State ex rel. Reynolds & Henry Construction Co. v. O'Kelly

The opinion of the court was delivered by Nxcholls, C. J. The first feature of the proceedings below which is to be observed is that they are not original, extra-judicial proceedings, but proceedings taken in the matter of the execution o a final judgment of this court rendered in the matter of a mandamus ordered. Art. 629 of the Code of Practice declares that it is for the court, whether appellate or inferior, which has rendered the judgment to take cognizance of the manner of its execution when the proper manner of executing it is to be determined. It is unquestionably our duty to se,e that the mandamus which issued in the last branch of this ease, when before us, be obeyed. If by the decree of this court the levying of a tax of five mills on the assessment of 1894 had been ordered, and the Common Council had remained perfectly inactive in the premises, it is clear that judicial proceedings would have been taken to enforce the decree of the Supreme Court. The remedy for this inaction would not have been the vain renewal of mandamus proceedings, but proceedings for contempt of court. The same result would have followed if the council, after initiating proceedings for the purpose of execution by the employment of a sub-agency (rendered necessary from the fact that the Common [33] Council itself could not do the particular work needed) had, after steps had been taken by this sub-agent to carry out the decree of this court, given peremptory orders to him to cease all further action. In such case the Council would have been as liable to contempt proceedings as if they had not moved at all. Should such' proceedings have taken place, joining as a party thereto the tax collector (who, we will assume, had ceased operations under orders of the council), the latter would not have been so joined for the purpose of having the council in this new proceeding be decreed to revoke-its staying order to him, and to instruct him through a new order to proceed under the original ordinance, but for the purpose of receiving' from this court itself a direct order to proceed. The Council would not be before the court for the purpose of receiving orders to revoke its staying order, but for that of being punished for contempt. It is argued that the decree of this court was not absolute — that it-left open, subject to the exercise of the discretion of the Common Council, whether the tax should be levied on the tax of 1889, or the-the tax of 1394, and that, having that discretion, neither the Council nor any one acting under its direct orders, could be controlled in the-exercise of that discretion. The court in this instance directed the Council to ascertain certain facts, and on such ascertainment to have a tax levied on the assessment of 1889 or 1894, as those facts would justify. The Council acted upon the particular subject matter thus referred to them, levied a tax of five mills upon the assessment rolls of 1894, and set on foot the machinery necessary for the collection of the tax. The sole matter left uncertain by our decree was thus fixed, and became thereafter substantially written into the decree. If it could be said that there was a discretion conferred upon the Council in the selection of the particular years upon which the tax should be levied, that body had acted upon that discretion, performed the special duty with which it was charged, and there was no attempt to control it in the exercise of its original discretion. The question is whether, after having exercised the power or duty entrusted to it, it can subsequently reverse its action and stay proceedings because it may suppose that its duty was incorrectly performed (5 Cal. 627). We do not think it was charged with the duty of correcting its own mistakes, if mistakes it made. There would be no end to litigation if such a doctrine were true. When the Council levied the tax it was ordered to levy, the subject matter passed out34 •of its hands. It had no further legal interest in the premises. It had performed the specific duty imposed upon it, and its connection with the levying of the tax ceased. Darcantel et al. vs. Slaughterhouse Co. et als., 44 An. 644; 20 Atlantic Reporter, 61. We are of the opinion that the judgment appealed from is erroneous. It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered and decreed that a writ of mandamus issue, directed to W. A. O’Kelly, commanding him to proceed with the collection of the tax ordered to be levied by this court in the judgment rendered by it on the 17th of June, 1895, in the matter of Reynolds & Henry Construction Company vs. The Mayor and City .Council of Monroe, No. 11,835, in accordance with the decree of this court, and the ordinance of the City Council of the City of Monroe, passed on the first day of July, 1895. It is further ordered that appellee pay the costs of both courts.