State ex rel. Bushnell v. Gates

Mandamus, to compel levy of tax to pay judgment against town. 1. The law under which bonds of a town were issued, made it the duty of the town authorities to assess and collect a tax to pay the coupons. Held, that if that was an objection to a holder’s right to a judgment at law upon the coupons, still it could, not be urged, after such judgment recovered, against the issue of a mandamus to compel the clerk to levy a tax to pay it (under secS. 77, 78, chap. 15, R. S.) 2. Mandamus will lie against a town officer, although the papers laying a foundation for the application were served upon his predecessor.

APPEAL from tbe Circuit Court for Rock County. Bushnell recovered a judgment against the town of Beloit, in said court, for $162.78 damages, on coupons attached to bonds issued by said town under cháp. 12, Pr. & L. Laws of 1858; and the judgment was affirmed by this court. 10 "Wis., 195. A certified copy of the judgment, with the affidavit required by. sec. 78, chap. 15, R. S., was filed with one Morse, clerk of said town, prior to the time of levying and assessing' the taxes of the town for 1866, together with a demand on said clerk that he should assess the amount of the judgment, etc., on the taxable property of the town, according to the provisions of that section; but he neglected so to do. Bushnell then applied for a rule on the clerk to show cause why he should not proceed to levy such tax; and the papers on which the motion was founded show not only the above facts, but also that since said judgment was rendered there had been but one supervisor of said town in office (21 Wis., 280); that Egbert Gates had become clerk of said town; and .that no part of the judgment had been assessed, etc. Gates moved to discharge the rule, on the grounds, 1. That no reason was shown why the relator did not avail himself of the remedies provided in said chap. 12, Pr. & L. Laws of 1853. 2. .That there was no proof of any demand upon him (said Gates) to perform the act sought to be enforced. — The court made an order discharging the rule; and the relator appealed. Section 3, chap. 12, Pr. & L. Laws of 1853, is as follows: “The board of supervisors of the town of Beloit, whenever, the same shall become necessary, shall annually levy a tax upon the taxable property of said town, sufficient to pay the interest upon such bonds, after deducting the dividends due to such town on said shares of stock.” 1. It was the duty of the clerk, after the' transcript of judgment and the affidavit were filed, to assess the tax. R. S., chap. 15, secs. 77, 78. 2. He having neglected or refused to perform this duty, the party interested is entitled to a mandamus. School list. v. School list., 3 Wis., 333; State v. Smith, 11 id., 65; State v. Wilson, 17 id., 687. 3. It is no objection, that the present incumbent of the office is not the one on whom the demand was made. Soulier v. Madison, 15 Wis;, 37; People v. Collins, 19 Wend., 56, 68; Graham v. Maddox, 6 Am. Law Reg., 626. 4. The right of the relator to his judgment is settled. Bushnell v. Beloit, 10 Wis., 195. The judgment being rendered, the statute determines the manner of its enforcement; and it is too late to urge that he was not entitled to the judgment. Besides, this court has decided that on thé state of facts shown here, there is. no remedy against the board. State ex rel. Carpenter v. Beloit, 21 Wis., 280. 5. The bondholder may pursue either of three courses to recover his interest: (1). Mandamus to compel taxation under the act, without judgment. Comm, v.' Alleghany Co., 32 Pa. St., 218; Comm. v. Pittsburgh, 34 id., 496. (2). Judgment on the coupons, used as evidence of non-payment of interest, and mandamus to compel taxation under the act. Soutter v. Madison, 15 Wis., 37; Ilavemeyer v. Mineral Point and Ward v. Sheboygan Go., not reported. (3). Judgment at law, enforced by execution or otherwise as tlie law may regulate tbe enforcement of judgments, without regard to the cause of action on which it was rendered. These are cumulative remedies, and he may pursue either. Anderson v. Hooks, 9 Ala., 704. contended that no demand was shown upon the respondent to perform the act sought to be enforced, nor had he had any opportunity to do so since entering upon his office, no levy and assessment having been made in that time; and it must be presumed that he will perform his duty at the proper time. 2 Johns. Cases (2d ed.), 217-18, note; Crary’s N. Y. Practice, 274, and cases there cited. 2. A mandamus will not be granted when another remedy may be obtained by action, or is clearly provided by law. People v. Wood, 35 Barb., 653; 22 How. Pr.,286; 13 Abb., 374; 6 Hill, 243; 5 id., 616-27; 2 id., 45, 369; 2 Cow., 444; 11 N. Y., 563-73; 1 Wend., 218. In this case an effective remedy is clearly provided by sec. 3, chap. 12, Pr. & L. Laws of 1853. \Mr. Jackson also argued that if it was the duty of Morse, the town clerk in 1866, to assess the amount of the judgment on the taxable property of the town and put it in the tax roll for that year, and he had neglected or refused to do so, then the relator had his remedy by action against said Morse, citing People v.- Supervisors, 11 N. Y., 563; People v. Lawrence, 6 Hill, 244; Ex parte Lynch, 2 id., 45; People v. Brooklyn, 1 Wend., 318; Boyce v. Russell, 2 Cow., 444; People v. Mayor, etc., 25 Wend., 680-84.] 3. The act which ■authorized the issue of the bonds having provided a special remedy for the collection of the principal and interest, that remedy is exclusive. It is a part of the contract, and is binding upon both parties. Van Hoffman v. The City of Quincy, 4 Wallace, 535. Sections' 77 and 78, chap. 15, R. S., are chap. 30, G-eneral Laws of 1857. They were no part of the law when the bonds were issued. Counsel cited further the cases of Carpenter v. Beloit and Morgan v. Beloit, in the circuit court of the TJ. S. for the district of "Wisconsin (unreported), in which (they stated) that court denied applications precisely similar to this, upon the ground that the relator was hound to resort to the remedy provided by said sec. 3, chap. 12, Pr. Laws of 1853. When a statute creates a right, and provides the means of protecting or enforcing it, the party is confined to that remedy. Dudley v. Mayhew, 3 hi. Y., 9; Smith v. Lockwood, 13 Barb., 209; City of Boston v. Shaw, 1 Met., 130-38; Sedgw. on Stat. & Con. Law, 94. See also Knox Co. v. Aspinwall, 24 ITow. (TJ. S.), 376; People v. Mead, 24 U. T., 114; People v. Supervisors Columbia Co., 10 Wend., 363; Supervisors v. United States, 4 Wallace, 435.