UNITEI) STATES ,. CITY OF ELIZABETH.
(Circuit Court, D. New Jlffsey. March 25, 1890.)
An alternative writ of mandamus commanding a city, and certain of its officers, to perform certain acts necessary to the raising of a tax to satisfy relators' judgment against the city, and "such persons as may be elected to fill vacancies in the board of revision and assessment" to accept that office, qualify, and assess a tax, is bad on demurrer, it showing that SOUle against whom it is directed have had no notice, and are not ascertained.
Mandamus. Strong « Mathewson, for relators. Mr. Blffgen, City SoL, for defendants.
GREEN, J. This matter comes before the court upon a demurrer in..; terposed by certain of the defendants to an alternative writ of mandamus .directed to "the city of Elizabeth, the comptroller, the treasurer, the president and members of the city council, and the board of assessment ·and revision of taxes, of said nity, and to such persons as shall be elected, in pursuance hereof, to fill vacancies in said board of assessment ;and revision of taxes." The writ recites the recovery of the judgment against the city of Elizabeth; the issuing of the writ of execution there.()n; the return of that writ, wholly unsatisfied, by the marshal of the .district, there being no property belonging to the city whereon to make levy; the service of a copy of the writ by the marshal according to law, but upon whom such service was made not being stated; that the board ·of revision of taxes in said city consists of one person from each of the eight wards of the city, which board acts as the assessor of said city; that, ever since rendition of relators' judgment said board has not been inexistence, on account of the resignation of its members and the failure to qualify of the persons elected thereto; that the said board is re·quired by law, and itis its duty, to assess the taxes in and for said city, .and of such persons as are elected to fill such vacancies to accept said .office, and to qualify to fill the same, and of said board of assessment :and revision of taxes to meet and assess taxes, and do and pertormeach and every other act required by la wto Le performed by them in relation ;thereto; ihat it is the duty of the city of Elizabeth to levy, assess, and .collect a tax sufficient to discharge the relators' said judgment; that it the duty of the city council of said city to levy, raise, and collect said iax, and to fill any vacancies in said board of assessment and revisiQn. .()f taxes of said city; that it is the duty of the comptroller of said cit:-: upon the levying and the assessment of said tax, to collect, or Ca1..1W the same to be collected, as provided bylaw, and paid tolthetreasurer of the city; that it is the duty of the said treasurer, upon receiving said tax, to pay the same to the marshal of this district; that the said defenuantshave failed, neglected, and refused to perform the said severa. rrespective duties; that the persons elected to fillvacanoies in ihl!. boare:
assessment and revision of taxes have not accepted said office, 0' qualified to fill and have not forthwith met and, tax. The mandate of the writ is that the said city of Elizabeth, as a municipal corporation, and the said, other defendants,do perform the various acts recited in said writ as duties owing by them, respectively, and ,that "such. persons as may be' elected to fill vacancies in the board of revision and assessment of taies do accept such office, and forthwith qualify to the same, and forthwith do meet and assess said tax levi,ed by the city council, or show cause why they have not so done." To this writ the defendants have demurred. An alternative writ of mandamus, being regarded as the foundation of all the subsequent proceedings in the cause, is in its nature analogous to a declaration in an ordinary s\1it at law; and is subject to the same rules of pleading. Rader v. Union, 43'N. J. Law,518. It must show upon its tace a clear right to the relief demanded, and the material facts on wbichthe relator relies: must be distinctly set forth. People v. West15 Barb. 607. Especially must the matter of inducement stated in. the ,alternative writ, include everytbiilg necessary to show jurisdiction over the subject of the writ, and to warrant its mandate. High, Extr.Rem. §537. Applying theseprinciple'J to the writ in question, it becomes apparent that it cannot . beisustained. A court, before it grants a,mandamus, must be convinced.that there has been a demand, made by. a party having a right to make it, for the performance of the duty sought to be' enforced, and a, refusal to ,perform it by the party against whom the application is made. If a writ fails to show clearly and convincingly such a state of affairs, it is bad. Now, upon examination of this writ, it is found, that' it commands certain persons, not named, who may hereafter, perchance, be elected by the common cC!unci! of the city of to membership in the board of assessment and revision of taxes in. that city,' to take the steps necessary, after &Uchelection, to qualify themselves to. become members of. that board, and to perform the. duties, suoh membership casts upon them. Just how th,e relators, became, vested with a right, to demand the enforcement ofs,uch a duty, aUeged .to-. be owing by persons unknown and uni'dentified, and who certainly 'have never had cast upon them,.' to the knowledge of the court, the burden of the performance, is very difficult to,Qonceive,,; How call. there be existenta right to :the performance of the duty itself be non-existent? It is true that. oircumstances may (;lanse'such duty to ,arise in the future, but we are dealing with the preseriti, and, ,up to this time, it willi not be contended t4at i the ,duty. whose performance is sought to be enforced by this writ become, due frC!m any person. There are, admittedly, certain preCftdent formalities ,which must be complied with. The common council of :the city.o£ Elizabeth: must exercise its prerogative of choosing mem_ bers: of the board of assessment and revision of taxes before the duty of qualifying for such office can be owing by anyone. Until such choice is made,: the duty lies dormant.....,.is in abeyanoe..-as, to every personellgible for tnemberfihipJn that: board. ,Where one is chosen by the
council, for the first time does this duty arise. Then, for the first . time, is he who has been chosen placed under an obligation of performance; and then would the failure to perform, authorize and empower the court to compel performance by its mandamus j for nat until then could a demand for performance be made, nor could a refusal of such demand be interposed. This writ, therefore, plainly demands more than the relators are entitled to have awarded to them. In such case it is held, without exception, that the writ is bad upon demurrer, and that judgment must be given for the defendants; for the court cannot be called upon to distinguish and separate the good pleadfrom the bad, and treat the latter as mere surplusage, and of no weight 01' effect. On the contrary, the fault taints the whole writ, lind it must be set aside in its entirety. This conclusion makes it unnecessary to consider other objections to the wr.it which were urged upon the argument. But I think it proper to ·say that the effect of Judge NIXON'S opinion in Moran v. Oity of .Elizabeth, 9 'Fed. Rep. 72, was to adopt as the practice of this court in ·causes, similar to this, involving the collection ofjudgment debts frommti.nicipllicorporations, the practice which obtains in the of New JeIL sey, as prescribed by the act entitled 'f A supplement to an act entitled "An aetrespecting executions,'" approved March 27, 1878, (IJaws N.' J. ·1878; p. 182.) And, therefore, to entitle judgment creditors to' a:preemptory'writ of manda:nius to enforce thepaynHmt of their judgment, .the requirements of that act must be strictly complied with. Thede-fenda,nts.areentitled to judgment upon demurrer. .
In' re CORTis.
(C(reuitOourt, S. D. New York. April 17, 1890.)
Ex;'1'RADJlrION-EMBEZZLEMENT OF PUBLIO FUNDS.
Under the Penal Code of Cuba, art. 401, which makes it a crime for a public to take public furlds'of which he has charge by virtue of his offtce, a publlo Who,byfalsely invoices in which certain coupons are inclosa-d, obtains possession of moneyv.aid out by1;he Spanish bank, whicll couidnf,l.t pass .' tbebank's· to his own except 8S a consequence of h,is offtcia,l act, 1s gUllty of .. .
Application for Extradition. Olcott, Mestre &: Gonzales, for the Spanish Government. S. Mallet-Provost, for relator.
LACOMBE, J. If, when abstracted by the prisoner, the coupons were not perforated, but were in such condition that bonafide holtlers for value could recover on them, they were, undoubtedly, public funds. If they were canceled or imperfect when he took them, his subsequent action in preparing and certifying the invoices in which they were inclosed, and