State ex rel. Boulton v. Norvell

GILL, J. [183] Statement. [182] This is a proceeding in mandamus, whereby tbe plaintiff, or relator, seeks to compel tbe defendants, municipal officers of Columbia, to levy a¿ud collect a tax to pay a [183] judgment which the plaintiff recovered against said city. The alternative writ, after reciting the recovery of the judgment, demand for its payment, issue of execution with return of nulla bona, that it was the duty of defendants as mayor and councilmen of said city to provide for its payment, which they had failed and refused to do, and that there was no money in the city treasury to pay the same, etc., then commands said officers to proceed and levy, assess and collect the annual taxes in said city, within the constitutional limits, and when said taxes should be collected by the proper officers to pay out of the same plaintiff’s judgment, interest and costs after reserving the amount necessary to pay the reasonable salaries allowed by law to the officers and police force of said city, or show cause at a future sitting of the court why they should not do so. To this alternative writ, defendants made return or answer, admitting their official relations to the city of Columbia, that plaintiff had an unsatisfied judgment of $1,695, besides interest and costs, against said city, that on said judgment execution had been issued and returned no property found, and then, for further answer or return, allege, that before the issuance of this writ, to wit, in June, 1898, the said mayor and city council had by ordinance levied to the full constitutional limit all the taxes they were authorized to for the fiscal year 1898, but that no part thereof could be used to pay plaintiff’s judgment, as the whole thereof was needed (1) to pay the reasonable salaries of the several city officers and police force as provided by law, (2) to pay the annual rentals due the Water & Light Company for supplying the city with water and lighting the streets in accordance with a contract existing between said water company and the city, (3)for payment of certain floating indebtedness of the city then due or falling due during the year, and (4) for the payment of the interest due or coming due on the city’s bonded indebtedness. [184] Thereupon the plaintiff (relator) filed her motion, taking exception to the sufficiency of the answer or return, claiming that it failed to state facts sufficient to constitute a valid and legal excuse for the nonperformance of the commands of the alternative writ, and she prayed the court to award a peremptory writ. This motion was sustained at the November term, 1898, and a final judgment or peremptory order was made in practical conformity with the alternative writ first issued. Prom,-this judgment defendants appealed. Appelate practice: motion in arrest: mandamus. I. Relator’s counsel make the point that since defendants have brought the case here solely to test the character and sufficiency of the return and peremptory writ (analagous to the answer and final judgment in an ordinary case), and that said defendants failed to invoke the corrective power of the lower court by motion in arrest, there is nothing here for this court to review. Owing to some doubt as to the Proper ruling on this mere technical question, we have concluded to pass it by and deal directly with what appears to be the merits of the case, since, at all events, we believe the relator clearly entitled to the relief obtained. Municipal corporations:mandamus to pay judgment: statute. II. The following statute becomes pertinent to this controversy: “Section 4911. Whenever an execution, issued out of any court of record in this state, against any incorporated' town or-city, shall be returned unsatisfied in whole or in part, for want of property whereon to levy, sirch court at the return term or any subsequent term-thereof, shall, by writ of mandamus, order and compel the chief officer, trustees, council and all other proper officers of such city or town, to levy, assess and collect the annual taxes in such town or city from year to year as occasion may require, within the constitutional limits, and order the same, when collected by the proper officer or officers, to be paid to the execution creditor, his agent or assigns, except such amount as may be necessary [185] to pay the reasonable salary allowed by law tm the mayor, council, assessor, marshal, constable, attorney and a reasonable police force of any such town or city.” This section was intended clearly to provide for just such a case as we have here. It was meant as a summary proceeding against the city officials. No formal petition for mandamus is necessary; it is sufficient merely to exhibit the judgment and execution with return of no property found and request the court’s action. State ex rel. v. Slavens,75 Mo. 508. That a petition is presented however can do no harm, or effect the application of the statute to the given case. _._.___ priority. Erom the return it will be seen, that the city officers of Columbia, in order to defeat this proceeding, rely on the following set out substantially in said answer or return: that in the power of taxation they are restricted to fifty cents on the $100 assessed valuation and that this would raise no more revenue than was necessary to pay (1) the salaries of city officers including a reasonable police force, (2) the $6,850 which the city contracted to pay annually for water and light, (8) the several floating debts of the city, and (4) interest on the bonded debt of the city. Therefore the contention is that these matters are entitled to priority over the relator’s judgment and that she has no relief. The statute before quoted is a complete and satisfactory answer to defendants’ contention. Manifestly the only city indebtedness intended to be preferred was that due the city officers on account of salary and that necessary to employ and pay a reasonable police force. That statute authorizes mandamus to go for the levy and collection of annual revenues within the constitutional limit (in this case fifty cents on the $100 valuation), and out of this first to pay salaries of city officers including police, and the remainder then to be applied to the satisfaction of the judgment debt which is the basis of the mandamus proceeding. There is nothing in the statute, [186] or any other law, justifying' the claim that water rents, floating indebtedhess, interest on city bonds or other contract claims against the city are to be given precedence over a judgment against the same municipality. The trial judge therefore was correct in holding the aforesaid indebtedness had no such priority as claimed in the return and that said pleading contained no legal excuse for failing to levy, collect and pay as required by the alternative writ. Mandamus: peremptory following alternative writ: time of levying tax: power of city council. III. The objections made to the peremptory writ because not following the alternative are without any substantial merit. It is true that the alternative writ, issued when the suit was begun, commanded immediate action by the city officers or to show cause, and that when the ensuing fiscal year. This was all the court could do under the circumstances and the order was in practical harmony with the first writ. It is also true that these defendants (the mayor and councilman) do not per-revenues, and yet as officers of a city of the third class, they “have the care, management and control of the city and its finances” (section 1494, Revised Statutes 1889), have also the power by ordinance to provide for the levy and collection of taxes for general revenue purposes (section 1495), have power to levy and direct the collection of taxes on merchants (section 1507), and the mayor is intrusted with the power and authority to draw warrants on the city treasury for the payment of all obligations (sections 1476, 1485). These defendants are the principal or chief governing officers of the city, and while not in person performing some of the duties pertaining to the assessment, levy and collection of taxes, they yet supervise and direct the municipal machinery. sonally perform the acts of assessing and collecting the city’s In short then we do not interpret- or deem the peremptory writ as varying in any substantial particular from the alterna [187] tive writ. The difference between tbe two is merely verbal and not material, and therefore may be disregarded. State ex rel. v. Joplin Water Works, 52 Mo. App. 312. Tbe judgment of tbe circuit court will be affirmed. All concur.