Weaver v. City of Ogden City

• Decision Date: 28 October 1901
• Docket Number: 453.
• Parties: WEAVER v. CITY OF OGDEN CITY et al.
• Court: U.S. District Court — District of Utah

111 F. 323

WEAVER v. CITY OF OGDEN CITY et al.

No. 453.

United States Circuit Court, D. Utah.

October 28, 1901

A Howat and L. R. Rogers, for petitioner.

H. R Macmillan, City Atty., H. H. Henderson, and Ogden Hiles, for defendant city.

MARSHALL District Judge.

This is an application for a writ of mandamus requiring Ogden City its mayor and city council, to make an appropriation for the payment of two certain judgments recovered by petitioner, and to pay the same if the city has sufficient funds for that purpose; otherwise to levy and collect a tax therefor. The petition for the writ alleges the recovery by the plaintiff in this court of two judgments against the defendant aggregating $22,042.58, a demand on the mayor and city council of defendant for payment, and its refusal, the subsequent issue of an execution, and a return nulla bona thereon. An alternative writ was issued, to which Ogden City has made return:

'That on the 13th day of September, 1901, the city council of Ogden City passed a resolution, which resolution was thereafter signed by the mayor, authorizing the city auditor of Ogden City to issue a warrant payable to the order of William C. Weaver, receiver (being No. 40,871), for twenty-four thousand five hundred and sixty-eight and 37/100 ($24,568.37) dollars, which included the amount of the judgments, together with costs and interest, mentioned in said alternative writ of mandate. That thereafter, on the 14th day of September, 1901, said defendant tendered said warrant to William C. Weaver as said receiver, which said warrant said William C. Weaver then and there refused to accept. And this defendant says that at the time of the issuance of said warrant it had not sufficient funds on hand to pay the same, and this defendant further says that it has no power under its charter or the laws of the state of Utah to levy a special tax with which to pay said judgments, interest, and costs, as required by said writ.'

This return has been treated by the parties as the return of all of the respondents.

A hearing was had, at which it appeared that, when the petition for the mandamus was filed, Ogden City had in the hands of its treasurer $18,500.85 of general funds, and on September 13, 1901, when the warrant described in the return was tendered, it had $24,042.56; that at the same dates there were outstanding warrants drawn on this fund, and theretofore presented to the treasurer for payment, and payment refused for want of funds, aggregating about $70,000.

As Ogden City is an instrumentality of the state in the government of the people, its revenues are not subject to seizure under execution. Its judgment creditors can have no recourse to such revenues, other than such as the statutes of the state have prescribed. It is elementary that the remedy by way of mandamus will only lie to enforce the performance of a plain legal duty upon the part of a public officer, and where the petitioner has no other adequate remedy. The petitioner in this case must be able to point to a statute of the state which expressly or by implication imposed some dutch upon the mayor and city council which they have failed to perform. The petition for the writ does not allege, nor was evidence introduced to show, the nature of the indebtedness for which the judgments were recovered. The case stands on the existence merely of the judgments. Board v. King, 15 C.C.A. 93, 67 F. 945. Hence we must look exclusively to the statutes of the state as they existed at the date of the judgments, in order to determine the rights of the judgment creditor. By those statutes the city council is given power to control the finances of the corporation, to appropriate money for corporate purposes, to provide for payment of corporate debts, and to levy and collect taxes for general and special purposes. Rev. St. Utah, Sec. 206. But the general taxes which may be levied are limited in amount by statute, and the objects of special...