Village of Oakley v. Wilson

*338 GIVENS, J. January. 6, 1925, the village trustees of Oakley initiated proceedings which, resulted in the issuance on the 14th of March of the same year, of municipal bonds for the purchase of a waterworks system. January 28, 1925, appellants commenced under C. S., sec. 4101, amended Session Laws 1921, page 258, chapter 111, proceedings to detach their farm, lands theretofore within the village boundaries, judgment of detachment being entered November 11th. The County Auditor did not charge on the tax-rolls against this property, which we” will refer to as the detached property, the municipal tax levied to pay the interest, and-possibly principal, of the bonds for the years 1926, 1927 and 1928. These items not being on the tax-rolls were therefore not collected by the county treasurer, and on June 21, 1929, the instant mandamus action was commenced by the village to compel the county treasurer to return the tax-rolls to the auditor, and the auditor to compute the taxes and extend the same upon the tax-rolls against the detached lands. *339 The computation and extension of village taxes upon the general tax-roll is no part of the levy, but a purely ministerial duty, a mere step in collection, and where a public officer is by law enjoined to perform a ministerial duty within a time certain and neglects to perform it, he may do so, after the expiration of the prescribed time, unless prohibited by some negative language in the statute, or too late to accomplish the desired result. (Standrod v. Case, 24 Ida. 365, at 375, 133 Pac. 651 ; Quirk v. Diana Mines Co., 34 Ida. 30, 198 Pac. 672; Hooker v. Bond, 118 Mich. 255, 76 N. W. 404; State v. Phillips, 137 Mo. 259, 38 S. W. 931; State v. McClain, 132 Or. 561, 286 Pac. 590.) Remedy by action on an official bond would in this case be neither speedy nor adequate. (Babcock v. Goodrich, 47 Cal. 488; State v. Slusher, 117 Or. 498, 58 A. L. R. 114, 244 Pac. 540, 542; 38 C. J. 564.) Hence contrary to appellants’ contention, mandate will lie herein. The second paragraph of section 4105 clearly states that the tract to be detached shall be detached on the date of judgment, and be freed from the government of the corporation from that date, and section 4106 must refer to that date when it says: “at the time of its (the land) separation therefrom. ’ ’ The language is clear and unambiguous, and under such circumstances there is no occasion for construction. (State v. Jutila, 34 Ida. 595, 202 Pac. 566; Drainage Dist. No. 2 v. Ada County, 38 Ida. 778, 226 Pac. 290; State v. Armstrong, 38 Ida. 493, 33 A. L. R. 835, 225 Pac. 491; State v. Malcom, 39 Ida. 185, 226 Pac. 1083.) The matter of detachment is purely legislative, and the legislature has the right to fix whatever date they see fit as the date of detachment, which is the date of judgment, and we deem it binding herein, hence the lands had not been detached when the bonds were issued. Appellant contends that proceedings of the board of trustees initiating the bond issue and levying the tax upon the detached lands were void for the reasons that: While *340 the board consisted of 5 members, the rules were suspended and votes taken upon the ordinance calling the bond election, etc., by only 3 members of the board, only 4 being present, '% of those present, but not % of the total number of the board, and that under section 4062, C. S., such action was not authorized. Section 3904, C. S., however, provides that at a meeting of the board a majority of the trustees constitute a quorum to do business. If a majority of the board is a quorum to do business, % thereof would have the right to' suspend the rules, otherwise section 3904 would be ineffective and such construction is not out of harmony with section 4062, supra. Appellants further contend that the annual appropriation bill for 1925 did not contain an appropriation for the payment of the bonds, or interest thereon. Section 4053, C. S., requiring the annual appropriation by the last paragraph clearly exempts a bond issue authorized by an election from the operation of the statute. The bonds herein were voted at an election called for that purpose, and the ordinance initiating the bonds (Plaintiffs’ Exhibit “G,” sec. 4), provided for an annual levy and appropriation to provide for the payment of principal and interest for that year and the years thereafter. Each year thereafter an estimate was made, and the yearly appropriation ordinance passed, making the necessary levy and appropriation, and the' statutes were thus complied with. Appellant further contends that the ordinance calling the bond election and the ordinance making the levies to pay the interest and sinking fund on these bonds, specified that the levy was made on ‘ ‘ all taxable property in the original Village of Oakley, Idaho,” and that because the general taxes for the year were levied on all taxable property within said village as it now exists, the ordinance was uncertain,' since it is contended that the original village did not contain all the detached lands. The situation arises by reason of the fact that in 1896 in the county commissioners’ proceedings for Cassia county, book 2, page 357, appears a petition *341 and approval thereof, to incorporate the Village of Oakley, with territory which does not embrace all of the detached land. The record is silent as to whether the village functioned after that date. April 11, 1904 (Commissioners’ Proceedings, book 3, page 136), the commissioners granted a petition for the incorporation of the Village of Oakley, including all of the detached lands, without reference to the preceding organization. Senate Bill No. 32, Session Laws 1905, page 330, made legal and valid the incorporation of 1904, and from the record it appears that since that time such has been considered by the Village, and its inhabitants as the original incorporation. The court was justified in determining that the ordinances in question referred to the description contained in the incorporation of 1904, and not 1896, which conclusion is further strengthened by the fact that the bonds were stated to be general obligations of the village without restriction to any area. This ordinance was sufficiently clear and explicit. (Beem v. Davis, 31 Ida. 730, 175 Pac. 959; State v. Holder, 49 Ida. 514, 290 Pac. 387.) The bonds being general obligations of the Village, and valid levies having been made against the detached lands before their detachment, and only ministerial acts of the officers requested by respondents, the judgment is affirmed. Costs awarded to respondents. Lee, C. J., and Varian, J., concur.