City of Port Townsend v. First Nat. Bank of Central City

(after stating the facts as above). The defendant presents certain questions which were determined by this court in Intermela v. Perkins, 205 Fed. 603, 123 C. C. A. 619. Those questions were carefully considered, both on the original hearing and on a petition for rehearing, and a petition to the Supreme Court for certiorari was denied. Intermela v. Perkins, 231 U. S. 757, 34 Sup. Ct. 324, 58 L. Ed. 468. One of the questions so decided, and now again presented, was whether the city council of the defendant, which met at a regular session on February 15, 1898, and took recess until a designated hour on February 16th, and thereupon took a further recess until a designated hour on February 17th, could, upon said last-named date, lawfully authorize the issuance of the warrants, in view of the Code provision which inhibited the passing of any ordinance or the allowance of any bill for payment of money at a special meeting, or at any adjourned regular meeting of a city council. We held that such an adjournment taken from day to day does not interrupt the business of the session, that it was the intention and purpose of the council to hold a continuous session, and that such adjournments were permissible, as within the intendment of the statute.

But it is said that facts áre presented in the case at bar which were not before the court in the Intermela Case. Attention is directed to the fact that in the latter case it was said in the opinion that the council met on February 15, 1898, at a regular meeting “and, finding itself unable to complete or transact the business in hand, took a recess * * * until another day, at which time the business in hand was completed”; whereas in the case at bar it is proven that the regular meeting of February 15th was a short meeting, and that all pending business might .have been transacted at that time, and. that the recess was taken because the council was not yet ready to act. Conceding this to be true, it does not take the case out of the rule of the Intermela decision, nor does it create a distinction in principle between that case and this. On the other hand, its tendency is to show that the three *35sessions were in fact but one meeting, and for the consummation of a single purpose. That purpose was the compromise settlement and adjustment of the judgments against the defendant.

Counsel for the defendant cite Seymour v. Ellensburg, 81 Wash. 365, 142 Pac. 875, a decision subsequent in date to the Iutermela Case, as establishing the rule that powers granted to the officers of municipal corporations must be strictly construed, and deciding that, when warrants are drawn upon a city treasurer under a charter which requires that the warrant shall specify for what purpose the same is drawn, and out of what fund it is to be paid, the statute is mandatory, and the warrant is void if it fails to specify the purpose. But there is nothing in that case that conflicts with the decision of this court in the Interínela Case. This court did not. fail to recognize that the statute under consideration in that case was mandatory, but held that the meeting at which the warrants were issued was not an adjourned meeting within the meaning of the statute.

Again, we held in the Interínela Case that the superior court of the state of Washington, in the exercise of “its general jurisdiction, had the authority to determine whether the city became liable generally on contracts for local improvements where its officers had omitted, through neglect of duty or through irregularity of procedure, to make proper assessments for such improvements, and that having such jurisdiction a judgment holding the city to be liable, whether correct or erroneous, was conclusive against the city, and a bar to subsequent contests of the validity of a city warrant issued in payment of a judgment on the same ground. Upon the question whether the defendant in incurring its liability to the plaintiff’s assignors exceeded its constitutional debt limit, there is nothing in the present case to distinguish it from the Interínela Case, and it is unnecessary to add to what was there said.

[1] Questions not presented in the Interínela Case are based upon the assignments that the court erred in refusing to find that, at the time when the warrants were issued, the city authorities of the defendant had full knowledge of the decision of the Supreme Court of the state in German-American Savings Bank v. City of Spokane, 17 Wash. 315, 4-9 Pac. 542, 38 L. R. A. 259, that judgments were entered in all of said suits by the consent of the city officers, that no appeals were taken, and that the warrants were issued in pursuance of a special agreement between certain street grade warrant holders and the city council. The defendant had alleged in its answer that the judgments in the superior court were obtained by fraud, and that the warrants made in payment thereof were issued .clandestinely, in fraud of the citizens and taxpayers of said city, and in direct violation of the decision of the Supreme Court of the state. There is no evidence in the record to support any allegation of fraud. There is nothing to show that the judgments were taken by consent. The fact that eight cases were, all tried in one day is not sufficient in itself to create even a suspicion that the plaintiff’s claims were not contested. Nor is it an indication of consent or fraud that, after the judgments were taken, and before the time for appealing expired, the city council were advised by an *36attorney whom they consulted that they had a good defense to said actions, and could defeat all of the same on appeal, and yet no appeal was taken. There is nothing in the -evidence .to render applicable to the case the decision in Kane & Co. v. Ind. Dist. of Rock Rapids, 82 Iowa, 5, 47 N. W. 1076, cited by the defendant. In that case, in an action which was brought upon a judgment obtained against a school district, it appeared that the directors purposely and intentionally failed to appear and defend, and allowed judgment to be entered by default. The court, in view of the evidence, said:

“In our opinion, the evidence in this case shows that both the parties to that action intended that the plaintiff should recover judgment.”

It is contended that the findings of fact are .insufficient to show that the plaintiff is entitled to a judgment, in that they fail ,to show the condition of the indebtedness fund within tire rule .of this court in First Nat. Bank of Central City v. City of Port Townsend, 184 Fed. 574, 106 C. C. A. 554, and the decision of the state court in State ex rel. American Freehold-Land Mortgage Co. v. Mutty, 39 Wash. 624, 82 Pac. 118, and that the court below found only that certain levies had been made for the indebtedness fund prior to-1908, and that no levy had been made since that year. ■ The act of 1897 (chapter 84, Session Laws of Washington of that year) creates, in cities of the class of Port Townsend, a current expense fund and an indebtedness fund, and requires the city to levy annually a property tax, not to- exceed 10 mills, for the current expense fund, and a tax not to exceed 6 mills for the payment of indebtedness, and that in making the levy, consideration shall be taken of all outstanding warrant certificates, and all other obligation and indebtedness of the city, with interest thereon, for tire payment of which no provision is otherwise made by law, and it provides that all moneys collected on and after February 1, 1898, from taxes of 1896 and previous years, and the penalties and interest, shall be paid into the indebtedness fund. The findings of-the court and the stipulations of fact show the disposition of all taxes under the law of 1897. They show, moreover, that the aggregate of the levies from 1898 to 1908, inclusive, was on the average less than 1.2 mills per annum, and it is stipulated that the only remaining asset of the indebtedness fund is the sum of $527.07, which “now stands on the treasurer’s books.” There may perhaps be added to the asset so stated the right to demand the return to the indebtedness fund of $3,797.60 transferred from that fund to the sinking fund and the current expense fund1 in the years 1898, 1909, and 1910, by order of the city council. As to the omission of a finding concerning the disposition of funds possibly collected since 1905 from the delinquent tax rolls of the years 1891 to 1897, inclusive, it is sufficient to point to the decisions of the state court holding that a presumption of payment of a debt through lapse of time applies-to tax obligations. Graves v. Stone, 76 Wash. 88, 135 Pac. 810, Ann. Cas. 1915D, 182; Seymour v. Ellensburg, 81 Wash. 365, 142 Pac. 875.

[2] In answer to the contention that the complaint is defective, in that it fails to allege that a demand was made on the city council for *37a levy for the indebtedness fund, it is. sufficient to say that the allegations of the complaint show that such a demand would have been vain and useless. 26 Cyc. 330; United States v. Auditors of Town of Brooklyn (C. C.) 8 Fed. 473. In United States v. Saunders, 124 Fed. 124, 59 C. C. A. 394, it was held that no such demand is necessary before instituting proceedings for mandamus, where the statute imposes upon the municipal officers the duty to levy it, or where that duty under the law is plain, or where it is manifest that such a demand would be an idle ceremony; and in State v. Byrne, 32 Wash. 264, 73 Pac. 394, it was held that, where county commissioners had refused to levy a special tax to pay school bonds, and the law imposed on such commissioners the imperative duty of levying the tax sought, a demand on the commissioners to levy such tax by the owner of the bonds was not a condition precedent to his right to maintain mandamus to compel such levy.

[3] Also without merit is the contention that the action is barred by the statute of limitations. The defendant admits that in the state of Washington an action on a municipal warrant is not barred until six years after notice has been given that there is money in the treasury to pay it, but contends that the present action is barred for the reason that it was not begun until 1910, whereas the plaintiff might have brought it more than six years earlier, and cites Quaker City National Bank v. Tacoma, 27 Wash. 259, 67 Pac. 710. In that case the court held that the payment of warrants drawn on a special fund, which had been issued subsequent in time to the plaintiff’s warrant on that fund, is such a misappropriation of moneys of the fund as to render the city liable, not upon contract, but upon tort, and that such an action must be commenced within three years after the cause of action .accrues. That decision lias nothing to do with the present case. Here the action is upon contract. The plaintiff’s*right to bring an action on the warrants had confessedly not been barred by the statute, and although the plaintiff might have commenced its action sooner than it did, it was not compelled to do so, and it seems to have delayed action, relying on its hope that the city would recognize and fulfill its duty, a duty which was expressly imposed upon it by statute. There is no enactment of the state of Washington applying the statutes of limitation directly to mandamus proceedings. In such a case:

“It is common to apply thorn by analogy, and, while it is difficult to lay down any fixed rule as to the time when the writ will be barred, it may bo said in a general way that it must bo brought within tile period fixed for that particular form of civil action or proceeding which may be brought to enforce the right which is the subject of tlio writ.” 26 Cyc. 395; Berkey v. Board of Commissioners, 48 Colo. 104, 110 Pac. 197, 20 Ann. Cas. 1109: Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646; Chicago, K. & W. R. Co. v. Com’rs of Chase County, 49 Kan. 399, 30 Pac. 456; Chinn v. Trustees, 32 Ohio St. 236; Duke v. Turner, 204 U. S. 623, 27 Sup. Ct. 316, 51 L. ltd. 652, 9 Ann. Cas. 842; Milster v. Spartanburg, 68 S. C. 26, 46 S. E. 539; Territory ex rel. Tanner v. Potts, 3 Mont. 365.

We find no error. The judgment is affirmed.