Graham v. City of Tuscumbia

DOWDELL, J. This is an application by the appellant, Permelia Stull Graham, for' mandamus to compel the municipal authorities of the city of Tuscumbia to levy a tax to pay a judgment recovered by the appellant against the municipality in the circuit court of Colbert county. On the facts averred in the petition for the writ, a proceeding by mandamus is the proper remedy. — City Council v. Hickman, 57 Ala. 338; Tarver v. Commissioners of Tallapoosa, 17 Ala. 527. The debt on which the judgment is founded arose [453] prior to the constitution of 1875, under a special act of the Legislature approved February 16, 1872. Acts 1871-72, p. 378. By this act the board of mayor and aldermen of the city of Tuscmnbia were “authorized in their corporate capacity to subscribe an amount not exceeding three thousand dollars to the capital stock of the Deshler Female Institute Company, incorporated under the laws of Alabama.” It ivas further provided in section 2 of said act “that said mayor and aldermen may raise the amount so subscribed by special or general tax on persons and property of said city, or upon either.” In pursuance of the power and authority given by said act, the board of mayor and aldermen of said city did, on the 11th day of May, 1872, subscribe $2,500 to the capital stock of said institute company. For the stock so subscribed the city issued three bonds, of $833.33 each, and of this indebtedness there remained due and unpaid on the 1st day of April, 1879, the sum of $1,400, and on this date the city issued and delivered, to the owner of said debt of $1,400, 28 bonds, of $50 each, payable in the future, Avitli interest at 6 per cent, per annum. It appears from the. record that this last issue of bonds was in recognition by the city of the balance of $1,400 due and unpaid on the old indebtedness, and was in reality for the purpose of extending the time of the payment of said indebtedness, and not in satisfaction and payment of said indebtedness. The bonds last issued, like the ones first issued, Avere in fact the evidence of the indebtedness created by the subscription to the capital stock. When the city subscribed the $2,500 to the capital stock of the said institute company, it Avas then that the debt Avas created, and the subsequent issue of the 28 bonds Avas but the evidence and renewal of the old debt, and not the creation of a neAv debt. The new issue of bonds in evidence of the debt did not differ in character from the old, and there is nothing in the record to sIioav that the last bonds were intended, and so accepted, as in full payment and satisfaction of the original debt. The facts in the case of Keel v. Larkin, 72 Ala. 502, and Car [454] rier v. Ticknor, 26 Ala. 576, are different from those in the case before us, and there is nothing decided in those cases in conflict with what we had said above, but what was there said is in harmony with what we have stated the law to be on the facts here. All questions as to the validity of the bonds on which the judgment was based were between the parties foreclosed and concluded in the rendition of the judgment; no fraud being charged in obtaining the judgment.— Mayor and Aldermen v. Wetumpka Wharf Co., 63 Ala. 611; Mayfield’s Dig. p. 1162, § 611. The debt having axfisen prior to the constitution of 1875, on the undisputed facts in the case, the board of mayor and aldermen of the city of Tuscumbia had the power and authority to levy the tax, and it was their duty to do so to pay the judgment. As was said in Tarver v. Commissioner's Court of Tallapoosa, supra: “It is true the language of the act is that it shall be lawful for the commissioner’s court to levy the tax, etc.; but it is well settled that the word ‘may,’ or the words, ‘it shall be lawful,’ are peremptory, when used in a statute, where the public or an individual has- a right de jure, that the powers conferred by the act should be exercised.” Citing Ex parte Simonton, 9 Port. 390, 33 Am. Dec. 320; 1 Ver. 152; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. (N. Y.) 113. The board of mayor and aldermen had the power to levy the tax under the act of February 16, 1872, within the limitation as to the amount of the levy provided in Constitution 1901, § 216, for the payment of a debt existing against the municipality on the 6th of December, 1875, and, refusing to do so, the petitioner was entitled to the peremptory writ of mandamus as prayed for in her petition. The rulings of the circuit court were oppsed to the foregoing views, and the judgment appealed from will be reversed, and the caused remanded. Reversed and remanded. Weakley, C. J., and Tyson and Siyipsox, JJ., concur.