City Council of Eufaula v. Hickman

STONE, J. 1. The principle must be regarded as settled,, that when municipal corporations, having the power to levy a tax for the payment of their bonded indebtedness, fail to do so, and fail to pay such debt, the writ of mandamus will lie, to compel the officers in whom the power and duty reside to levy such tax. This is the only adequate remedy for enforcing this clear legal right.—High. Ex. Legal Rem. § 324, et seq.; Moses on Man. 126-7; Com. ex rel. v. Pittsburgh, 34 Penn. St. 509. 2. It is said that the ancient rule, in such cases, was to direct the writ to the city government by its corporate name, while the modern practice is, to direct it to the several members of the municipal government, whose duty it is lo levy the tax. The advantage in pursuing the latter course is shown in this: that while the duty can be as clearly commanded in the one form as in the other, yet, when it becomes necessary to compel obedience by attachment, such writ can not be enforced against the corporation in its corporate name. The names of the persons composing the governing body of the municipality must be brought before the court that they, in their official capacity, may, by the mandate of the court, be compelled to perform the required function. They are required to act officially and collectively, but for failing to act, they can only be attached and punished as individuals. •Lienee, the preference given to the modern practice, which [341] proceeds against the governing members of the corporation in their several names as such.—Moses on Man. 126-7-8; Dillon on Mun. Corp. §§ 665, 686, et seq.; High. Ex. Legal Rem. 337; City of Louisville v. Kean, 18 B. Monroe, 13; Mayor v. Lord, 9 Wal. 413; Lindsey v. Auditor, 3 Bush. (Ky.) 235; Santer v. City of Madison, 15 Wis. 30, State ex rel. v. Gates, 22 Wisc. 213; Regina v. Mayor, 4 Eng. Law and Eq. 194. 3. In the present proceeding, the Mayor and Couneilmen of the City of Eufaula were proceeded against separately by name, while they were complained of in their official capacity. The duty they were commanded to perform required their official action as a board, exercising governmental powers. Their action must be as an organized board; but, in the process compelling them to act, or punishing them for non-action, they can only be reached as individuals. If the board, by a majority vote, levy the requisite tax, the conduct of a dissenting minority furnishes the excuse for the writ of mandamus. So, if a minority of the council favor the assessment, and the vote of the majority defeats them, the writ of mandamus will be issued to each; but only the recusant members will be adjudged in contempt, should attachment become necessary.—Maddox v. Graham, 2 Metc. (Ky.) 63; High. Ex. Legal Rem. § 337. The failure to act is a dereliction of duty by the board; the penalty for non-action falls alone on the members who cause the failure. A creditor of the corporation can complain alone of the non-action of the board, not of the individual action of members, unless they are sufficient in numbers to defeat action. The trust confided to them in the assessment of taxes, was committed to them as a board, although in the actual assessment a quorum, less than the whole number, may lawfully act. 4. Considering the nature of the official fault complained of, and of the remedy invoked in this case, we think the doctrine of joint and several, and of discontinuance as to parties not served, can not be made to apply. The Circuit Court erred in permitting the relator to discontinue as to the party not served. 5. The certificate of the justice of the peace, given in evidence in this case, was not sufficiently authenticated. It should have set forth a statement of the judgment, taken from the docket, with a copy of the execution and return thereon; and these should have been certified as correct copies.—Revised Code, § 3238; Jones v. Davis, 2 Ala. 730. [342] 6. The coupons, unless their loss was sufficiently shown, should have been produced; or, if that could not be done, should have been proven by examined copies. Reversed and remanded.