Parties in mandamus proceedings; full relief. 924. (Tex. 1896.) "The defendants, J. C. Hart, tax collector, and J. E. Cooke, tax assessor, appeared in the court below, and filed a demurrer to the plaintiff's petition on the ground that the same did not show any legal duty resting on the defendants to do anything which they had failed to do, and did not show any demand on them to do anything which they refused to do." Held, "If the plaintiffs were entitled to a mandamus to compel the levy and collection of taxes, they were certainly entitled to one which would set all the machinery necessary for the levy, assessment, and collection of taxes in motion." Marion County et al. v. Coler et al., 21 C. C. A. 392, 75 Fed. 352. Demand for levy of tax, to what offi cers addressed. 925. (Ky. 1898.) The demand in this case was: "To the Fiscal Court of Muhlenberg county consisting of the judge of the Muhlenberg County Court, and the justices of the peace in and for said county, in Fiscal Court assembled, and to the judge of the Muhlenberg County Court." It was contended that the demand should have been separately made on the County Court as composed of county judge and justices, and on the court as composed of the county judge alone. "We think this demand was sufficient under the statute, and that it clearly informed the court, composed of the county judge and justices, as well as the court when presided over by the county judge alone, that the demand was made on both of them, and separately. It could not have been understood otherwise by a person of ordinary intelligence. The fact that the demand on the court when the county judge alone was presiding, as well as on the court when composed of the county judge and the justices, was contained in the same writing, is not material." Fleming v. Trowsdale, 29 C. C. A. 106, 85 Fed. 189. Full relief against all officers. 926. (S. Car. 1901.) Following the decision in Labette County Comrs. v. United States, 112 U. S. 217, 5 Sup. Ct. Rep. 108, 28 L. Ed. 698, it was held that, in a mandamus proceeding to enforce the levy and collection of a tax to pay a judgment against a county, one writ of mandamus against all officers concerned in the separate but co-operative steps for levying and collecting a tax is the proper and effective remedy to enforce its collection. Held also, that the writ was properly directed not only to existing officers, but also to their successors. Hicks, County Auditor, et al., v. Cleveland, 106 Fed. 459. Parties in mandamus. 927. (La. 1901. In a mandamus proceeding in a Federal Court based upon a judgment rendered against the city of New Orleans, in the same court, to compel the board of liquidation of the city to pay or fund the judgment as provided by law, the court has jurisdiction notwithstanding such board was not a party to the original suit, as it was charged with the duty of liquidating the judgment. Board of Liquidation v. United States, 108 Fed. 689, 47 C. C. A. 587. Officers required to perform successive acts in the levy and collection of taxes properly joined as defendants in mandamus. 928. (Ky. 1904.) In mandamus, to enforce the levy and collection of a tax to pay a judgment rendered against a county on its bonds, there were joined as defendants the county judge, whose duty it was to levy the taxes and the sheriff who was charged by law with giving a bond and collecting the taxes, it was contended that as to the sheriff the action was premature. Held: "But it was distinctly decided otherwise by the Supreme Court in Labette County v. Moulton, 112 U. S. 217, 5 Sup. Ct. 108, 28 L. Ed. 698, where it was held proper to join in the writ those officers who were charged by law with the performance of successive duties required in the levying and collection of the tax. As soon as the levy has been made and tendered to him for collection, the sheriff's duty at once becomes impera tive to proceed to give the bond, to qualify himself, and to collect the tax. That was a duty he took upon himself when he assumed his office." Guthrie v. Sparks, 65 C. C. A. 427, 131 Fed. 443. CHAPTER XIII. DEFENSES TO MUNICIPAL BONDS. The subject of defenses to municipal bonds includes the whole body of the law relating to such securities. When municipal bonds are issued in pursuance of legal authority, for an authorized public purpose, and all legal requirements and conditions exist or have been performed and complied with, no defense to their enforcement can be successfully maintained against any owner of them. Absence of legal authority for the issuance of such obligations at the time of their issuance is always available, as a defense, except in case of legislative ratification; but there can be no such ratification if any constitutional provision would be thereby violated. Fraud or other official misconduct or delinquency in the issuance of the bonds, under an existing legal authority, or an excessive issue, or misapplication of the bonds, or of their proceeds to an illegal or unauthorized purpose, or improper execution of the bonds, or other irregularities or omissions in the statutory requirements, may or may not be available as defenses, depending upon the facts and circumstances of the cases as they arise, and the application of the principles and rules of law discussed in, and illustrated by, the cases found and cited in the several chapters of this work. Special consideration should be given in such cases to the rules of law relating to the rights of bona fide holders of the securities, and to the effect of recitals, or other matters contained in the bonds, affirming their legality, or disclosing, or putting a purchaser upon inquiry concerning, some illegality. As the subject of defenses in such cases, as before suggested, includes almost all branches of the law of municipal bonds, we shall forego any further discussion here of the rules of law relating to such defenses; and, to avoid the necessity of here repeating and recopying the cases bearing on this branch of the subject, all of which have been appropriately placed in other chapters, such cases are here cited by carefully arranged cross-references following these suggestions. Any one approaching the subject with some idea of a defense or defenses, though possibly not clearly defined, will readily find, in such cross-references, and in the index and table of contents, references to the appropriate authorities. CROSS-REFERENCES. 1. Defenses based upon absence of au- 11. Repeals of or changes in enabling thority to issue bonds.- Chap statutes and charter powers; dissolution, consolidation, etc., rights how affected.- Chapter X; Chapter XI, Part B; Chapter XII, Part C. Constitutional grounds; defenses based upon.- Chapter XI. Limitation of actions, defenses based upon.- Chapter XII, Part A. 4. Corporations illegally or irregu Part D. when not available against bona fide 15. When defenses are 5. Defenses based upon irregular or wrongful exercise of existing legal authority.- Chapter IV, 16. Part C. 6. How affected by subsequent ratifying acts of officers or legislature.- Chapter VIII, Parts A 17. and B. 7. Defenses based upon improper execution of bonds or unauthorized delivery. Chapter VI. 8. Defenses based upon failure to comply with the law in enact- 18. ing and publishing ordinances, resolutions, etc.- Chapter V, Parts A and B. 9. Records of proceedings and other public records; defenses based 19. upon absence of, or defects in, or illegalities or irregularities disclosed by. Chapter V, Parts 20. B and C. 10. Unauthorized or prohibited pur- 21. pose, defenses to bonds issued for- Chapter III, Part B.; Chapter IV, Part C. available against bona fide holders.Chapter VII, Part E. Res adjudicata and lis pendens; defenses based upon.- Chapter XVII; Chapter XII, Part C. Taxes and assessments; defenses based upon absence of, or limitations upon, authority to levy and collect and irregularities in making levies.- Chapter IX; Chapter XII, Part C. Action for money had and received will sometimes lie when bonds are invalid.- For defenses to such action, see Chapter XII, Part A. Actions by bondholders for equi table relief, defenses to.- Chapter XII, Part C. Mandamus proceedings, defenses to. Chapter XII, Part C. Decisions of State courts, defenses based upon, in suits in Federal Courts. Chapter XVI, Part B. CHAPTER XIV. TAXPAYERS' REMEDIES FOR THE PREVENTION OF THE WRONGFUL ISSUANCE OF MUNICIPAL BONDS. In a large number of the cases in which the collection of negotiable municipal bonds has been contested, it has been urged that, by the enforcement of the obligations, a fraud or wrong would have been perpetrated upon the taxpayers, that the securities were issued by the officers of the body in violation of law. It is however true that in many of such cases the alleged fraud or wrong has been committed with the acquiescence of all, or a considerable number of such taxpayers, and in some cases at their express request, or with their unqualified assent. It is a well-known fact that the people of a community will often more generally and more enthusiastically support by their votes and influence the raising of large, amounts of money by the issuing of bonds for an unauthorized, or even an expressly inhibited purpose, than for legal, and public purposes. The issuance of bonds to aid in the promotion of railroads, when not authorized, or of manufacturing establishments, or other private enterprises that it may be thought will largely contribute to the convenience, growth, business, and wealth of the community, are forceful illustrations. the The illegal purpose is frequently accomplished by issuing bonds ostensibly for a legal purpose, and by expending the proceeds, when received, for the intended illegal purpose. There have also beer instances in which the officers of the municipalitylegally authorized agents of the taxpayers-have been induced to so illegally issue bonds without the general co-operation of the people, but the instances are rare in which in such cases the officers have not been encouraged so to act by the co-operation of a portion of the voters or taxpayers. All of these alleged frauds or wrongs could have been avoided, prohibited, by the timely application of a dissenting taxpayer to the courts for an order enjoining the commission of the act. |