BRADFORD v. BOLTON

Mrs. Agnes Bradford filed a petition for writ of mandamus against the City of Commerce, a municipal corporation, and named persons as the mayor and council of the city. It was alleged: On August 4, 1955, the plaintiff recovered a judgment in the Superior Court of Jackson County against the city in the sum of $60,000, which judgment was affirmed on appeal. Execution issued, and Travelers Insurance Company paid into court $10,000 on the principal, with accrued interest thereon. On April 9, 1957, the plaintiff and her counsel appeared at a meeting of the mayor and council and demanded payment of the balance of her judgment. From time to time the plaintiff, through her counsel, sought to negotiate a settlement of her judgment, and at her instigation a meeting was called on May 20, 1958, and her demand for payment of the balance of her judgment was again made. The officers of the city considered and discussed the correctness of the judgment and debt and acknowledged its present existence, but asserted that they had no funds out of which the debt could be paid, and they therefore failed and refused to pay the balance of her judgment. At this meeting the plaintiff demanded that, if the debt could not be paid from the treasury of the city, a tax be levied and collected to pay the balance of her debt. The mayor and council refused to authorize the payment of her claim or to levy and collect a tax for its payment. On June 2, 1958, demand was made by a deputy sheriff for payment, and payment was refused. The execution was returned wholly unsatisfied, no property being found on which to levy the execution. The defendants' failure to pay the judgment, or to levy a tax for its payment, is an omission of a legal duty. The judgment having been affirmed by the highest court, it is a legal obligation of the defendants. Unless the Mayor and Council of the City of Commerce are required by judgment and decree of the court to pay her claim from the city treasury, or to levy and collect a tax for its payment, she will be without remedy. If the defendants have not sufficient funds with which to discharge her judgment, the plaintiff is entitled to have the city levy a tax on all the property within the corporate limits of the city sufficient to pay her judgment.

The prayers were that mandamus nisi issue requiring the mayor and council of the city to show cause why mandamus absolute should not issue; that the mandamus be made absolute, requiring the mayor and council to pay the claim of the plaintiff out of any money on hand in the bank, or which might thereafter be received; and if sufficient money be not on hand, that the mayor and council be required to levy and collect a tax sufficient to pay the debt due the plaintiff, with interest and cost; for process; and for other relief.

Mandamus nisi was duly issued. The defendants demurred to the petition on the grounds: that the petition failed to state a cause of action for the relief sought; it does not appear whether the limit of taxation authorized by law is being levied or some less amount, or whether an additional tax can be levied; it does not appear that the debt comes within the classes provided by the Constitution for which a tax may be levied and collected; it does not appear that the levy of the tax sought is an act which the law authorizes or requires, or that the plaintiff has a legal right to have the particular levy which she seeks; the plaintiff seeks to have the court direct and control the discretion of the officials in the discharge of their duties; the allegations are insufficient to show that a lawful tax may be levied and collected to pay the judgment held by the plaintiff, and the petition fails to disclose that the levy of such a tax is one which the law authorizes within the limits of the charter authority of the city; the petition fails to allege sufficient facts to show any authority or duty resting upon the defendants to levy the particular tax sought; it affirmatively appears that the defendants have not paid the claim because the city was without funds out of which the debt could be paid, the plaintiff was fully advised accordingly, and is not entitled to a judgment of mandamus absolute; it does not appear that the city has on hand sufficient funds out of which the claim of the plaintiff can be paid.

By amendment it was alleged that frequent demands have been made by the plaintiff's counsel that the defendants make provision to pay the balance of her judgment; these demands have been refused on the claim that the city has no funds from which the debt could be paid, and the city is without authority to impose a tax, in addition to those already being levied, to raise funds with which to pay the judgment. The plaintiff alleged on information and belief that large sums were received from property taxes, from the sale of lights, power, water, and gas, and she prayed that specific provision be made for funds of the city to be set up for the payment of her judgment.

The general demurrers to her petition as amended were sustained, and the exception is to this judgment.

HEAD, Justice.

The judgment of the plaintiff against the City of Commerce was affirmed by the Court of Appeals ( City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160), and as to that part of the judgment not paid by the insurance company, it is a valid, subsisting obligation of the city. The plaintiff's demands for payment having been refused by the city, she seeks to enforce the collection of her judgment by mandamus absolute.

In order to entitle one to the writ of mandamus, it must appear that the applicant has a clear legal right to have the particular act performed the doing of which he seeks to have enforced. Code § 64-101; Adkins v. Bennett, 138 Ga. 118 ( 74 S.E. 838); Ward v. Drennon, 201 Ga. 605 ( 40 S.E.2d 549); Pierce v. Rhodes, 208 Ga. 554, 555 ( 67 S.E.2d 771).

In the present case, the act which the plaintiff seeks to have performed is the payment of her judgment out of any moneys on hand, and if sufficient money be not on hand, that the mayor and council be required to levy a tax upon the property in the city sufficient to discharge her claim. The relief sought by the plaintiff in the present case conforms with that in Adams v. Town of Weston, 181 Ga. 503 ( 183 S.E. 69). In the Adams case, as in the present case, the trial judge sustained a general demurrer to the petition for mandamus absolute. On review this judgment was reversed in a full-bench decision. In the present case, as in the Adams case, the plaintiff seeks but one act, the payment of her judgment. The fact that she prays that it be paid from present funds of the city, if available, and if not available, from a tax to be levied on property within the limits of the city (as did the plaintiff in the Adams case), in no wise invalidates her right to the relief sought.

Counsel for the defendants have not cited any constitutional provision, and we know of none, that prohibits the payment of a valid obligation of the City of Commerce; nor have counsel cited any provision of the charter of the City of Commerce, or any other law, providing that the payment of valid obligations of the city rests solely within the discretion vested in the governing authority of the city. The act incorporating the City of Commerce (Ga. L. 1909, pp. 655-709) provides, in § 76, that "for the purpose of raising a revenue sufficient to meet all expenses and obligations of said city of Commerce," the mayor and council are authorized to levy and collect an ad valorem tax on all real and personal property within the corporate limits of the city "not exceeding one per cent. thereon." In their supplemental brief, counsel for the defendants state: "This court is confronted with a single proposition: Do the defendants in this case have power to levy a tax in addition to that already levied for the payment of this judgment, and are they under a duty so to do?" Under the charter provision of the City of Commerce, the city is charged with paying every valid obligation of the city within its power to tax. There is no limitation on the power of the city to levy a tax of 1% on all property within the corporate limits of the city, by Code § 92-4101, which purports to limit and restrict the powers of taxation by municipal corporations in an amount less than that authorized by the charter of the City of Commerce. In this connection, see City of Cochran v. Lanfair, 139 Ga. 249 ( 77 S.E. 95); City of Waycross v. Tomberlin, 146 Ga. 504 (4) ( 91 S.E. 560).

In Dennington v. Mayor c. of Roberta, 130 Ga. 494, 501 ( 61 S.E. 20), which was an action for mandamus for the levying of a tax for the payment of certain obligations of the Town of Roberta, it was said by this court: "It may be conceded that if this tax be levied and collected, and the proceeds thereof appropriated to the satisfaction of the plaintiff's demand, other creditors of the school board, if there be such, might be remediless in the collection of their claims. Our reply to this contention is, that it is not even intimated in the petition that there are other debts contracted by the school board. We therefore can not indulge the presumption that such is the case. If, in fact, there are other debts, it would be a matter of defense that the plaintiff would not be entitled to have the money turned over to him. Tuck v. Moss Mfg. Co., 127 Ga. 729 (4) ( 56 S.E. 1001). This would not relate to the remedy for the collection of the tax, but would relate only to its distribution." See also Jones v. Bank of Cumming, 131 Ga. 614 ( 63 S.E. 36); Mayor c. of Jeffersonville v. Taylor Iron Works c. Co., 154 Ga. 434 ( 114 S.E. 579); City of Abbeville v. Eureka Fire Hose Mfg. Co., 177 Ga. 204 ( 170 S.E. 23); Board of Education of Candler County v. Southern Michigan Nat. Bank, 184 Ga. 641 ( 192 S.E. 382).

At the time this action was filed, the act approved February 27, 1959 (Ga. L. 1959, pp. 88, 89), providing for the inspection of all public records of State, county, and municipal authorities, had not been enacted. Matters of defense to the plaintiff's action should be set up and urged in a proper answer. It is not a valid ground of demurrer to her action that she has not negatived possible defenses of the city, or set forth facts peculiarly within the knowledge of the defendants.

Judgment reversed. All the Justices concur.