Union Safe Deposit Bank v. City of Menlo Park , 3 Cal. 2d 264 ( 1935 )

3 Cal. 2d 264 (1935)

UNION SAFE DEPOSIT BANK (a Corporation), Petitioner,
v.
CITY OF MENLO PARK (a Municipal Corporation) et al., Respondents.

S. F. No. 15237.

Supreme Court of California. In Bank.

April 19, 1935.

Nutter & Rutherford and A. P. Hayne for Petitioner.

James T. O'Keefe, City Attorney, for Respondents.

James H. Mitchell, Leon T. David and Wm. Mackenzie Brown, as Amici Curiae on Behalf of Respondents.

CURTIS, J.

[1] Petitioner is the owner and holder of several bonds issued pursuant to the Improvement Bond Act of 1915. (Stats. 1915, p. 1441.) Petitioner, after alleging in its verified petition the necessary facts as to the issuance of said bonds, the default of the property owners in the payment of the assessments levied for the purpose of paying the principal and interest on said bonds, and the sale of the property in the several districts against which said bonds were made a lien, the several amounts due and unpaid on the bonds held by petitioner, and the refusal of the respondents, as officers of said city, to take the necessary legal steps provided by said act to levy a tax to pay the amount due and unpaid on said bonds, prays for a writ of mandate to issue out of this court directed to respondents compelling them as officers of said city to perform their duty as enjoined upon them by said improvement act. The respondents have appeared herein and filed an answer to said petition in which they admit the material allegations of the petition. The answer contains denials of certain legal conclusions in the petition, and of other matters contained in the petition not material to any issue involved herein. The admitted facts in this case bring it squarely within the principles of law enunciated by this court in the case of American Co. v. City of Lakeport, 220 Cal. 548 [32 PaCal.2d 622]. We are, therefore, of the opinion that a mandatory duty rests upon the respondents to levy and collect a tax to meet said delinquent assessments, such tax, however, being limited to 10 cents on each $100 of assessable property as provided in section 16a of said act (as amended in 1921, Stats. 1921, pp. 224, 230), and that said levy be made and said tax levied on or before the time fixed by law for the next general tax levy for municipal and county purposes. [2] As the duty to levy and collect said tax to pay the principal and interest on said bonds is a continuing obligation, the question involved herein has not become moot. (American Securities Co. v. Forward, 220 Cal. 566, 572 [32 PaCal.2d 343, 96 A.L.R. 1268].)

It is hereby ordered that a writ of mandate issue directed to respondents commanding them to levy and collect said tax in the amount and at the time stated herein.

Thompson, J., Seawell, J., Shenk, J., Preston, J., Langdon, J., and Waste, C.J., concurred.