Town of Jonestown v. Ganong

52 So. 579, 97 Miss. 67

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Mayes, C. J.,

delivered the opinion of the court.

On the 18th day of February, 1907, W. L. Ganong filed a petition in the circuit court of Ooahoma county, praying for a mandamus against the proper officers of the town of Jones-town. The object sought to be accomplished by the proceeding was to compel the payment of a certain judgment which Ganonghad obtained against the town, and which it refused and failed to pay. The substance of the petition is that the town of Jones-town is a municipal-corporation, created under the laws of the state of Mississippi, and deriving its corporate powers by virtue of the general Code chapter on the subject of municipalities, being chapter 93 of the Code of 1892. The petition further alleges that at the April term, 1905, of the circuit court of the county in which the petition is filed, petitioner recovered a judgment against the town for the sum of $1,346.45. This judgment was subsequently appealed to- the supreme court by the town, and the judgment was affirmed. On affirming the judgment the supreme court awarded damage on the judgment of five per cent, on the principal and interest then due, together with all costs. The petition then alleges that no part of the judgment has been paid, and that the town steadily refuses payment, and all executions issued on the judgment have been returned "nulla bona" by the sheriff. The petition further alleges that petitioner has frequently and repeatedly requested the mayor and board of aldermen to- levy a tax upon the real and personal property within the corporate limits of the town for the purpose of raising an amount sufficient to pay the judgment, but the mayor and board of aldermen fail and refuse to do this. The petition concludes with a prayer for a mandamus, commanding the town, through its proper officers, to pay petitioner, out of any money in their hands, the full amount due on the judgment, together with interest, damage, and costs. It further prays that, if there are not sufficient funds in possession of the town for this purpose, it be required through its legally constituted officers to levy a tax sufficient for the purpose, and that the judgment be paid as soon as this tax shall be collected. The petition further prays for such other or additional relief as the circumstances of the case may justify, and which may seem proper when the court shall have heard the cause.

On filing this petition a summons issued, directed to the sheriff of the county, commanding him to summon the town of Jonestown to answer this petition. This summons was executed on O. W. Butler, the mayor of Jonestown, on the 22d day of February, 1907. At the succeeding April term of court, the town not having answered, a judgment by default was taken, which recited as follows: “That said petitioner, W. L. Ganong, have judgment against the town of Jonestown, and that the writ of mandamus issue, directed to the mayor and board of aldermen, requiring them to pay over to Ganong the sum of $1,568.56, being the sum adjudged to be due and payable to Ganong in the case of W. L. Ganong v. Village of Jonestown, together with interest, damage, and costs. In default of payment in accordance with the judgment of the court, or if it should appear that the town of Jonestown has not in its hands, possession, or control a sufficient amount to pay the judgment, then the mayor and board of aldermen of the town are required to levy a tax upon all the property situated in the corporate limits and subject to taxation for a sum sufficient to discharge the judgment, with interest and costs already accrued, and the cost to accrue in this suit.” And it is then directed in the judgment that the sums collected as provided in the judgment shall be applied to the discharge of the debt due petitioner. The judgment further requires that the mayor and board of aider-men pay this judgment on or before the 20th day of December, 1907. The judgment bears the date of the 21th day of April, 1907. On the 3rd day of Hay the town, through its attorney, filed a motion to vacate the judgment, assigning therefor seven causes. The first is that the defendant has a meritorious defense; the second, that the declaration did not make the judgment an exhibit to the petition, and therefore the court was without authority to enter any judgment; the third, because there was no writ of inquiry; the fifth, because the judgment required the defendant to do things beyond its legal power; the sixth, because the judgment is rendered against the board of mayor and aldermen, and there was no suit against tire board of mayor and aldermen, but against the town of Jonestown. We need take no note of the other causes assigned. In support of the motion, the mayor filed an affidavit in which he states that tire mayor and board of aldermen of the town of Jonestown were not advised of the nature of the proceedings, and believed that this last proceeding only related to the making final of the judgment before that time affirmed by the supreme court, and because of this and acting on this assumption they did not pay any attention to the suit of petitioner; that the town has a meritorious defense to the action, which consists in this: That the assessed valuation of all the real and personal property in the corporate limits liable to taxation is not ,more than sufficient, when taxed to the utmost allowed by law, to meet the current expenses of the municipality; that the judgment of the court requires the mayor and board of aldermen to levy taxes for the purpose of paying this judgment greatly in excess of all-possible revenues of the town at the highest rate of taxation allowable bylaw ; that the ends of justice required that they be permitted to make proof of that fact; that when the writ was served on the affiant the city had no legal representative or adviser, nor means* to secure one, and has but lately been able to secure the services of the attorney to represent it.

Some testimony is taken in the case, but we do not deem it necessary to enter into any discussion of that, since, in our judgment, the case turns upon other questions which are raised in the proceedings we have set out. We may say in the outset that, so far as the application to set aside this judgment rests in any excuse offered by the mayor as a reason for permitting the judgment by default to be taken, there is no sort of merit in it. When suits are brought against municipal corporations, they are to be treated as any other litigants, and any fact which warrants the taking of a judgment by default against a private individual is warrant for the same thing when the defendant is a municipal corporation. The municipality is given authority under the law to select the officers that shall represent it. The inhabitants of a municipality are -given the ballot for the purpose of allowing them to select suitable and faithful representatives, and if such representatives are not selected the fault lies with the improper use of the ballot, and the remedy must come by its rightful use. This record shows that the mayor was duly summoned, and it then became his duty to find out for what purpose he had been summoned into court; but as the city’s representative he paid no attention to it, but allowed judgment to go by default. His excuse is that he thought the suit was only for the purpose of making final the judgment previously recovered by Ganong against the town, ánd on this account he asks that it be set aside. It was gross neglect on the part of the mayor not to have informed himself on this subject, and his failure can never furnish any legal reason why this judgment should be vacated. However meritorious may be the defense of the town, it has lost -its right to- make any defense by the neglect of its mayor, if there are no reasons for vacating this judgment outside of the excuse offered, and this disposes of the first error assigned.

It is next insisted that, because the petition did not make the judgment an exhibit to the petition, the court was without authority to enter any judgment. Counsel for appellant cites Code 1906, § 811, as authority for this proposition. It is our view that this section has no application to this case. The above section has application only in a case where it is sought to recover a money judgment. Where the sum does not appear in the pleadings, then a writ of inquiry is made necessary after judgment by default. But in this case the judgment sought is not a money judgment, but the enforcement of one already recovered. The-petition shows what judgment it is that petitioner is seeking to compel the municipality to pay. A reference to the record of that judgment specifically fixes the amount, and if the mayor and board of aldennen answer _ the mandate of the court with a certificate showing that they have paid the judgment, interest, and costs, to enforce which this suit is brought, they will show compliance with the court’s order. It is true that the judgment of the court in the mandamus proceeds to specify the amount to be paid; but this is mere useless verbiage placed in the judgment, and may be so treated. The thing sought to be done by the petition, and the duty directed by the court to be performed by the mayor and board of aldermen, is the payment of the judgment recovered by Ganong against the town of Jonestown. This disposes of the second and third contention of counsel for appellant.

It is next contended that the judgment is void because it is rendered against the mayor and board of aldermen, when in truth the suit was against the town of Jonestown. It is quite true that this suit is styled "W. L. Ganong v. Town of Jonesioiunbut the prayer of the petition is that the town of Jones-town, through its proper officers, be required to do the things sought to be accomplished by the mandamus proceeding. The town of Jonestown cannot act, except through its municipal authorities, and any command addressed to it in any other manner than- through its officers could have no compulsory force. It may be sued by its corporate name. Section 3931 provides that in suits against municipalities summons shall be executed on the mayor or municipal clerk, and the same section makes it the duty of such officer to give notice of the suit to the board, and 'on failure to do so he is liable on his bond for all damage caused by any such failure. These sections apply to every kind of suit which may be instituted against a municipality, whether in tort, on contract, or in mandamus proceedings, and all are just as much parties, in their official capacity, as if each had been named in the proceeding. These statutes expressly make them parties when the requirements of the statute have been complied with. It was the town of Jonestown that Ganong was seeking to make pay this debt, not the individual members of the board. The members of the board unofficially had no concern about this claim. Being the town of Jonestown that Ganong sought to compel to pay the judgment, he instituted proceedings against the town as the statute required, and after service of summons on the mayor all proper authorities of the town became parties thereto and subject to any order or judgment made by the court. See, Mayor v. Lord, 9 Wall. 409, 19 L. Ed. 704.

We now come to the most serious contention in the case. The judgment rendered by the trial court commanded the mayor and board of aldermen to pay the judgment; but it further directed that, if there was not a sufficient amount on hand to pay the judgment, then the mayor and board of aldermen are directed to levy a tax on all the property in the municipality in an amount sufficient to pay off the judgment. There is an affidavit in the record to the effect that the taxable value of all the property in the town is not more than sufficient to pay the current expenses, and that to obey the judgment of the court would compel the levying of a tax forbidden by law. It appears that our statute (Code 1906, § 3317) fixes the limit of taxation for municipalities, and it seems well settled that a mandamus cannot be issued to compel the levy of a tax beyond the statutory limit. This proceeds upon the idea that the courts cannot create, but they can only enforce, a legal duty. All contracts with municipalities must be made with reference to their legal power to raise revenue wherewith to pay their obligations, and all judgments recovered against a municipality have written into them the law subservient to which the municipality owes its legal existence. Beard v. Board of Supervisors, 51 Miss. 542. And see note on page 706 of 19 1. Ed., in case of Mayor v. Lord. It will be borne in mind that there is no allegation in the petition that the mayor and board of aldermen are guilty of fraud in refusing to have the property of the town assessed, or that they have fraudulently assessed the property at a valuation so low as to defeat, and for the purpose of defeating, the collection of petitioner’s claim; and, this being the case, we do not think that the court had any power to inquire into the valuation of property listed and approved for assessment by the municipal authorities, or to order the levying of any tax solely for the purpose of paying this debt. If the authorities refused to assess at all, or fraudulently assess, and it is so alleged, a different question would arise. We speak in reference to this claim which is payable out of the general revenues of the town.

We cannot accede to the contention that a municipality may defeat a judgment by consuming all its revenues for general municipal purposes for current expenses. Like individuals, the municipalities must meet their just debts. When the state incorporates municipalities, and gives them the extensive and important powers which are found in their charters, giving to them the right to make contracts and vesting in them important powers of government, the faith of the state is pledged to individuals dealing with them that the state will afford a remedy to compel payment ©f their just debts. In this case there is the judgment of a court, which is the highest evidence of the justice of the claim, and the courts will not permit municipalities to set at defiance their decrees. In the case of Evans v. Pittsburg, Fed. Gas. No. 4,567, it is said: “The great multiplication of corporations of modem times, the readiness of legislatures in conferring on them most extensive and dangerous powers, demand of the courts the most liberal application of the remedy by mandamus to prevent a failure of justice.” Again in the same ease it is said: “Cities are often possessed of stock and other property, not devoted to special public use, which might well be levied on to satisfy a judgment against it But where a city has no such property (as in this case), and its officers obstinately refuse to satisfy a claim which courts of justice have pronounced to be legal and just, there will be an entire failure of justice unless this remedial writ of mandamus be issued and enforced by the court whose judgment is publicly set at defiance. States claiming sovereign or equal sovereign powers may repudiate their contracts if they are content to abide the scorn of the civilized world, because there is no superior with power to compel obedience. But this sovereign right to defraud makes no ' part of the privileges or immunities granted by the charters of city corporations. They are subject to the laws as much as private corporations or individuals, and where the court has adjudged that they shall pay a sum of money due on their contracts, it is bound to find a remedy for the party aggrieved by their refusal.” The judgment of the court in favor of Ganong is itself an appropriation of enough of the general revenues of the town to pay the judgment. On the hearing the trial court should have required the municipal authorities to issue a warrant in payment of the judgment, as required by Code 1906, § 3379, and should then have directed that this warrant be filed with the treasurer, and have priority from the date of filing over all other debts payable out of the general revenue of the town. No express provision is to be found in the statute as to the manner in which municipaities shall pay their obligations when warrants are issued, where there is not a sufficient fund to pay all warrants; but Code 1906, § 338, applying to boards of supervisors, makes it the duty of the clerk to- register all warrants issued by the board, and they are to be paid- in the order of registration, unless there is sufficient money to pay all warrants. Thus we see that the law contemplates priority, and it is to be applied by the remedial writ of .mandamus to municipalities as well as to counties, when without it the writ would prove futile.

We may say that it appears from this record that the town of Jonestown has owed this- debt for more than fifteen years, that it has recognized the validity of the claim under the sanction of its official action more than once, and surely justice demands that this long delayed creditor find some remedy in the law to compel the liquidation of this claim. We reverse the judgment and remand this case, with directions to the trial court to require the municipal authorities to issue a warrant in satisfaction of this debt, and when the warrant so issued is filed it shall take precedence of all other claims, payable from the general revenues, from the date of its filing.

Reversed and remanded.

Suggestion oe Error.

'After the delivery of the foregoing opinion counsel for the appellee presented an elaborate suggestion of error.

Mates, O. J.,

delivered the opinion of the court in response to the suggestion of error:—

This case was most carefully considered by the court on its original hearing. A suggestion of error now filed challenges our attention a second time. We find no new argument in the suggestion of error. This case is somewhat novel in the jurisprudence of the state, but every question was given careful thought. The whole proposition involved may be summed up by this statement: That the real question is whether or not the courts of this state have the power to make effective their judgments, when against a municipality. We answer this proposition in the affirmative.

Counsel filing the suggestion of error calls our attention to Code 1906, § 3333, as1 a statutory inhibition on the power of the municipal authorities to draw a warrant in excess of the amount of funds on hand in the treasury at the time. This statute is a successful barrier to the municipal action, but does not affect the power of the court to make effective its judgment. The statute has no sort of application in this controversy. Let us consider it for a moment. It first provides that the mayor and board of aldermen shall have the power “to appropriate money and provide for the current expenses of the municipality.” It then provides that “an indebtedness shall not be incurred nor a warrant be drawn on the treasurer in payment of any indebtedness to exceed the amount of funds on hand in the treasury at the time.” This section applies to voluntary municipal action alone. Its design is to protect the municipality from the improvidence and extravagance of the municipal authorities, but it is no limitation on the compulsory power of the courts to make effective their judgments. In this case there is no attempt on the part of the municipal officers to provide for any current expenses, nor to incur an indebtedness or draw a warrant on the treasury, save as directed by the court’s order to compel justice to be done. If the authorities of a municipality have no power to make a debt, the inhabitants will be protected from any unauthorized act in an excess of power; liut when the debt is a binding obligation a municipality, like any other creditor, must pay the debt if it has the property so 'to do,, although some inconvenience may be suffered thereby.

We thoroughly discussed all these questions in the original opinion. The municipal officers of the town of Jonestown, as such, are all parties to this proceeding. The statute makes them parties under the facts of this case, and there is nothing in the suggestion that the clerk is not a party, and therefore the judgment of the court cannot operate on him. '

There is a motion in the cause for judgment here, and on reviewing the entire record we can see no reason why this motion should not be sustained. It is therefore ordered by the court that the suggestion of error be overruled; that the former order of the court remanding the case be vacated, and a judgment entered here in accordance .with this opinion, after the clerk shall have calculated the amount due under the judgment; and the former order of the court reviewing the trial court be as was directed in the original opinion.

Suggestion of error overruled.