Thompson v. City of La Mesa

D. E. THOMPSON, Petitioner, v. CITY OF LA MESA (a Municipal Corporation) et al., Respondents.

COUNSEL

Harvey H. Atherton for Petitioner.

W. H. Jennings and Mitchell & Johnson for Respondents.

OPINION

Marks, J.

Petitioner has applied for a writ of mandate to compel respondents to pay available funds in its treasury into a bond redemption fund, with which to pay delinquent interest and principal on street improvement bonds, or, to levy a tax to raise sufficient money with which to pay delinquencies. An alternative writ of mandate was issued commanding respondents to pay $11,302.40 into such bond redemption fund, or, failing to have such funds available in the city treasury, to levy a tax to pay the delinquent principal and interest on the bonds. Respondents demurred to the petition and filed an answer.

The City of La Mesa is a city of the sixth class organized under the Municipal Corporation Act. The individual respondents are officers of the city.

In May, 1928, the city instituted proceedings under the Improvement Act of 1911 for the improvement of several of its streets. This resulted in the issuance of bonds to pay for the work under the Improvement Bond Act of 1915. Petitioner became the owner of a number of these bonds, on all of which the interest is in default and on some of which the principal. No question has been raised as to either the regularity of the street improvement proceedings or the issuance, sale and delivery of the bonds. It is stipulated that there is no available money in the city treasury to be transferred to the bond redemption fund.

[1] The issues in this proceeding have been definitely settled by the cases of American Co. v. City of Lakeport, 220 Cal. 548 [32 PaCal.2d 622], Union Safe Deposit Bank v. City of Menlo Park, 3 Cal. 2d 264 [43 PaCal.2d 811, 45 PaCal.2d 347], Southern California Roads Co. v. County of San Luis Obispo, 4 Cal. 2d 220 [48 PaCal.2d 34], Griffith Co. v. County of Los Angeles, 4 Cal. 2d 222 [48 PaCal.2d 35], [9 Cal. App. 2d 544] and Sawyer v. County of San Luis Obispo, 4 Cal. 2d 776 [48 PaCal.2d 35].

Various parcels of private property have been sold in the City of La Mesa for tax delinquencies which included levies for the principal and interest due on the improvement bonds. The petition alleges the total amount of the levies to pay the principal and interest on the improvement bonds for which property has been sold to the City of La Mesa at the sum of $25,184.69, or more than $13,882.29 more than is alleged to be delinquent on improvement bonds owned by petitioner.

In the case of the Union Safe Deposit Bank v. City of Menlo Park, 3 Cal. 2d 264 [43 PaCal.2d 811, 45 PaCal.2d 347], the Supreme Court said: "We are, therefore, of the opinion that a mandatory duty rests upon the respondents to levy and collect a tax to meet said delinquent assessments, such tax, however, being limited to 10 cents on each $100 of assessable property as provided in section 16a of said act (as amended in 1921, Stats. 1921, pp. 224, 230), and that said levy be made and said tax levied on or before the time fixed by law for the next general tax levy for municipal and county purposes."

It follows that petitioner is entitled to have a peremptory writ of mandate issued requiring respondents to levy and collect a tax to meet the delinquent assessments, the tax to be in an amount and levied and collected at the time and in the manner specified in the foregoing quotation from the case of Union Safe Deposit Bank v. City of Menlo Park, supra, the amount to be collected not to exceed the total principal and interest due and unpaid on petitioner's bonds on June 13, 1935, the date of the filing of the petition herein.

The demurrer is overruled, and it is ordered that a peremptory writ of mandate issue in accordance with the views herein expressed.

Barnard, P. J., and Jennings, J., concurred.