State ex rel. Coolsaet v. City of Veblen

• Decision Date: 23 June 1931
• Docket Number: 6971.
• Citation: 237 N.W. 555,58 S.D. 451
• Parties: STATE ex rel. COOLSAET et al. v. CITY OF VEBLEN et al.
• Court: South Dakota Supreme Court

237 N.W. 555

58 S.D. 451

STATE ex rel. COOLSAET et al. v. CITY OF VEBLEN et al.

No. 6971.

Supreme Court of South Dakota

June 23, 1931

Appeal from Circuit Court, Marshall County; Howard Babcock, Judge.

Proceeding by the State, on the relation of Hector Coolsaet and others copartners, doing business under the firm name and style of Coolsaet Bros. & Drees, for a writ of mandamus to the City of Veblen and others.From a judgment entering a peremptory writ, defendants appeal.

Affirmed.

See also, 228 N.W. 802.

Otto L Kaas, of Britton, for appellants.

Buell F. Jones, of Britton, and James H. Hall, of Marshall, Minn., for respondents.

RUDOLPH J.

Defendant appeals from the judgment entering the peremptory writ of mandamus requiring them, as officers of the city of Veblen, to levy a tax upon the taxable property of the city, in an amount sufficient to pay a judgment held by the plaintiffs in the sum of $10,563.44 and accrued interest.

The trial court rendered the judgment and issued the writ on the theory that, when a final judgment has been rendered against a city, it is the duty of the city council to pay it immediately, and, if there are no available funds with which to make the payment, a special tax shall be levied sufficient to make the payment.Appellants take the position that they are limited and without power to levy a tax in excess of fifteen mills for all purposes, including this judgment; that the full limit of fifteen mills is necessary for running expenses, and no levy for the payment of the judgment can now be made.The vital question is the power of the court, in view of our statutory provision, to compel the city and its officers to tax the taxable property within the city by a special judgment levy.

Mandamus is a proper if not the only remedy to enforce collection of a judgment if the officers fail in their duty to provide for its payment.Mandamus is in the nature of an execution to collect the debt, Howard v. City of Huron, 5 S. D. 539, 59 N.W. 833, 26 L. R. A. 493, and can be used to reach the resources of the city that are or may be made available by such process, for the payment of the judgment.

Appellants contend that the judgment is void because it creates a debt in excess of the constitutional limit of indebtedness.A judgment does not create any indebtedness; it is evidence and an adjudication of an indebtedness already created.Edmundson v. Independent School District et al.,98 Iowa, 639, 67 N.W. 671, 60 Am. St. Rep. 224.If the debt were invalid, that should have been urged as a defense to the judgment.It is now too late to urge a defense to the judgment; it is final.Howard v. City of Huron,supra, andState ex rel. Coolsaet v. City of Veblen(S. D.)228 N.W. 802.

On the principal question, that is, the question whether or not the governing body of the municipality must levy a tax to pay this judgment, a consideration of our statutes is necessary.A judgment creditor of a municipality is not entitled to a mandamus to compel the levy of a tax in excess of the limit fixed by statute.The provisions of our statute control the authority of the defendants in levying any tax, the proceeds of which are for the purpose of paying this judgment.The Legislature is vested with the right to limit the tax levy of a municipal corporation.Section 1, art. 10, of the state Constitution, provides: "The legislature shall restrict the power of such corporations [municipal corporations] to levy taxes and assessments, borrow money and contract debts, so as to prevent the abuse of such power."

We must then look to the statutes of this state to determine the rights of these parties.Appellants contend that section 6739, Rev. Code. 1919, as amended by Laws 1919, c. 114, limits the levy to fifteen mills for all purposes, including the payment of the judgment in this case.Said section provides:

"The total annual city tax levy for all purposes except as provided in section 6745 of the Revised Code of 1919 shall not exceed the following rate:

"1.In cities of the first class, the levy shall not exceed twelve mills on the dollar of assessed valuation.

"2.In cities of the second class, the levy shall not exceed fifteen mills on the dollar of assessed valuation."

The city of Veblen is a city of the second class.The judgment in this case does not fall within any of the exceptions of section 6745,Rev. Code 1919.The section of our Code upon which the respondent relies is section 6334,Rev. Code 1919, as amended bychapter 295, § 1, of the Laws of 1921, the last clause of which section provides as follows: "Should any judgment be obtained against the city or town, the mayor, under the sanction of the governing body, may borrow a sufficient amount to pay the same, for a space of time not exceeding the close of the fiscal year, which sum and interest shall in like manner be added to the amount authorized to be raised by the general tax levy of the next year and embraced therein."

What was the intention of the Legislature in the enactment of these two sections?Does this last provision modify the limitation provided in section 6739 in so far as the payment of this judgment is concerned?In determining these questions, it is helpful to look to another section of our Code;section 6334 provides for the annual appropriation ordinance of governing bodies of cities and towns, and therein such governing bodies are authorized to...