Board of Sup'rs v. Thompson

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. So far as the assignments of error seek to raise questions which were adjudicated in the former judgment of this court, they will not be here considered. It is contended that the state board of supervisors had no power to make the levy which was prayed for. The statute of 1897 (page 267, c. 189, § 39) reads as follows: “The hoard of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds, and in any year in which any bonds fall due must increase said assessment to an amount sufficient to raise a sum sufficient to pay the principal of the outstanding bonds as they mature. The secretary of the hoard must compute and enter in a separate column of the assessment hook the respective sums, in dollars and cents, to be paid as an assessment on the property therein enumerated. When collected, the assessment shall he paid into the district treasury and he apportioned to the several proper funds. In case of the neglect or refusal of the hoard of directors to cause such assessment and levies to he made as in this act provided, then the assessment of property made hy the county assessor and the State Board of Equalization shall be adopted, and shall he the basis of the assessment for the district, and the hoard of supervisors of the county in which the office of the hoard of directors is situated shall cause an assessment roll for said district to he prepared, and shall make the levy required by this act, in the same manner and with like effect as if the same had been made hy said hoard of directors, and all expenses incident thereto shall be borne hy said district.” [862] By this statute it is made the plain duty of the board of supervisors to make the levy required by the act in case of the neglect or refusal of the board of directors to cause such assessment and levy to be made. But it is objected that the board of supervisors and the interveners were not parties to the former action, and were, therefore, not precluded by the judgment, and that they now have the right to make herein all the defenses which could have been made to the original action. We cannot assent to this contention. The judgment in the former action established the right of the defendant in error against the irrigation district. All the necessary parties to that action were before the court, and there was no defect of parties defendant. The present proceeding is not a new action to establish the rights of the defendant in error as against other parties. It is a proceeding in the nature of an execution to enforce the judgment already rendered. The right of the defendant in error to call upon the board of directors to enforce the judgment was established in that judgment, as well as his right to have recourse to the board of supervisors in case of the refusal or neglect of the board of directors to make the levy and assessment. Neither the board of directors nor the board of supervisors nor the taxpayers of the Perris Irrigation District can be heard to defend the present proceeding on any of the grounds litigated, or which might have been litigated, in the former action. The point is made that no notice or demand was given the board of supervisors before filing the petition for the writ of mandamus. The statute does not require such notice. The petition was notice. It is contended that the petition for the writ was insufficient, for the reason that it called upon the board to make a levy required by the act of March 31, 1897, whereas the district was organized under the statute of 1887 (St. 1887, p. 29, c. 34) as amended in 1889 (St. 1889, p. 15, c. 19; Id. p. 18, c. 20; Id. p. 21, c. 21; Id. p. 212, c. 178), and was not subject to the provisions of the later act, and it is argued that no demand under the provisions of the act of 1897 is permissible against a district organized under the statute of 1887. The act of 1897 purports by its title to be an act to provide for the organization and government of irrigation districts. By its terms it applies to all existing irrigation districts, no matter when organized. Section 109 recognizes the existence and validity of districts theretofore organized under the prior laws, and declares, “But said districts are hereby made subject to the provisions of this act so far as applicable.” Section no repeals the provisions of the act approved March 7, 1887, as amended in 1889, “so far as they may be inconsistent • herewith.” St. 1897, p. 287, c. 189. It is apparent, therefore, that the statute of 1897 governs all irrigation districts which existed at the time when it went into effect. But if, indeed, the provisions of the act of 1887, as amended in 1889, still survived as the governing and controlling act of the corporations formed thereunder, there was no substantial error in referring in the petition to the act of 1897, and demanding compliance therewith, for the reason that the language of section 39 of the act of 1897, in pro [863] viding for the levy of an assessment to pay interest on outstanding bonds, is the same as that of the previous act. It is contended that the court erred in striking out certain matter which had been pleaded in the answers of the interveners. The portions so struck from the answers were those that attempted to bring in issue matters which had been adjudicated in the former action. That judgment, as has already been said, determined not only the questions that were actually litigated therein, but all questions which might have been litigated, and it determined those matters not only for the parties then before the court, but for all parties who might thereafter, under the law, be called upon in a proceeding in the nature of an execution to enforce the judgment therein rendered. Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1044. The point is made that the evidence was not sufficient to warrant the issuance of a writ of mandamus, in that there was no proof that the board of directors of the Perris Irrigation District had neglected or failed to levy the required assessment. But the interveners, in their answer, had expressly admitted that “no levy or assessment upon the property within said alleged district liable thereto had been made by any board of directors since the year 1895.” This was sufficient, so far as they were concerned; and, while the board of supervisors, in its answer, made no such direct and explicit admission, evidence was placed before it in the petition for the mandamus which was addressed to the board of supervisors, and which recited the facts on which the judgment had been rendered, and advised it that the irrigation district had, since the year 1895, neglected to cause any levy or assessment to be made on the property of said district, and that it had also neglected to cause such levy or assessment for the year 1901, and that there was no money in the treasury of said district wherewith to pay the judgment. The board accepted this petition as sufficient. It made no denial of any of the facts therein alleged. When the hearing was had on proceedings for the issuance of the writ of mandamus, the petition was offered as evidence of the facts which were recited in it. It was not then objected to as incompetent, and the board of supervisors cannot now be heard to say that it was incompetent evidence. The judgment of the Circuit Court is affirmed. Footnotes [¶] 3. Mandamus .to enforce payment of judgment against municipality, see note to Holt County v. National Life Ins. Co., 25 C. C. A. 475. See Mandamus, vol. 33, Cent. Dig. § 44.