State ex rel. Carpenter v. Supervisors of Beloit , 20 Wis. 79 ( 1865 )

Cole, J.

In each of the above cases a rule was granted, requiring the board of supervisors of the town of Beloit, and the common council of the city of Beloit, to appear and show cause why a peremptory writ or writs of mandamus should not be granted, commanding them to proceed and levy a tax to pay the judgments described in the applications. It is now moved, on behalf of the respondents, that this rule be vacated and discharged for various reasons. We are satisfied that the motion must prevail so far as the city of Beloit is concerned, because we deem it irregular practice to ask for several writs of mandamus in a single rule. See Tapping on Mandamus, Vol. 74 Law Lib., p. * 299; The Queen v. the Mayor of Bridgeworth, 10 Ad. & El., 66 (37 Eng. C. Law, p, 45.) It is very apparent that the duty to be performed by the board of supervisors and the common council of the city is several in its nature. It is to proceed and levy a tax upon the property within their respective districts, to pay these judgments. The judgments are in form against the town alone. But for the purposes of this motion we assrnne that the court, on a proper application, would grant a writ of mandamus against the city, compelling it to pay its just proportion of them. We do not, however, wish to be understood as deciding that question at this time. It is left open ex industria for further argument. From the fact that the city of Beloit was organized out of territory originally embraced within the limits of the town of Beloit, after the bonds (the interest of which was the foundation of the judgments above referred to) were issued, and from the various provisions of the city charter (sections 12, 16 and 17, chap. 10, Priv. Laws 1856, p. 990-91), it is claimed that these judgments are conclusive upon the city, and that it cañ be compelled by mandamus to pay its share of them. This may be so; still the practice of moving for one or more writs of mandamus in the same rule we deem improper, to this extent at least, that only one writ should issue on sucb a rule. But because too much, is asked for in tbe rule, or because tbe rule is in tbe alternative, that a writ be granted against tbe town and against tbe city, or that several peremptory writs be granted, it is argued that tbe whole rule should be discharged. Eor, it is said, tbe relator must show a clear legal right to all be asks for, and if be demand too much, judgment will be given for tbe respondent. Sucb seems to be tbe practice when an alternative writ is issued in tbe first instance. Then, if tbe alternative writ nplrp for too much, tbe peremptory writ will not be awarded. Eor, tbe courts say, tbe peremptory writ must follow tbe alternative mandamus, and there cannot be judgment for tbe relator for part and for the respondent for tbe other part. The People v. The Supervisors of Dutchess, 1 Hill, 50; McSpedon et al. v. The Board of Supervisors &c, 18 How. Pr. R., 152. It is proper to say that our attention was not called to this point of practice in tbe case of tbe State ex rel White et al. v. Winn (19 Wis., 304), or probably tbe writ would not have been granted in that case. We certainly did not intend to establish any new rule of practice by tbe decision then made; and therefore we do not feel committed upon a point not made on tbe argument, and to which our attention was not directed. But a different jrractice seems to obtain where a party ajDplies for a peremptory writ on a rule to show cause. There, Tajrping says, if tbe rule be not sucb as tbe relator is contented with, or be misconceived, tbe court, for tbe purposes of justice, will mould it according to tbe exigencies of each particular case. Tapping on Mandamus, marg. pages 306-7, 328; The King v. The Church Trustees of St. Pancras, 3 Ad. & EL., 535 (30 R. C. L., 146); Rex v. The Lord and Stewards &c., 2 Smith, 54. If necessary, tbe court will strike out part of tbe rule nisi, and make tbe rule absolute in a modified form. So, if tbe relator shows a good ground for a peremptory writ against tbe town, tbe entire rule to show cause should not be discharged.

Tbe judgments mentioned in tbe first two applications were obtained in tbe district court of tbe United States; and it is insisted tbat no mandamus to enforce tbem can properly issue from tbe state courts. This objection bas been already overruled in Soutter v. The City of Madison, 15 Wis., 30, and need not be further considered.

It is very evident tbat tbe authorities of tbe town of Beloit cannot, on these applications, question tbe validity of tbe bonds and coupons upon which tbe judgments were rendered. Whether tbe city is in any different attitude, we need not stop to determine. But clearly tbe town, having bad a full and ample opportunity to raise all such questions, and in fact after having once presented tbem to tbe consideration of tbe court, must now be estopped by tbe decision of tbem. See tbe case of Bushnell v. Beloit, 10 Wis., 195, where many points raised upon tbe argument of this motion were directly overruled.

And this brings us to tbe main question, whether tbe applications make a good case for issuing a mandamus requiring tbe town authorities to proceed and levy a tax to pay these judgments. Tbat question, in principle, bas already been decided by this court. Soutter v. The City of Madison, supra; State ex rel. Van Vliet v. Wilson et al., 17 Wis., 687. By tbe law under which these bonds were issued, it was made tbe duty of tbe board of supervisors of tbe town of Beloit, whenever it should be necessary, to annually levy a tax upon tbe taxable property of tbe town sufficient to pay tbe interest upon such bonds after deducting tbe dividends due to such town on its shares of stock. Sec. 3, cb. 12, Priv. Laws of 1853. Here is a clear, distinct and specific duty imposed by law upon tbe board of supervisors of tbe town, and no reason bas been suggested why they should not perform it. And if tbe supervisors wholly neglect to make any provision for paying tbe interest as it falls due, by levying a tax, no principle of law is better settled than that they may be compelled to perform this duty by mandamus. See tbe authorities referred to in The Commonwealth ex rel. Thomas v. The Commissioners of Alleghany Co., 32 Pa. St., 218; Commonwealth ex rel. Hamilton v. Select and Common Council of Pittsburgh, 34 id., 496; Commonwealth ex rel. Middleton v. Commissioners of Alleghany Co., 37 id., 237.

It is suggested that if the writ goes at all, it should be to compel the board to assess and collect a sufficient amount to pay the interest upon all the bonds, so that each holder may not have to institute proceedings for himself, thus subjecting the town to a multiplicity of suits. There is certainly great force in this view, and if deemed correct, the writ, should it be granted, can be so framed.

But again, it is said that the rule against the town should be discharged because the applications show that a vacancy exists in the board of supervisors — the chairman of the board.only having qualified — and therefore the writ would be nugatory, as there is no power in any body to properly execute it. Whether the three supervisors of the town can alone perform the duty of levying the tax for the payment of the interest due upon the bonds, is a question we will not 'decide upon this motion. A demand was made for the payment of two of the judgments when the board was full, and it may be very questionable whether the supervisors can shirk their responsibility or evade their duty by resignation or a refusal to qualify when elected. But however this may be, we do not think the rule against the town should be discharged for anything appearing on the applications.

It follows from our views, that the motion to discharge the rule, so far as the city is concerned, should be granted, and denied as to the town.

By the Court. — Ordered accordingly.