People ex rel. German Insurance of Freeport v. Getzendaner

Mr. Chief Justice Scholfield delivered the opinion of the-Court : That the bonds described in the petition were lawfully is.sued and are now binding obligations of the town, is settled by Chicago and Iowa Railroad Co. v. Pinkney, 74 Ill. 277, and Harmon et al. v. Auditor of Public Accounts et al. 123 id. 122, and questions in that respect are no longer open to discussion-The only question affecting the amount due to the petitioner from the town, not settled by the decisions in those cases,, relates to interest upon the bonds after due. The language-of the bonds, respecting interest, is, the town shall pay the principal “on the 1st day of May, A. D. 1885, to the said Chicago and Iowa Eailroad Company, or bearer, at the Third National Bank of Chicago, Illinois, with interest at the rate of ten per cent per annum, payable, annually, on the 1st day of May, upon the delivery of the coupons severally hereto annexed,” and the contention on behalf of the respondents is, inasmuch as no coupons were issued for interest to accrue- . after the maturity of the bonds, it was not intended the bonds- ' should bear interest, after their maturity. We are committed to a contrary rule. In Phinney v. Baldwin, 16 Ill. 108, the-question was, whether a promissory note, payable thirty days after date, and bearing interest from date at the rate of five-per cent per month,- bore that rate so long as the principal remained unpaid, and it was held that it did. This ruling was re-affirmed in Etnyre et al. v. McDaniel, 28 Ill. 201, and it was followed by the Supreme Court of the United States in Ohio v. Frank, 103 U. S. 697, where the question was,-whether a township bond, payable at a time mentioned, with interest from date at a specified rate, bore the same rate of interest after maturity, in the absence of an express promise to that effect, and it was held that it did. Pruyn v. City of Milwaukee, 18 Wis. 367, is, so far as concerns this question, precisely analogous to the present case, and it was there ruled that the bonds bore the agreed rate of interest after as well as before maturity, and notwithstanding no coupons were issued for that interest. It was, among other things, said in the opinion: “It is said that the bonds in this case were made payable on a specified day, ‘together with interest thereon at the rate of ten per cent per annum, payable annually, on presentation of the annexed warrants,’ and that this language manifests an intention of the parties that the rate of interest stipulated should cease on the maturity of the bonds. We confess we are unable to discover any such intention or design, express or implied, in this language. By the clause in the bond above cited, the parties provided for the payment of interest annually, at the rate specified, on the presentation of the coupons. Quite likely the parties expected the bond would be paid at maturity; but if it were not so paid,, we have no manner of doubt but that it was expected and intended that the bond should draw interest at ten per cent until paid.” See, also, Tiedeman on Com. Paper, sec. 412, and eases cited in note 3; Jones on Corp. Bonds and Mortgages, sec. 260, and cases cited. But it is contended on behalf of counsel for respondents, that, conceding the relator is lawfully entitled to the amount claimed in its petition, yet, inasmuch as its claim has never been reduced to a judgment, it is not entitled to proceed by mandamus. It is provided in the twelfth section of the act to incorporate the Chicago and Iowa Railroad Company, (2 Private Laws of 1869, p. 962,) that “any town * * * so * * * donating its bonds shall, by its proper corporate authority, annually thereafter assess and levy a tax upon the taxable property of such town * * sufficient to pay and liquidate' the annually accruing interest on such bonds, and so much of ■ the principal thereof as from time to time shall become due,—. which taxes shall be levied and collected in the same manner as other corporate taxes in such town.” There is, therefore, here presented a lawful debt against the town, for the pay- - ment of which it is the duty of its proper officers to assess and levy a tax upon the taxable property of the town, and the failure of those officers to perform that duty; and it is clearly; settled by the weight of authority that mandamus lies in such case to compel the levy and collection of the requisite tax,. and its payment to the lawful holders of the indebtedness. Maddox v. Graham, 2 Metc. 56; Shelby County v. C. and O. R. R. Co. 8 Bush, 209; Comrs. of Knox County v. Aspinwall, 24 How. 376; Commonwealth v. Pittsburgh, 34 Pa. St. 496; Commonwealth v. Comrs. of Allegheny County, 37 id. 277; 32 id. 218; State v. Comrs. of Clinton County, 6 Ohio St. 289; Pegram v. Comrs. of Cleveland County, 64 N. C. 557; Comrs. of Columbia County v. King, 13 Fla. 451; Robinson v. Supervisors of Butte, 43 Cal. 353; Comrs. Court v. Rather, 48 Ala. 433; Comrs. of Sedgewick County v. Bailey, 11 Kan. 631; State v. Anderson County, 8 Baxter, 249; Flagg v. Mayor, 33 Mo. 440; The People v. Mead, 24 N. Y. 114. The cases cited by counsel for respondents from the Reports of the United States courts, (Jerome v. Comrs. of Rio Grande County, 18 Fed. Rep. 873, County of Green v. Daniel, 102 U. S. 187, Davenport v. County of Dodge, 105 id. 237, and Chickamauga v. Carpenter, 106 id. 663,) rest upon the fact, that the Circuit Courts of the United States are creatures of. statute, and have only so much of the judicial power of the. United States as the acts of Congress have conferred upon them, and those acts have conferred upon them no power to • issue writs of mandamus as an original proceeding, but they, are empowered to issue them only when such writs are necessary to the proper exercise of their existing jurisdiction, as, in the enforcement of judgments at law against municipal corporations. See Bath County v. Amy, 13 Wall. 244; High on Extraordinary Remedies, sec. 302. In Rogers v. The People, 68 Ill. 154, cited by counsel for respondents, the statute prescribed a specific mode for the collection of the judgment against the school directors, which was adequate, and held to be exclusive, and so mandamus would not lie. In Coy v. City Council of Lyons, 17 Iowa, 7, also cited by counsel for respondents, the ruling is, simply, that “where a debt remaining in its original form as a simple contract debt, the creditor has no legal right to a mandamus to compel the city to levy and collect a tax for its payment, unless the debt is contracted under a special law or vote authorizing such proceeding to enforce payment; but where the debt has been reduced to judgment, there is then devolving upon the city authorities a perfect legal duty and obligation to provide for its payment.” There was like ruling in this court in The People ex rel. v. Clark County, 50 Ill. 214, where it was sought, by mandamus, to compel the levy and collection of a tax for the payment of a county order drawn upon the general revenue fund, and it was held that mandamus would not lie, but that the holder of the order must first reduce it to judgment. In such cases no single general creditor has a right to any previously ascertained specific part of the general revenue, and there is, moreover, judgment and discretion to be exercised by the municipal authority with respect to the purpose and amount of general revenue which they shall annually cause to be collected by taxation upon the taxable property of the municipality; and they are therefore in nowise analogous to cases like the present, where there is a specific duty to levy and collect taxes for the payment of particular debts, in which there is neither judgment nor discretion to be exercised by the municipal authority. We have often held, that to authorize a mandamus to be issued, the petitioner must show a clear legal right. The People v. Forquer, Beecher’s Breese, 104; The People v. Chicago and, Alton Railroad, Co. 55 Ill. 95; The People v. Glann, 70 id. 232; The People v. Village of Grotty, 93 id. 180; Lavalle v. Soucy, 96 id. 467; The People v. Dulaney et al. id. 503. And all of the cases cited by counsel for the respondents which we have not herein commented upon, belong to this class,—the facts were not admitted, and the amount or the right involved presented an issue of fact. “It is not the province of mandamus,” says High in his work on Extraordinary Remedies, (see. 339, 2d ed.) “to settle the differences of opinion between municipal authorities and claimants, as to the amount due for services rendered. All such cases of disputed accounts or claims against the municipality should be referred to the arbitrament of a jury or to the ordinary process of the courts, and they can not be determined by proceedings in mandamus.” (See, also, Barnett v. Auditor, 12 Ohio, 54, and Commonwealth v. Comrs. of Allegheny County, 16 S. & R. 317, cited by the author in support of his statement.) But there are here no facts in dispute. The allegations of the petition are admitted by the demurrer to be true, and the only contention is in regard to a conclusion of law, as to which, in our opinion, there is no-doubt, and the case is therefore clearly within the authority of Maddox v. Graham, and other cases cited supra, holding that mandamus will lie. It is further contended by counsel for the respondents, that as to the county clerk, town collector and county collector, (treasurer,) mandamus will not lie, because it is not made to appear that those officers, or either of them, have or has, up to this time, refused to extend, collect or take any steps re-_ ¡quired of them, or either of them, by law, in reference to the :matter in dispute. This loses sight of the controlling fact, here, that the duty to pay is that of the town, as a corporate .body, and not of individuals, although that duty can only be discharged through the acts of individuals. The failure to pay is that of the corporate body, and it is because of that failure only, and to compel the performance of the corporate ■duty in that respect, that a mandamus will be awarded. Were a like duty required to be performed by a natural person instead of by an artificial person, under such circumstances that mandamus would lie, no one would suppose it necessary to prosecute a separate suit to enforce the performance of each distinct step necessary in the collection and paying over of the money; and yet there can, in theory, be no difference between a natural and an artificial person, in this respect. The different officers appointed by law as the agencies and instrumentalities through which corporate action shall be taken, are to the corporate body but as the members of the natural person, through which he or she can alone act, are to that person; and in either case, to coerce action of the parts it is only necessary to inquire, is there a right to coerce action of the person, either natural or artificial, the person being responsible for the failure to act. It would, therefore, in the present ■case, doubtless, have been sufficient to have filed the petition against the town, without naming individuals, to have obiained a peremptory mandamus to each of the agencies and instrumentalities through-which it must act to make payment •of the claim due the relator; but it was competent to make the individuals whose dúty it is to act, parties, as was here done. (Village of Glencoe v. The People, 78 Ill. 386; Sheaff v. The People, 87 id. 189.) But it is, obviously, in either ■event, the action of a corporate body, and not the action of natural persons, as such, merely, that is to be enforced. The question involved in this contention of counsel for the respondents is exhaustively discussed, and decided against them, in Labette County v. Moulton, 112 U. S. 223. See, also, Farnsworth v. Boston, 121 Mass. 173; Attorney General v. Boston, 123 id. 123; King v. Mayor of Tregony, 8 Mod. 111. The person acting as town clerk was not personally served, with the summons. It is claimed, and with some show of reason, that he avoided personal service in order to defeat the-awarding of the peremptory writ. We do not think it necessary to inquire into this, and ascertain what is the fact. All. of the town auditors except the town clerk were personally-served. It is competent for them to proceed to act, and if,, when they do so, the town clerk shall be absent, and not performing the duties of his office, it will be their duty to declare-the office vacant, and to appoint a town clerk in his stead.. (2 Starr & Curtis’ Stat. chap. 139, art. 10, secs. 1, 2; art. 13,. secs. 1, 2, same chapter.) And the same is true with regard to any other member of the board. The demurrer is overruled, and judgment is rendered awarding a peremptory writ, as prayed in the petition. Mandamus awarded.