People ex rel. Frank v. Bd. of Supervisors of San Francisco

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring. — 695 — On the nineteenth of April, 1856, the Legislature passed an act for the government of the City and County of San Francisco, commonly known as the “ Consolidation Act.” Its first section provides that the City of San Francisco shall continue a corporation by the name of the City and County of San Francisco, and possess the same rights and be subject to the same liabilities as before. Its second section vests in the city and county the public buildings, lands, and property, rights of action, money, revenue, and income belonging either to the City or to the County of San Francisco. Its fourth section enacts that provision shall be made from the revenues of the city and county for the payment of the legal indebtedness of the city, and also of the county; and that in case it shall become necessary, for the purpose of providing for the city indebtedness, to increase the taxation beyond a designated rate, the increased taxation shall be levied and assessed upon property situated within the limits of the city, as- defined by the charter of 1855, and not upon property outside of those limits. At the time, and long before the act in question was passed, the City of San Francisco was indebted to one Henry W. Seale in an amount exceeding $58,000. To recover this amount, Seale instituted suit against the city, which was pending when the Consolidation Act took effect. In April, 1857, he recovered judgment in the Superior Court, and in July, 1860, on appeal to the Supreme Court, the judgment was affirmed. This judgment has never been paid, and on the twentieth of October, 1862, it was duly assigned to the relator, who has ever since been its holder and owner. Subsequently, on that day, the relator demanded of the Board of Supervisors of the City and County of San Francisco, in a regular and public session of the Board, to make provision for the indebtedness due on the judgment, in accordance with the requirements of the fourth section of the Consolidation Act. The Board neglected and refused to make any provision on the subject; and the present application is for a mandamus to compel that body to obey the law in this respect. At the time of the demand there was in the treasury of the city and county, of the revenue of the fiscal year ending in June, 1862, a large amount of money, more than sufficient to pay the indebtedness upon the judgment, unspent and unappropriated. — 696 — The application is resisted on various grounds, several of which are unsupported by the facts of the case; and to them we shall not give any consideration. We shall only notice those which go to the merits of the proceeding. The latter are substantially as follows: First: That the existing corporation, “ the City and County of San Francisco,” is not identical with the former “ City of San Francisco ;” and the judgment rendered against the city is not therefore binding upon the city and county. Second: That the provision of the fourth section of the Consolidation Act, respecting the preexisting indebtedness of the City of San Francisco, is a mere declaration of good faith towards the public creditors, and not a requirement imposing any duties upon the Supervisors ; and, Third: That mandamus is not the appropriate remedy to enforce the claim of the relator. 1. The first position is answered by the language of the act, which is clear and unmistakable. The corporation—the City of San Francisco—is not destroyed, but continued. Its name only is changed, and the change in this respect did not require any alteration of the pleadings, nor any suggestion upon the record. If, pending a suit against an individual, the Legislature should change Ms name, the fact would not abate the suit, nor call for any special action on the part of the adverse party, or of the Court. Where any change is suggested, the vital question is not one of names, but of persons—is the same mdividual, whether natural or artificial, in existence ? If tMs can be answered in the affirmative, the case is not abated, but proceeds to its final disposition. 2. The provision of the fourth section is not a mere legislative declaration of good faith toward the public creditors. It is not a mere pledge that, at some future period, provision shall be made by the Legislature for the payment of the previous indebtedness of the city. The language is that of command from a superior to an inferior body. The act declares that the liabilities of the city shall survive and continue ; it vests all the public property, revenue, and moneys of the city in the city and county; it places the government of the city and county in the hands of the Supervisors; and it declares that provision shall be made for the payment of the debts of the city, and designates the source from which the pay — 697 — ment shall be made—“ from the revenues ” of the city and county. It even looks to the possibility of taxation above a designated rate, and directs the mode in which, in that event, the increased taxation shall be levied. It is impossible, without a violation of the most obvious rules of construction, to view the clause in question in any other light than as a command to be obeyed, and not as a promise to be subsequently carried out by future legislation. The construction for which the respondents contend would convict the Legislature of intending to do manifest injustice. Their theory is that the Legislature has taken from the original corporation all its rights and property, and vested them in a new and different corporation, and thus deprived the creditors of all means of enforcing payment of their debts, and in return has simply given them the assurance that some future Legislature, the action of which it could not control, would provide for their case and render them justice. It would require very clear language to induce the Court to attribute any such purpose to the Legislature. A provision adopted with that view would hardly be characterized as a “ declaration of good faith.” We do not think that the Legislature designed any such purpose. We do not think that it ever intended by the act in question to postpone indefinitely the payment of the existing liabilities of the city, and to mock the creditors with a promise that they should ultimately be provided for by some uncertain action of some future representatives of the people. 3. Mandamus is the appropriate remedy to enforce obedience on the part of the Supervisors to the legislative command. In issuing it the Court does not assume the province of controlling their discretion, where that exists. But here the Supervisors have no discretion, except between two courses of procedure. They must provide for the payment of the just debt of the relator, established by the highest record evidence known to the law. They must appropriate the money from the revenues of the city and county already in the treasury, or they must raise the money by taxation. Their authority is ample, and their duty plain. And it would seem that no direction from a Court ought to be considered necessary to induce the performance of so manifest a duty with reference to — 698 — the just obligations of the City of San Francisco. The delay in doing justice has already swelled the amount of the relator’s claim from fifty-eight to over one hundred thousand dollars, independent of the necessary expenses incurred by the city and county in attempting to avoid liability. That liability having been determined, no reasonable excuse can be offered for further delay on the part of the Supervisors in making the provision directed by the statute. The ninety-fifth section of the Consolidation Act does not apply to judgments recovered upon the preexisting indebtedness of the city. Such judgments can acquire no additional validity by being audited, nor is provision the less to be made for their payment because of the restrictions of that section and of other clauses of the act. However broad the terms of the section in question, or of other clauses, they must be read in connection with the fourth section, and receive such a construction that the provisions of all may stand, and right and justice be done. It is of no consequence that the mode in which the provision shall be made—the machinery for effecting the payment—is not specially pointed out by the act. The legislative command is to make provision for the payment from certain sources. The duty carries with it the means. In imposing the duty upon the Supervisors, the Legislature authorized them, without further designation, to take all the ordinary measures essential to its complete performance. They can appropriate from the revenues; they can levy a tax; and the adjusting of the details is a mere matter of administration which can be had under the direction of any of the officers of the corporation specially designated for that purpose. (Commonwealth v. Commissioners of Alleghany County, 8 Casey, Penn. 218; Commonwealth v. Pittsburg, 10 Id. 496; Maddox v. Graham et al., 2 Metcalf, Ky. 57.) It follows that the judgment of the Court below must be reversed, and that Court directed to issue a peremptory mandamus in accordance with the prayer of the petition of the relator; and it is so ordered. — 699 — The Respondents filed a petition for rehearing, upon which Cope, C. J.* delivered the opinion of the Court—Norton, J. concurring. The petition for a rehearing in this case must be denied. The point suggested in it was fully considered when the case was decided. The provisions of the Consolidation Act in regard to the payment of the indebtedness of the city are mandatory and imperative, and the Supervisors have no discretion upon the subject. It is provided, in the first place, that the indebtedness of the city shall continue against the city and county, and in the second place that provision shall be made from the revenues for its payment. There is a general provision giving to the Supervisors the power to provide by regulation for carrying the act into complete effect. The idea that further legislation is contemplated has no foundation to rest on. The act declares in plain words that “ provision shall be made,” and the power to make it is conferred upon the Supervisors, and not reserved to the Legislature. The language is unambiguous, and the intention clear, and the duty enjoined is one which the Supervisors have no right to disregard, and cannot refuse to perform. They are the creatures of the act, and whatever the act requires of them they are bound to do; them duty is simply that of obedience. They must do what the act enjoins, and refrain from doing that which it prohibits, and their duty is no plainer or more imperative in the one case than in the other. The fact that the duty required of them involves the passage of an ordinance makes no difference; the duty itself is no less incumbent upon them because they must perform it in a particular way. It certainly cannot be that a duty positively enjoined may become a matter of discretion by reason of the character of the proceedings necessary to its proper discharge. There is a suggestion to that effect in the case of Lynch v. The Mayor, etc., of the City of New York (25 Wend. 680) but it is entirely unsupported by either principle or authority. The case was an application for a mandamus to compel the payment of the plaintiff’s salary as a Judge, and the decision was put mainly upon the ground that the plaintiff had an adequate remedy by action. In a subsequent case between the same par700 . ties, the application was denied on that ground exclusively, the “power of the Court to issue the writ and compel obedience to it being expressly affirmed. (2 Hill, 45.) It is true the Legislature had interposed, and directed the auditing and allowance of the salary, but the duty thus enjoined was regarded in the former case as existing under the law as it then stood. On the point in question, therefore, the latter case is an overruling authority, and there is, in our opinion, no doubt of its correctness. The present case differs from it in the fact that the application is based upon a judgment, and nothing remains but the duty of payment. This duty is cast upon the Supervisors, and the mode of discharging it clearly pointed out, and whatever is required for that purpose they must do. If an ordinance is required, they must pass it, and it is no answer to say that the passage of an ordinance is a legislative act implying discretion; There being no discretion as to the duty to be performed, there can be none as to the use of the means required in performing it. It is said that in passing an ordinance the assent of a majority of the Supervisors is necessary, and that there is no power in the Courts to compel them to give it. They act in such cases by vote, and the argument is that the right to vote includes the right to vote either for or against, according to the will of the voter. This argument, as applied to the case of an imperative duty, is manifestly erroneous, and we see nothing in it which is not met by what has already been said on the subject of discretion. In the absence of discretion as to the thing to be done, the Supervisors have no volition except to do it, and to assert the contrary is to assert that their will is superior to the law. We cannot dictate the action to be taken, but we can compel them to act, and their duty is too plain to be misconceived. It consists simply in making provision for the payment of the debt, in accordance with the mandate of the Legislature. The revenues are designated as the source of payment, and they must either appropriate the amount from moneys in the treasury, or levy a tax to obtain it. In support of these views, and in further elucidation of the subject generally, we propose to examine a few authorities. In the case of Thomas v. The Commissioners of Alleghany County (32 — 701 — Penn. 218) a mandamus was issued to compel the Commissioners to make provision for the payment of the interest on certain bonds of the county. The bonds were given in pursuance of an Act of the Legislature authorizing the county to subscribe to the capital stock of the Pittsburg and Steubenville Railroad Company, and to borrow money to pay the amount of such subscription. The Commissioners were empowered to make provision for the principal and interest of the money so borrowed, as in other cases of loans to the county; and the Court held that the existence of the power created a corresponding duty which the Commissioners were bound to perform. The case of Hamilton v. The Select and Common Councils of the City of Pittsburg (34 Penn. 496) establishes the same principle, and the question of the remedy by mandamus is discussed in the opinion of the Court with much ability. The writ was asked to compel the two councils to make provision, by the assessment and collection of a tax, for the payment of the interest due on money borrowed by the city to pay a subscription to the stock of the Chartiers Valley Railroad Company. The act under which the money was borrowed vested in the city the power to make provision for the payment of the principal and interest by the assessment and collection of a tax, and a different act gave to the Select and Common Councils a general power to assess and collect taxes for the use of the city. It was objected on the argument that neither of these acts imposed a duty upon the Councils to assess and collect the tax, but the Court overruled the objection, and said: “ It is absurd to argue that conferring such a power is imposing no duty. The Select and Common Councils are public agents, created to perform a public trust. One of the purposes of their creation is, that they may provide for the payment of the debts of the city. It is true the Act of 1853 only declares that the city shall have power to make provision for the payment of the principal and interest of the money borrowed, by the assessment and collection of a tax; but in a statute the word may means must or shall, in cases where the public interest or rights are concerned, and where the public or third persons have a claim de jure that the power shall be exercised. The duty of the city is therefore imperative to assess and collect the tax, and the power and corresponding duty are, by — 702 — one of the acts referred to, devolved upon the Select and Common Councils.” In Maddox v. Graham, Knox (2 Met. Ky. 56) the Common Council of the City of Maysville had been authorized and required to levy and collect a tax for a particular purpose, and it was held that mandamus was the proper remedy to compel performance of that duty. The Court, after stating the facts and citing a number of authorities, said: “ We have had occasion to observe that the supreme law-making power of the State has given power to and imposed an obligation on the City Conned to do a particular act, and that no specific remedy had been provided for nonperformance. Certainly, according to the authorities cited, the Court will, in order to prevent a failure of justice, grant the writ to command the doing of the act enjoined by the statute.” In Carroll v. The Board of Police (28 Miss. 38) a mandamus was awarded requiring the defendants to raise by taxation an amount sufficient for the payment of a claim which they had previously audited and allowed. On the question of remedy the Court said: “ It has been argued on behalf of the defendants, that the relator had a full and complete remedy, either by bill in equity or by an action at law. This argument has already been incidentally met in considering other points made in the defense. The manner in which and the tribunal before which a claim against a county must be enforced are clearly defined by the statute. This tribunal has long since acted in regard to the claims now in controversy. They have been as definitely ascertained, and judgment directing their payment as clearly pronounced, as it is possible for any other Court, even if it had jurisdiction, to pronounce a judgment in the premises. There is no unsettled or open question as to the amount to be paid, but only whether the sum already adjudged shall be paid as directed by the order of the Board of Police. The question is, by what means shaE this judgment be enforced ? It has already been said that the Board of PoEce by them judgment tacitly agreed to provide the means, in the mode pointed out by law, with which to pay the warrants directed to be issued on the treasury of the county. Indeed, such was the nature and operation of the judgment itself. If a suit could be maintained at aE at law, it would be against the members of the Board as individuals for failing to discharge their — 703 — duty as public officers in levying the tax required by law to pay the debt of the county. This might be, to say the most, a very inadequate remedy to the creditor. He, in making his contract, trusted to the ability of the county to meet the engagement, and not to the individual responsibility of the members of the Board of Police. The county, by the contract, became his debtor, and it is to the party trusted that he has a right to look for payment. The Board of Police, as the public agents of the county, and as the officers of the law, undertook to do what was necessary and required of them by law, to compel the county to execute the contract. As public officers they have failed in discharging their duty in this respect. As public officers them action is still necessary to enable the creditor to get his rights, as adjudged and settled by the Board of Police, and the question is, whether there is any other remedy than that by mandamus which can accomplish this object. If there be any other, counsel have failed to point it out, and it is certainly unknown to the jurisprudence of this State. There is, therefore, no doubt as to the remedy.” These cases are but examples of what has been said and done by the Courts generally on this subject, and there is no ground upon which the case at bar can be distinguished from them in respect to the remedy sought. In all of them, and in many more which might be cited, the writ was directed to municipal bodies similar in their organization to the Board of Supervisors, and it has never been doubted that such bodies were subject to the control of the Courts in respect to the duties enjoined upon them by law. The rule to be collected from the cases is, that where a statute gives power to or imposes an obligation on a particular person or body, to do a particular act or duty, and provides no specific legal remedy in case of nonperformance, the Court will, in order to prevent a failure of justice, grant the writ to command the doing of such act or duty. It is obvious that the case before us falls within this rule, for the statute not only gives the power, but expressly imposes the obligation, and the plaintiff has no other remedy, either under the statute or independent of it, by which he can obtain the benefit intended to be seemed to him. The debt belongs to the class referred to in the statute, and the duty of providing for its payment is devolved — 704 — upon the Supervisors, and the plaintiff has a right to demand that this duty shall be performed; the only and consequently the proper remedy to compel it being that by mandamus. We regard the case as a very plain one, and are entirely satisfied with the conclusion previously arrived at. The petition is denied. Footnotes [*] See note to page 667.