Although a defense to the merits, if pleaded in the original
action, might have prevented rendition of the judgment, it cannot
be urged to prevent mandamus from issuing to enforce the
judgment.
Under the laws of New Mexico, where there is no possible excuse
for a board of county commissioners not to comply with a judgment,
a peremptory writ of mandamus in the first instance is
authorized.
Where the bill shows it is clearly the purpose of defendant
officers not to perform a duty imposed upon them, demand is not
necessary before suit for mandamus.
Page 215 U. S. 297
Where part of a county have been detached by statute which
provides for the detached portion bearing their proportion of
indebtedness, the counties to which those portions are attached are
not necessary parties to a suit to recover obligation of the
original county. After judgment, the original county which is
primarily liable may enforce contribution through the proper
officer for the proportionate share of the detached portions.
In this case, it was held that the facts justified the amount of
the tax levy required by the writ of mandamus as modified by the
Supreme Court of the Territory.
Practice of the courts in a territory is based upon local
statutes and procedures, and this Court is not disposed to renew
the decisions of the supreme court of the territory in such cases,
and, following the Supreme Court of the Territory of New Mexico,
this Court holds that the power of that court to affirm or reverse
and remand includes the power to modify, and extends to proceeding
in mandamus.
14 N.M. 134 affirmed.
The facts are stated in the opinion.
Page 215 U. S. 299
MR. JUSTICE McKENNA delivered the opinion of the Court.
These appeals are prosecuted to review judgments of the Supreme
Court of New Mexico modifying, and affirming as modified, judgments
of mandamus of the District Court of Santa Fe County commanding the
appellants to levy a tax of ten mills in each case on each dollar
of taxable property in the county, to pay certain judgments for the
amount of principal and interest upon bonds issued by the county.
The cases are here on separate records, but, as they are submitted
together, we dispose of them, as the supreme court of the territory
did, in one opinion.
The proceedings were commenced by petitions which are alike
except as to the amount of the judgment recovered. In No. 42, it is
alleged to be $60,926.02; in No. 43, it is alleged to be
$74,358.19. Both judgments were recovered in the district court of
the county in which the petitioners (appellees here) were
complainants and the board of county commissioners were defendants.
It is alleged that the judgments ordered the sums due as above
stated, and the interest thereon to become due at five percent per
annum from the date of the judgments,
"to be assessed and levied upon and out of the taxable property
situate in the said County of Santa Fe, and to cause the same to be
collected in the manner provided by law, and to pay the same out of
the treasury of said county to the said complainants, their legal
representatives or assignees, upon the delivery of a proper voucher
therefor."
Default in the payment of each of the judgments and its
requirements is alleged, and that the board held a meeting during
the month of July or August, 1905, and made a levy
Page 215 U. S. 300
for various territorial purposes, but
"wholly failed and refused to make any levy whatsoever, and
still fail and refuse to make any levy whatsoever, for the said
year of 1905 for the purpose of raising funds to pay the aforesaid
judgment, and interest and costs thereon."
The want of a plain, speedy, and adequate remedy at law is also
alleged. Peremptory writs of mandamus were issued without a
hearing.
Subsequently, the appellants filed a petition in each case in
the district court and prayed "that the peremptory order be
suspended herein, and that they be permitted to show cause and be
heard before the order and writ are made permanent."
To sustain this prayer, they alleged that, at the date of the
rendition of the judgments of appellees, all of the property within
the County of Santa Fe subject to taxation was liable for the
payment of its
pro rata of the judgments; that the
thirty-fifth legislative assembly "eliminated" portions of Santa Fe
County, and attached them respectively to the county of Rio Arriba
and the County of Torrance, and made them subject to their
proportions of the indebtedness of Santa Fe County; that the
taxable property situate therein is liable for its part of the
indebtedness; that the county commissioners are without
jurisdiction to levy and assess taxes upon it, and that the
peremptory writs include only "the property and territory within
the present boundaries" of Santa Fe, and do not pretend to include
that in Rio Arriba and Torrance; that, by a mandamus issued out of
the district court on the twenty-fifth day of January, 1901, the
county commissioners were required to levy a tax upon the taxable
property in Santa Fe sufficient in amount to produce a sum of
$135,284.19, with interest thereon from the twenty-fourth of
September, 1900, until paid at five percent per annum, and $30
costs, the said sum being for the amount of the judgments in cases
4091 and 4092 of the District Court of Santa Fe County; that the
board obeyed the writ, and levied eighty-two mills on each dollar
of taxable valuation, and
Page 215 U. S. 301
certified the same to the treasurer and
ex officio tax
collector of the county, and directed him to place the same on the
tax rolls and collect in the manner provided by law; that the levy
is still standing on the tax rolls of the county, and is a lien
upon the taxable property of the county as then existing, and
subject to the payment of the judgments; that the commissioners are
without authority to enforce the same, and that the levy is ample
and sufficient to cover the amount of the judgments in cases Nos.
4091 and 4092, and that the levy of ten mills in each case is
largely in excess of the amount required, and is "unjust and
unfair" to the taxpayers of the County of Santa Fe, and ruinous to
its "progress and prosperity." It is alleged that the board is
entitled to be heard on the amount of levy, or whether any levy
should be ordered, as there exists a legal and adequate levy to
cover the judgments; that it is impossible to determine the amount
of levy necessary to be made for the year succeeding 1905 until the
tax roll for that year has been completed and the amount of taxable
property determined; that the board should not be held in default
until the time shall arrive when the levy can be made, and they
shall have failed to perform their duty; that the levy of the tax,
as required by the writ, is not one which the law "enjoins as a
duty resulting from an office, trust, or station," because the levy
of eighty-two mills, when collected, will be sufficient to pay the
judgments, and that it is not a duty of the board to collect it,
but "the duty of the treasurer and
ex officio tax
collector of Santa Fe County." It is alleged appellees have a
plain, speedy, and adequate remedy at law.
As an additional ground of the motions, it is alleged that the
act of Congress, by which the bonds are
"pretended to have been validated, approved, and confirmed is
indefinite, uncertain, and incapable of reasonable interpretation
and enforcement, so as to be applied to any bonds issued by the
County of Santa Fe,"
and does not sufficiently identify what bonds are intended to be
validated, approved, and confirmed,
Page 215 U. S. 302
nor what holders of the bonds, it being alleged that they
"are subjects of different ownership and are not all in the
hands of one person, and it cannot be determined from the said act
of Congress what holder of said bonds, in excess of the amount
named in the said act of Congress, shall not have the benefits of
validation."
And further that, at the time of the passage of the act of
Congress, there was more than one refunding act in force in the
territory, but what refunding act is referred to by the act of
Congress is not disclosed.
The motions to suspend the peremptory writs were denied, and the
orders denying them were affirmed by the supreme court of the
territory. The latter court, however, modified the writs, as will
be presently pointed out.
The assignments of error in the supreme court of the territory
repeated and emphasized the grounds urged in the motions to suspend
the peremptory writs of mandamus. In this Court, the modification
of the judgments by the supreme court of the territory is attacked
and some new contentions are made.
The case is submitted on briefs, and we shall not attempt to
trace an exact correspondence of the arguments of appellants with
the assignments of error, nor, indeed, shall we follow the details
of the argument, but consider those matters only which we think can
in any way affect the merits of the controversy. It will be
observed in the beginning that the writs of mandamus issued by the
district court are but the execution by it of its judgments of the
twenty-fourth of September, 1900, the amounts of which the board of
commissioners were ordered to assess against the taxable property
of the county and pay the same. We may say, therefore, at the
outset that whatever could have been urged to prevent the rendition
of the judgments cannot now be urged to prevent their enforcement.
This disposes of the defense made against the orders under review
that the act of Congress validating the bonds is uncertain and
indefinite, even if it had merit otherwise. The objections that are
urged against the act of Congress are
Page 215 U. S. 303
that it cannot be understood from it what refunding act is
referred to, there being two, it is contended, or whether all of
the bonds issued under it have been validated or only an amount
thereof not exceeding $172,500, and, if no more than $172,500,
which bonds have been validated. And it is urged further that there
is no identification of what holders of the bonds in excess of the
amount named in the act of Congress shall not have the benefits of
the validation. Manifestly, such defenses should have been set up
in the original actions, and are now precluded by the judgments
therein rendered. It is established by the judgments that the
amount of bonds issued was in accordance with the act of Congress,
and was not excessive in amount, and also that the plaintiffs in
the action (appellees here) were legal owners of such bonds, and
entitled to the "benefits of validation."
Murphy v. Utter,
186 U. S. 95,
186 U. S. 113.
The appellants therefore are confined to the other objections urged
by them.
The principal of these objections is that peremptory writs
should not have been issued without a hearing, and that there
should have been a demand made of the commissioners before suit. As
to the first, it may be said that it probably appeared to the
district court that the board could have no possible excuse, and in
such case a peremptory writ is authorized in the first instance by
the laws of the territory. By §2764 of the Compiled Laws of New
Mexico for the year 1897, it is provided that
"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, a peremptory [writ of] mandamus may be allowed in
the first instance."
The second ground is also untenable. The original judgments
expressed the obligation of the board. They imposed the duty of
levying taxes to pay them, and it is alleged that the board had
levied taxes for other territorial and county purposes, but had
failed and refused to make any levy whatever to pay the judgments.
In other words, it is averred that it is clearly the purpose of the
board not to perform the
Page 215 U. S. 304
duty imposed upon it. In such a case, no demand is necessary.
Northern Pacific R. Co. v. Duston, 142 U.
S. 492,
142 U. S.
508.
We are therefore brought to the consideration of the sufficiency
of the excuses which the board made in its motions to suspend the
writs. We may briefly repeat them: (1) that portions of Santa Fe
County were attached to other counties, which portions are subject
to the payment of the judgments, and that the board is without
jurisdiction over them; (2) that a levy of eighty-two mills had
been made, which is a lien upon the property of Santa Fe County "as
then existing," and that the board is without authority to enforce
the collection of the levy; (3) that the levy of twenty mills (ten
in each case) is excessive; (4) that the board was entitled to be
heard as to the amount of the levy, or whether any levy was
necessary, "there existing upon the tax rolls a legal and adequate
levy to cover" the judgments, which it is the duty of the tax
collector to collect; (5) that it was impossible to determine the
amount of the levy necessary for the year succeeding the year 1905
until the rolls for that year had been completed and the amount of
taxable property determined; (6) that the board is not in default,
and should not be held liable until in default.
The district court evidently considered that these excuses were
without substantial merit, and such also was the view of the
supreme court of the territory. To the first -- that is, that the
portions of Santa Fe County which had been segregated from it
should have been included in the writs -- it was replied by the
supreme court that it was provided by chapter 20 of the Session
Laws of 1903 that such segregated portions were required to
contribute their just proportion to the bonded debt of Santa Fe,
that provision was made for assessment, levy, and collection of
such proportion by the officers of the new county upon the order of
the old county, and that the money collected should be paid into
the treasury of the old county. It was therefore decided that the
County of Santa Fe could
"compel contribution from the two other counties
Page 215 U. S. 305
which had received a portion of its territory, in proportion to
the amount of taxable property received, and this is the method
provided by law."
This view of the statute is not directly attacked by appellants,
and, if it may be said that the general argument is a criticism of
it, the answer is what was said in
English v. Arizona,
214 U. S. 359,
214 U. S. 363,
that "unless in a case of manifest error, this Court will not
disturb a decision of the supreme court of the territory construing
a local statute." Chapter 20 of the Session Laws of 1903 is an
answer also to other contentions of appellants. If the County of
Santa Fe is primarily liable for the bonds, she is the proper party
to an action upon them, and through her officers the payment of the
judgments recovered can be enforced. The contention of appellants
therefore that the counties of Rio Arriba and Torrance are
"necessary parties to a complete determination of the case" is
untenable, as indeed all other contentions that are based upon the
addition to those counties of portions of Santa Fe County.
The most serious contentions of appellants are that the levy of
eighty-two mills was sufficient to pay the judgments, interest and
costs, and that the levy of twenty mills in addition was excessive.
We think, however, that the reply made by the supreme court of the
territory adequately disposed of them. The learned court pointed
out that the resolution of the board of county commissioners, a
copy of which appears in the record, showed that the levy of
eighty-two mills had the purpose only, and was sufficient only, to
pay the then amount of the judgments, together with interest. It
was further pointed out that the interest to accrue was not
provided for, and that it amounted on the day when the peremptory
writs of mandamus were issued to $32,874.05. It follows
necessarily, as the court said, that the contention that the
eighty-two mills levied was sufficient "is unfounded and untrue in
fact." To the contention that the twenty mills levied are
excessive, in that they are more than sufficient to pay $32,874.05,
the court replied that, if this were so, the
Page 215 U. S. 306
peremptory writs should not have been issued. But, the court
added, it is not shown that the assessable value of property in
Santa Fe County has increased, while it does appear, on the other
hand, that portions of the county had been cut off; therefore, it
was said, it is fair to presume "that the assessed valuation of the
county is not in excess of what it was in 1901, when the eighty-two
mills levy was made." From this presumption it was concluded that
twenty mills would produce, if collected in full, $32,996, an
excess only of $112.05. And it was observed that, since the
peremptory writs were issued, interest had accrued to the amount of
$10,000.
The writs required not only the levy of twenty mills for the
year 1905, but for each and every year thereafter, and until the
judgments, with interest and costs, be paid. This the supreme court
pronounced error, and modified the judgments by striking out the
requirements for a continuous levy. This appellants assign as
error, contending that the supreme court had no jurisdiction to
modify the judgments of the lower court, and that, by doing so, it
changed the "theory and cause of action." The argument to sustain
the contention is somewhat roundabout. Exclusive original
jurisdiction in mandamus, it is said, is conferred on the district
court by § 2771 of the laws of the territory, and, while an appeal
lies to the supreme court as in other civil actions (§ 2772), that
the power of the court to modify the judgment of a district court,
given by § 897,
* does not extend
to a judgment in
Page 215 U. S. 307
mandamus. The jurisdiction of the supreme court, it is urged,
"was simply to affirm or reverse and remand." This, it will be
observed, is very general. It would seem even to imply that the
supreme court has not even the power of direction, but must leave
the district court to get right ultimately through successive
judgments, appeals, and reversals. And the anomaly is attempted to
be sustained by saying that mandamus is not included in the useful
power given to the supreme court by § 897 in cases taken to it to
"render such other judgment as may be right and just and in
accordance with law," because, it is said, that mandamus
"is not a case on the equity side of the court, nor is it one
tried on the law side with a jury, nor is it one in which a jury
has been waived and trial had by the court or judge, especially as
concerns the present proceeding."
This is a misunderstanding of the statute. Its purpose is to not
only give the power to review, but to prevent its defeat through
the distinction between causes of action and modes of trial.
Further argument is unnecessary. Even if the contention had grounds
of support, it would be answered by the case of
English v.
Arizona, supra, and the case of
Armijo v. Armijo,
181 U. S. 561.
In the latter case, we said that practice
"in the courts of a territory is based upon local statutes and
procedure, and we are not disposed to review the decision of the
supreme court in such cases.
Sweeney v. Lommre, 22 Wall.
208."
Of the other contentions of appellants it is enough to say that
they are without merit.
Judgments affirmed.
*
"In all cases now pending in the supreme court, or which may
hereafter be pending in the supreme court, and which may have been
tried by the equity side of the court, or which may have been tried
by a jury on the common law side of the court, or in which a jury
may have been waived and the case tried by the court or the judge
thereof, it shall be the duty of the supreme court to look into all
the rulings and decisions of the court which may be apparent upon
the records, or which may be incorporated in a bill of exceptions,
and pass upon all of them and upon the errors, if any shall be
found therein, in the ruling and decisions of the court below,
grant a new trial or render such other judgment as may be right and
just and in accordance with law, and said supreme court shall not
decline to pass upon any question of law or fact which may appear
in any record, either upon the face of the record or in the bill of
exceptions, because the cause was tried by the court or judge
thereof without a jury, but shall review said cause in the same
manner and to the same extent as if it had been tried by a
jury."