judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the corporation could be found liable to such execution and sufficient to satisfy the judgment. Then, if the corporation had authority to levy and collect taxes for the payment of that debt, a mandamus would issue to compel them to raise by

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