DB PRESIDEN'r 11. M<\YOR,ETC., OF CITY OF ELIZABE'r1L
'199
THE PRESIDEN'r
ex rel.
MORAN et al. tI. MAYOR, ETC., OF CITY OF ELIZABETH.
(Circuit Oo'Uh't, D. New Jersey. December 17,1889.)
L
MUNIOIPAI. CORPORATIONS-JUDGMENT-lIUNDAlIIUS TO
LEVY TAX-CONTEMl"l'. Aot N. J. Maroh 27,1878, e,ntitled "Supplement to an act entitled ',An act respect"whioh provides that the assessors of taxes of a munioipal oorporation shall, upon service of a oopy of a writ Of execution, assess the moneys to meet it, does not disturb the oharter mode of levYing taxes by the common oounoil of the city of Elizabeth, as amended by Act N. J. April 2, 1869, and the negleot of the COmmon council to l,evy a tax to pay the interest on its bonds, in obedience to a writ of manda,mus from the circuit court of the United States, is a oontempt punishable by attaohment. '
9.
SAME-OFFIOERS LIABLE.
a.
Whllre a oity charteI' vests in the common council the power of levying taxes and filling vacancies, the mayor, comptroller, and tI'easurer cannot be attached for condisobedience of a writ of mam.damiuB to make suob levyand fill vacanoies in the board of assessors. Where there is a peremptory writ of mandamus to the common couucil of a city to levY a tax and fill vacanoies in the board of assessment, disobedience of the writ cannot be justified by 8howing that another oourse of prooedure preliminary to the granting 'of,the writ could have been selected to collect the tax to pay the indebted· ness for which the writ issued.
SAME.
Motion to Attach for Contempt. This is a, motion to attach the mayor, comptroller, treasurer, and coni.. mon council ,of the city of for_contempt for failure to obey a peremptory writ of mandamus. Strrmgr« for relators. Mr. BergC(i,dor respondents. GREEN, J. From the recital in the peremptory writ of mandamus sued out in this cause"it appears that the relators, Charles Moran, D. Comyn Moran, and Amandee D. Moran, on the 9th of June, 1888, in the circuit court of the United States for the district of New Jersey, recovered for the sum of $9,802.12 debt, a judgment against the city of and $57.98 costs of suit; that said judgment was rendered against the city of Elizabeth for interest due by it to said relators upon bonda of the said city, held and owned by them; that a writ of execution was duly issued out of said circuit court upon said judgment against the said city of Elizabeth, directed to the marshal for said district of New Jersey; that said mit was returned unsatisfied, there being no property belonging to the said city sufficient to satisfy said writ; that a copy of said writ of execution was duly served by the marshal of the district upon the defendant; that there were at that time eight vacancies existing in the board of assessment and revision of taxes for said city of Elizabeth, on account oUhe resignation or failure to qualify of the persons theretofore elected 8smembers of said board; that the said board constitute the who are, by law, required to aBonly assessors of the city of sess the taxes in and for said city; that it was the duty of the city of Elizabeth and the board of assessment and revision of taxes to assess
800
I'EDERAL REPORTER,
vol. 40.
and levy, in addition to the regular taxes, the amount due to the said relators on their said judgment, and to collect and pay the same to Said relators; that it was the duty of the common council of said city of Elizabeth to fill any vacancies which might exist in the board of assessment and revision of taxes of said city; that the city of Elizabeth and the said board of assessment and revision of taxes have neglected and refused to perform their said duties, and have neither assessed nor collected nor paid to the relators any part of their said judgment; and that the common council has not filled, or attempted to fill, the vacancies in said board. The mandate of the writ was that each of the defendants do assess and levy, in addition to the regular taxes, the amount due upon the said relators' judgment, with interest and costs, to b.e assessed and collected according to the form of the statute in such case made and provided; and that the president and members of the common council of said city of Elizabeth forthwith should fill any vacancies existing, or which may exist, in said board of assessment and revision of taxes for said city of Elizabeth. This writ was duly served upon the mayor, the comptroller, the treasuter, and the COlllmon council of the city of Elizabeth on May 10, 1889. No service was made upon the board of assessment and revision of taxes. The only return made to the writ is by the common council, and it is to the effect that the common council have elected certain persons, naming them, to fill vacancies in the board of assessment and revision of taxes. There is no pretense that the amount due the relators upon their judg':' ment, or any part thereof, has been, by either of the defendants, assessed or levied, collected or paid over to them. It further appears, in the testimony taken on this rule to show cause why the defendants should not be attached for non-obedience, that although the writ of peremptory mandamua was served upon the common council on May 10,1889, no steps were taken to obey its mandate "to fill for.thwith any vacancy in the board of assessment and revision of taxes" until September following, at which time the persons named in the return were elected; that not one of the persons so elected has taken the required oath of office, or in any wise legally qualified himself to perform the duties so cast upon him, but, on the contrary, each has neglected or refused so to do. It is alleged that this neglect or refuEial was the result of a combination or conspiracy to avoid the performance of the act commanded by the writ of manda·mUll.
A motion is now made on behalf of the relators to attach the defendants as .for a contempt, because of their failure to obey this writ, and it is claimed that their disobedience arises in two respects: First, in not "assessinp; and levying, in addition to the regular taxes, the amount due upon said relators' judgment and execution, with interest to the time when the same shall be paid to the United States marshal for said district of New Jersey I with costs of these proceedings, to be assessed and levied according to the form of the statute in such case made and provided;ll and, second, by failing "to fill forthwith any vacancies existing in said board of assessment and revision of taxes for said city of Eliza.
THE PRESIDENT
.tl. MAYOR, ETC.,QFCITY
OF ELIZABETH.
8pt
beth." Are the defendants, or either of them, guilty of this alleged disobedience? . It will be noticed that this writ is directed to the mayor, the comptroller, and the treasurer of the city of Elizabeth, as well as to the common council and the board of assessment and revision of taxes. The duties commanded to be perfoq:ned are the "assessment and levying of a tax," and the "filling of vacancies" in one of the municipal boards. The "mayor," the "comptroller," and the. "treasurer" of the city of Elizabeth, are statutory officers, exercising powers, and performing duties, clearly defined and limited by the charter ofthe city, or by acts supplementary thereto. Unless within them can be found, clearly and undisputably expressed, the power necessary to an obedience of this writ, it must be held that such power has. not been granted. It will hardly be contended that the broadest construction possible of these statutes will result in the finding of any authority vested in the officers named to "levy taxes" or "fill vacancies." On the contrary, the power to perform these munici. pal actsis, by the charter of the city of Elizabeth, expressly vested elsewhere; and, had these officers attempted to obey this writ in these respects, they would undoubtedly have been guilty of an assumption of power not granted tathem, expressly or by implication, and by such usurpation would have themselves liable to impeachment, and' to criminal indictment. As to these officers, therefore, this writ must be held to be nugatory. The law never seeks to command ble, and it has always been held by the courts of this country, lis well as by these of England, that "impossibility of obedience" is agood and Bufficientreturn to a writ of mandamus. Shortt, Mand. 390; Rex v. Round, 4 AdoI. & E. 139; Rex v. Railway Co., 1 Ell. & BI. 372,381; State v. Perrine, 34 N. J. Law, 254; High, Extr. Rem. c. 1, § 14. . So far, then, as this motion to attach as for contempt affect,S the "mayor, the comptroller, and the treasurer" it is denied, but without costs. And I think it proper to say that c<;>sts are refused to these defendants, because they are, perhaps, guilty of a technical disobedience of the writ in failing to make any return ,to it. As their intention was to justify their,failure to obey its mandate by showing an absolute and inherent wllnt of power, the better practice requires that such justification should be made to appear, not orally, but in ,a formal return to the writ itself. However, as no harm has come to the relators from the laches of the defendants in this respect, I will permit such return to be made, in this case, nunc pro tunc. The charge of disobedience made against the common council of the city of Elizabeth rests upon a very basis. The allegation is that the common council is possessed of ample power to "levy taxes," and to fill vacancies in the" board of assessment," yet absolutely refused or neglected to obey the mandate of the writ in these respects. If the allegatioJ;l be well founded, the defendants, who are members of the common council, are guilty of disobedience as charged. The common council is the legislative body of 'municipality. It derives its existence from the city,and.by that charter it is endowed withgrell-t and v.40F.no.14-51 .' -
sui' ,j,r.
lfl:-'
FED1mAL' REPORtER,
vatied'power, covering apptlrently 6veryconceivable neci:l811ity for legis. lative . action that could· arise in the ministration of the internal afil1irs Especi&r11Y,has'been granted to it ample power for the levy,ing'onaxes. Thus 'in ,the thirty.fil'8t'section of the charter of this city' iUs enacted "that the common council shall have' power within the said city-to make, establish, publish, andtnodify, amend or repeal, ordinan'OO$, rules, regulatfdils; and by.laws for the following purposes: * * *" (33) To adopt aUJegal and requisite measures for levying and collecting'the taxes." Charter City of Elizabeth, §31. And again, in'the sixty-fourth section of the same charter, it is enacted "that the city councll shall have power to raise by tax, ill each year, such 8um 01' srihlsof money as they shall deem expedient for the following purposes: "'. * * (11) For the payment of the interest upon the city debt; and upon temporary loans; and such part of the principal thereofas maybe due and payable." 'Vide Charter Gity'OfElizabeth. And that there should mistake as·to the comprehensiveness of this power, by an act supplementary to the act of incorptltation" and approved March 31, 1864, a legislative definition of the term "debt" was obtained', andpit.was declared that the indebtedness of the city of beth s40uldbe divided into the "general debt," in which should be in-. the present bodded' and fioating debt of said city, the amount due'or to become due for the purchase of real estate, the building, com·: 'and furnishingClf .school-houses, engine-houses, almshouses, '.and other public buildings, and loans for the payment of bounties'; 'and the "improvement deht," in which shall be included al,l,liabilities incurred bY the city for improvements authorized by the charter; the expenses and costs of which are payable by assessments. It 'ras for a debt of the city of the second class or division-that is, "improvement debt"-that tbe'judgment of the relators was obtained. It seems to me; ,therefore, the contention of the relatorstbat the common councilhlid am:plll power to levy at;a;x to pay their judgment is correct. The insist that, granting that such power was originally vested in the common council', it has been taken away from it by "A supplement to the charterofthe city of Elizabeth," approved April 2, 1869. This supplementary act provides "that, for the purpose of astaxes required bylaw to be levied in the city of 'Elizabeth, and rerisingtbe sa:trie, a board .of commissioners is berebycotistituted, to be known and' designated as' the' 'Board of Assessment and Revision of Taxes in the City of Elizlltbeth;'" and the insistment'is that this board, 861ely, has thep6wer to l¢{ry and aSl;lessrby way of fax,rnoneys to meet the. indebtedness of the city; and hence the failure of the common coun· thi£!"respect is excusable from want of,power.! 'dotlot the act. This supplementary act c!1aI1gesthecharterofthe"city'in :one 'i,trlpbrtant respect only: whereas, theretofore, assessors of:taxea were simplY#,ard officers, and acted, in assessing city property, independently ofeach other, thereafter they were ",'fficers of the city at large, and, acted .in'all things join'tly, as a board. No part oitha chatter of the city was repeaJ:edby.,thissupplement,save 1
THE PRESIDENT'; ,. ){A:YOR, ETC., P:f.
ELIZABETH.
certain sectiouawhiOh referred solely to the duties and powl!rs 9f :Wl;\rg.,; assessors, and the power of the council to levy taxes was left wholly impaired. In fact, the whole Elffectof this supplement was simply to change a part oCthe ·Jllachinery by which the taxes levied by the COmmon council were thereafter to be assessed upon individual property. It will be noticed that the very first clause of the supplementary act states concisely.its object, namely, "for the of assessing taxes, required by law to be levied, in the city of Elizabeth." The levying of the tate,. the detElrmination of its amount annually, its imposition upon the in-. habitants ·of the city as a corporation, generally,-all this was prelimto any action of the board of assessment, and this preliminary action was to be taken by the common council, who, by were required and empowered to perform it. That this is the true construction of the act I think clearly appears from the fact that legislative authority was repeatedly given to the city of Elizabeth to borrow monElY, after the passage of the act calling into existence the hoard of assessment and revision of taxes, yet in every instance such authority was coupled with a duty imposed upon the Gommon council. to provide for the payment of placed upon the the loan by levying a tax. . Evidently the charter and supplements thereto, by the legislature, was that full and ample. power to levy taxes for the payment of debt was· vested, beyond· question, in the common council; otherwise both the legislature and the city would have been parties to the great fraud of borrowing money from innocentlenders, whose. only chance of repayment lay in a levying Of a: tax by a body which was utterly destitute of power to make such levy. I am compelled, therefore, to hold that, in failing .to .levy a,tax to meet, the demands of the relators, the COn\IIion council have disobeyed so much of the writ of mandamus as commands them "to levy, in addition to the regular taxes, the amount due upon said relators' judgment." The 0ther alleged disobedience of this wlit consists in the failure of the common council" forthwith to fill any vacancy" existing, or which may exist in the board of assessment and revision of taxes. The return to the writ made by the common council sets forth, inhax verba, "that they have elected the following persons to fill the vacancies in the board of assessmentiand revision of taxes," naming them. The testimony taken on this motion shows that the wlit was served on May 10, 1889, upon the common council, and it was not until the 2d day of September following that any positive action was taken looking towards the filling of the in the board of revision. It is true that the writ of mandamus was, at the meeting of council held on May 10th, referred to the "law committee and city attorney." But for what purpose such reference was made does not appear anywhere in the case. It.is to be presumed that the coueeil desiredsQme information, or, perhaps, legal opinion, as to their duty and their course of action. I see nothing specially improperin making sllch reference, if that was its object. The writ commauds action "forthwith," but "forthwith" does not, in this connection, mean that the act commanded must be performed "instantly," but that the defendants must the performance of the matter COm-
J'E])JmAL DPORTElt,
manded directly, and do whatever can be done. Re:ev. GommiBsionm, 3 Adol. & E. 550. If, therefore, this reference of the writ, upon its service, was made in good faith, and the law committee and city attornAy had'promptly made their report, and the common council had, upon that report coming in, acted as it was commanded to act, although some delay might have thereby been occasioned, I sQ,ould have held it not and the action of the common council would be accepted asa fair compliance with the mandate of the court. But the testimony in this case shows a very different state of' facts. The writ· of mandamu8 was' granted after argunient before the court, in which the city attorney took part. All the facts, and the principles of law involved, were well known to him, at least, ifoot to the law committee. !tcould not require much time to advise council upon their rights and their duties.' The writ is precise and explicit in its terms. The simple reading of it would have made its mandate clear to every member of the council. And yet no action whatever looking to obedience was taken at the regular or special meetings of the common council held on June lst, June 15th, June 27th, July 1st, July 24th, August lst, and August 15th. At none of these meet-, ings watfany request made that the law committee should report on this subject, so that proper action could be taken. No call for advice and counsel, as to the duty enjoined, from the city attorney; in fact, as the clerk of the common council testifies: "No action whatever was taken by the common council between May 10,1889, and September 2, 1889, to fill the vacancies in the board of assessment." I cannot regard this conduct i.n ;any wise excusable. Nor, indeed, is any attempt made to justify it, and, unexplained as it is, it caUs for the censure of the court. On the argument of this motion, counsel for the defendants drew the attentiOh of the court to an 'act of the state of New Jersey approved March 2'7 ,1878,entitled"Supplement to an act entitled' An act respecting executions,'''aiid the contention was that by this act the power to assess and levy moneys in municipal corporationsto satisfy an execution against such corporation was exclusively vested in the assessors for taxes in and for sucbcorpbration. The act, certainly, is very broad. I do not doubt that it applies to judgments recovered in the courts' of the United States for the district Of New Jersey, by virtue of sections 914,916, Rev. St., and had the attention of the learned jUdge, who, sitting in this court, allowed this peremptory writ, been called to it, it is doubtful if the writ would have been granted, without evidence that the provisions of this statute had been followed with strictness. It presents a simple and efficacious remedy for the collection of claims by the judgment creditors of a inunicipalco'l'{>oration, and as such it demands and is entitled to strict enforcernentbythe courts., But I cannot agree with counsel that: this remedy is exclusive, as to the levying of the amotlnt necessary to be raised by a municipality to satisfy a writ of execution sued out against it. It does not, eitherib.'!terms 0r by implication,debarmunicipalities ftom levying DlOtleys for such purpose in the same manner and through the same' agencies asheretbfure. It &imply put&upoh·the assessors of
KITCHELL
&;
RAMMELSBURG FURNl'1'URE CO. ,. SAMPSON.
805
taxes of municipal corporations a new duty, arising, however, only when certain preliminary action has been taken by the judgment creditor, towit, the service upon him of a copy of the writ of execution. If a copy of such writ be not served as directed by this statute, then the duty to assess the moneys to meet it does not attach to the assessor. If it be served, then. without any action of the legislative body of such corporation, the assessor is bound of his own motion to assess, in addition to regular taxes, a sum sufficient to satisfy the execution. In other words, the act simply provided a new statutory remedy I without disturbing the existing procedure. If this construction of the act be sound, it affords no excuse for the failure of the defendants, the common council of beth, to obey this writ. Besides this, objection is taken too late to be efficacious. Such objection might well be against the granting of a peremptory writ of mandamus, which always depends upon the sound discretion of the court, guided and limited by fixed principles. But a peremptory writ having been granted, disobedience thereof cannot be justified by showing that another course of procedure, preliminary to, the granting of the writ, could have been selected by the relators. In my opinion, the common council has been guilty of disobey!ng this writ, and the motion for attachment as for contempt is granted.
!tfITCHELL
&
RAMMELSBURG FURNITURE
Co.
tl. SAMPSON.
(O£rcuit Oourt, N. D. Florida. December 80, 1889.)
PARTIIl!!lRSHIP-'-AcTIONS AGAlNST-LIABILITY,'m SOLIDO.
I;
In Louisiana, in a suit against a commercial partnership, where citation Is Issued, directed and served Oil ,the firm, and aU,order is afterwal'ds made for citation to il\sue to the individual partners, and an answer is :ijled by the defendants, a judgment may ,be rendered in soliqo against the individual partners.
SAME""':SERVICE OF CITATION ON AGENT.
Under Code Prac. La. art. 198, which requires citation in suits against a partnership,to be served on one of the firm in person, or at theirnlace of business, by delivery to their clerk or agent, service cannot be made upon an agent elsewhere than at the firm's place of bUl$iness. '
8.
'"
Under Const. La. 1879, which abolished the several district courts In the parish of Otleans, created one civil district court for said parish, and prOVided: (article 261) that all causes pending in such district courts should ,be transferred to said civil district court, the latter co)lrt has jurisdiction to revive unsatisfied judgments ,rendered in said district courts, since a suit is" pending" until the judgment rendered therein haS been satisfied. ' SA.ME-CI'l'ATION-CURATORAD Hoo, Under, Rev. Civil Code La" art. 8547, which authorizes the revival of judlPIlents upon is,y.ance of citation... and providestha.t if the defendant be absent the, court ma.yappoint a curator aa hoc, upon whom' the citation shall be served, a curator ad hoc may, by answer, acknowledge the service of citation for the revival of a judgment. BAME. M
JUDGMENT-REVIVAL-COURTS-JURISDICTION.
rI.
Under l!aid statute,' the revival of a judgment without.the issuance of a oitatton. the acknowledgment of service by the curator ad hoc, is a nullity. ,
At Law.
On demurrer.