City of Shawnee v. City of Tecumseh , 52 Okla. 509 ( 1915 )

In a mandamus proceeding "no other pleading or written allegation is allowed than the writ and answer." Section 4915, Rev. Laws 1910. It therefore follows that the contention of plaintiff in error that the proper pleadings were not filed in this case is without merit. The judgment rendered and here complained of is resadjudicata, and every fact that was involved in said judgment or that could have been involved was finally disposed of, and consequently the court did not err in refusing to hear the evidence offered by plaintiff in error in its effort to collaterally attack said judgment. Woodworth v. Town ofHennessey, 32 Okla. 267, 122 P. 224.

The contention of plaintiff in error that an alternative writ of mandamus was not issued in this case is not well taken, as a peremptory writ may properly be issued "when the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it," which is the case here. Section 4910, Rev. Laws 1910. Mandamus is a remedy to compel the performance of a duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and undisputable.Territory v. Crum, 13 Okla. 9, 73 P. 297; United States v.Beebe, 127 U.S. 346, 8 Sup. Ct. 1083, 32 L.Ed. 121. The motion to dismiss the application for mandamus in the trial court had no basis of law upon which to stand.

The relief sought by plaintiff in error is under section 7378, Rev. Laws 1910, which, in part, provides as follows:

"Each board of county commissioners, the mayor and council of each city, or the officers exercising like powers in any city having a charter form of government, the board of trustees of each incorporated town, the directors of each township, the board of education in each city and the directors of each school district, shall meet on the first Monday in July of each year, and shall respectively make out an itemized statement of the fiscal condition of their respective municipalities and of the estimated needs thereof for the current expenses of the ensuing fiscal year. Said estimate shall show, first, any unexpended balance on hand of the levy for any previous year or years for current expense purposes; second, the estimated income of the municipality from all sources other than fromad valorem taxation, and such estimated income for school district purposes shall include the apportionment of the income from the common school fund, based on the distribution for the next preceding fiscal year; third, an itemized estimate of the amount necessary for the current expenses of each such municipality for the ensuing fiscal year; fourth, the amount necessary for a sinking fund, sufficient to pay at maturity all bonded indebtedness of such municipality; fifth, the amount necessary to pay the interest coupons falling due on its outstanding bonded indebtedness."

This section must be construed in connection with sections 6771 and 6773, Rev. Laws 1910, which read:

"6771. It shall be the duty of the officers of each municipal corporation in the State of Oklahoma by law authorized to levy taxes to make a levy each year for the sinking fund, which shall, with the money already in such fund, be sufficient to pay all the bonded indebtedness of such municipality coming due during the following year; one year's interest on all outstanding bonds of such municipality, with an allowance of twenty-five per cent. or delinquent taxes added; and an additional sum equal to one-third of the original amount of all outstanding judgments against the municipality, when one-third or more of such judgment remains due and unpaid, and in case less than one-third of such judgment remains due, then the levy shall cover the entire amount of such judgment yet remaining unpaid.

"6773. Such sinking fund shall be used: First. For the payment of interest coupons as they fall due. Second. For the payment of bonds falling due, if any such there be; and, Third. For the payment of judgments against the municipality, if any there be."

Construing said sections of the statute quoted supra together, it is clearly shown that it is the duty of the mayor and council of the city of Shawnee to include in said statement required to be made by them to the excise board of Pottowatomie county, as an item "of necessary expense for a sinking fund," the amount of said judgment recovered by the city of Tecumseh against the city of Shawnee, to the end that said excise board may levy sufficient taxes to pay one-third of said judgment per year until said judgment and interest thereon is paid; and upon the failure of said mayor and council to include such amount in said statement required by said section 7378 to be made to the excise board, said mayor and council may be compelled by mandamus so to do.

Section 6773, Rev. Laws 1910, as amended by act of the Legislature, approved March 5, 1915 (Sess. Laws 1915, p. 126), provides that a judgment against a municipality may be paid out of the sinking fund on hand, and the deficit thereby caused in such fund may properly be included in said statement required to be made by the mayor and council of a city to the excise board, as an item to be included in the necessary sinking fund.

In addition to the above-stated modes of paying judgments, it is provided by section 362, Rev. Laws 1910, that bonds may be issued for paying outstanding judgments, and when this course has been pursued the amount of the interest accruing on such bonds and the amount to redeem such bonds at maturity may properly be included in the statement required to be made by the mayor and council of a city to the excise board of the county, as an item "of the amount necessary for a sinking fund."

In either mode which may be adopted for the payment of an outstanding judgment against a city, the prime requirement of the law — that the excise board be advised of the fiscal condition of the city, to the end that the said board may intelligently make the required levies for the collection of necessary taxes — is met. Hence, while the contention of the city of Shawnee that "in said statement required there is no provision for an estimate to pay one-third of judgments against municipalities" is correct to the extent that such estimate is not required in just these words, still it is the law. Such statements, in order to show "the fiscal condition of a city," must state what judgments are outstanding against it, and must provide for their payment by including them in such statement as items of the "necessary sinking fund," whether such judgments are paid out of the sinking fund on hand, or by a levy of a sinking fund to pay the same, or by the issue of bonds, as provided by said section 362, supra. Consequently, the said contention of the city of Shawnee that "there is no provision for an estimate to pay one-third of judgments against the municipality" is but following the shadow, and not the substance of the law.

It follows that the peremptory writ of mandamus in this case was properly awarded, and this case should be affirmed.

By the Court: It is so ordered.