A return to a mandamus ordering a municipal corporation
forthwith to levy a specific tax upon the taxable property of a
city for the year 1865 sufficient to pay a judgment specified,
collect the tax and pay the same, or show cause to the contrary by
the next term of the court is not answered by a return that the
defendants,
"in obedience to the order of the court, did proceed to levy a
tax of one percent upon the taxable property of the said city for
the purpose of paying the judgment named in the information and
other claims, and that the said tax is sufficient in
amount to pay the said judgment and other claims for the payment of
which it was levied."
The return should have disclosed the whole act constituting the
levy, so as to enable the court to determine whether it was
sufficient to pay the judgment of the relator. It was also
erroneous in returning that the tax was levied to pay this judgment
"and
other claims."
Benbow recovered judgment on the coupons attached to certain
bonds which Iowa City issued to pay its subscription
Page 74 U. S. 314
to the stock of the Mississippi & Missouri Railroad Company,
and having failed by the ordinary process at law to obtain
satisfaction of his judgment, he applied to the circuit court for a
mandamus to compel the mayor and aldermen, in obedience to the
provisions of the ordinance authorizing the issue of these bonds,
to levy and collect the requisite tax to pay the judgment.
The court awarded the writ and commanded the mayor and aldermen
forthwith to levy a specific tax upon the taxable property of the
city for the year 1865 sufficient to pay the judgment, interest,
and costs, collect the tax and pay the same, or show cause to the
contrary by the next term of the court.
The defendants made return to the writ, that
"in obedience to the order of the court, they did proceed to
levy a tax of one percent upon the taxable property of the said
city for the purpose of paying the judgment named in the
information and
other claims, and that the said tax is
sufficient in amount to pay the said judgment and other claims for
the payment of which it was levied."
To this return the relator demurred as insufficient. The court
overruled the demurrer and gave judgment accordingly; and the
relator brought the case here.
MR. JUSTICE DAVIS delivered the opinion of the Court.
The sufficiency of the return is the sole question in the case.
The return does not deny the obligation of the writ nor offer an
excuse for not obeying it, but states to the court that its command
has been obeyed.
Is this true? The writ commanded that the taxes should not only
be levied but collected and paid to the relator before the return
day of the writ, yet, there is no averment of their collection and
payment, nor an excuse furnished for nonperformance. If it was
impossible to collect and pay the taxes in the time allowed, the
return should have stated facts from which the court could have
inferred a legal
Page 74 U. S. 315
excuse for not doing it. On this point the return is wholly
silent.
But the defect in this return reaches much further. Insofar as
it avers performance, it does it only in the words of the writ,
which, if nothing more were required, would put the defendants in
place of the court. To make the return properly responsive to the
writ, it was necessary to disclose the whole act constituting the
levy, so as to enable the court to determine whether it was
sufficient to pay the judgment of the relator.
How could the court decide on the sufficiency of the levy to
accomplish the purpose of the writ without knowing the value of the
taxable property of the city? The court should not only have been
advised of the amount on which the levy was formed, but as the writ
commanded, the year in which the valuation was made. The return is
also defective in another important point. The mandate was to levy
a specific tax to pay the relator's judgment; the return is that
the tax was levied to pay the judgment and other claims. The nature
and extent of these claims were not given, and the court had
therefore no means of ascertaining whether the fund to be raised
would be sufficient for their discharge, and the satisfaction of
the relator's demand. But apart from this there was no authority to
import outside claims into this levy.
The relator had been deprived of his annual interest because
these defendants had neglected to provide for it, as they were
required to do by the ordinance which authorized the creation of
the debt. To compel the performance of this omitted, duty the
mandamus was issued, and it did not empower the mayor and aldermen
to embarrass the levy which it directed by joining with it other
obligations against the city with which this relator had no
concern.
Without pursuing the subject further, enough has been said to
show that the demurrer to the return should have been
sustained.
The judgment of the circuit court is reversed and the cause
remanded with directions to proceed in conformity with this
opinion.