Where a statute of Illinois requires the board of town auditors
to audit charges including judgments against the town in order that
provision for paying them may be made by taxation,
held
that where a judgment against the town was rendered by a court
having jurisdiction of the parties and the subject matter, auditing
it is a mere ministerial act not involving the exercise of official
discretion, the performance of which can be coerced by
mandamus.
The Town of Ohio, in the County of Bureau and State of Illinois,
issued coupon bonds bearing date Jan. 1 1871, by way of payment for
its subscription to the stock of the Illinois
Page 91 U. S. 537
Grand Trunk Railway. Such subscription had been made as
authorized by an act of the General Assembly of that state in force
March 25, 1869, which provided that it should be the duty of the
proper authorities of the town to provide for the prompt payment of
all interest and other liabilities accruing on such bonds and to
levy such taxes as may be necessary therefor as other taxes are
levied. Private Laws of 1869, vol. iii. p. 307.
George O. Marcy, the holder of overdue and unpaid coupons
attached to such bonds, brought suit in the Circuit Court of the
United States for the Northern District of Illinois against the
town, and on the twelfth day of March, 1873, recovered judgment for
the sum of $4,286.60 and costs of suit.
On the fifteenth day of September, 1874, $1,500 was paid at the
treasury of the state on said judgment. Marcy then presented a
claim for the balance due thereon to the board of auditors of the
town, who are the plaintiffs in error, and demanded that the same
should be audited and certified to the town clerk in order that
provision might be made for the payment thereof according to the
township organization and revenue laws of the state. The board
allowed the sum of $871.78, but refused to audit the remainder,
amounting to $2,516.85, so that he was unable to obtain the
necessary levy and collection of taxes for the purpose of
satisfying it. Whereupon Marcy filed a petition for a mandamus
against the board.
The board, in their answer, admitting the issue and validity of
the bonds and the rendition of the judgment upon the coupons, set
up that said bonds were registered at the office of the Auditor of
Public Accounts of the state, and that each of them and of the
coupons thereto attached was payable at the office of the state
treasurer, under and by virtue of an act entitled "An Act to fund
and provide for paying the railroad debts of counties, townships,
cities, and towns," in force April 16, 1869, and that the mode of
collecting the bonds and coupons, or the judgment rendered thereon,
was fully and solely prescribed by the provisions of that act.
Page 91 U. S. 538
MR. JUSTICE DAVIS delivered the opinion of the Court.
The answer in this case presents no valid defense. The object of
the petition is to compel the plaintiffs in error, as town
auditors, to audit a judgment rendered against the Town of Ohio
upon overdue coupons attached to bonds issued by that municipal
corporation, so that it can be placed in process of collection in
accordance with the Illinois Township Law. This law provides
specifically for the auditing of town charges, among which
judgments are included, and for the levy of taxes to pay them,
Rev.Stat. of Ill. 1874, p. 1080, but the plaintiffs in error say
that judgments like the one in question can only be collected
through the mode pointed out in the Funding Act of April 16, 1869.
Id., 791
et seq.
If this were so, the relator would be placed in an unfortunate
predicament, as he could neither sue out an execution upon the
judgment nor resort to local taxation to collect it, nor oblige the
state to pay it.
The Funding Act, originating in the necessities of the indebted
municipalities of the state, proposed a mode to help them by the
collection and disbursement of a state tax levied within their
respective limits, but the state expressly disclaimed all liability
on account of their indebtedness, and only assumed the character of
a custodian of the money which reached the treasury. The act did
not profess to change the terms of the securities, nor exempt the
municipality from the obligation to pay them. They were, it is
true, registered in the office of the auditor of public accounts
and payable at the treasury of the state, but the relator was not
required to resort only there for payment. This means might fail,
but whether it did or not, his claim against the municipality for
the debt evidenced by the coupons was not thereby impaired. This is
especially true when they have been merged in a judgment, for there
is no provision in the Funding Act to pay it. Even if it could be
paid from the taxes levied by the state, the remedy he invoked is
not taken away. It would be singular if it were when the town owes
the debt and the judgment so declares. The statute, Rev.Stat. of
Ill. 1874, p. 691, provides
"That the writ of mandamus shall not be denied because the
petitioner may have another specific legal remedy, when such writ
will
Page 91 U. S. 539
afford a proper and sufficient remedy."
Under it, the inquiry whether there is even a better mode of
redress than the one asked for does not arise. It is enough to know
that the writ is an appropriate and efficient method to compel town
auditors to audit a charge against the town when their action is
necessary to determine the amount of money to be raised by
taxation. In Illinois, an ordinary execution does not issue on such
a judgment, but the corporate authorities can be required to raise
by taxation the means of paying it, when the board of auditors have
certified that it is a proper charge against the town. The relator
took the necessary steps to have this certificate made, but the
plaintiffs in error only allowed a small portion of the balance due
him, without any legal excuse for not auditing the residue. They
admit in their answer all the material averments of the petition,
and are not at liberty to question the liability of the town to pay
the judgment. It does not differ, so far as they are concerned,
from one obtained against the town for ordinary charges. It was
rendered by a court having jurisdiction of the parties and the
subject matter, and there is no controversy as to the amount
remaining unpaid. Auditing it so that provision may be made for its
payment by taxation is a mere ministerial act not involving the
exercise of official discretion, the performance of which can be
coerced by mandamus.
The circuit court in this case commanded the auditors to meet
forthwith and audit the judgment.
Although we are not prepared to say that the court exceeded its
power in this particular, yet we are of the opinion that this
order, if carried out, might lead to embarrassments, and that it
were better it should be modified. The statute requires that the
board of auditors shall meet semiannually to examine and audit town
charges. It is made their duty to cause a certificate of their
proceedings to be filed with the town clerk for the purpose of
having the same certified to the clerk of the county in order that
the amount certified may be by him levied and collected by taxation
in the manner prescribed by the revenue laws of the state.
If the clerk should be advised that he was not authorized to
extend a tax for the payment of this judgment on a certificate
Page 91 U. S. 540
of the auditors made at an irregular meeting, the relator would
be still further delayed, as the writ in this case operates on the
auditors, and not on the clerk. In order to avoid the delay, if
nothing more, which would occur if such a question were raised, it
is advisable that the auditors be required to meet at a time
authorized by the statute.
The judgment of the circuit court will therefore be modified
so as to direct the board to assemble at their next regular
semiannual meeting and allow said judgment.
