Opinion
March 7, 1906.
Andrew J. Nellis and M.D. Murray, for the appellant.
William A. MacDonald, for the respondent.
While the common council is directed by section 70 to make its estimate for city purposes on or before the first day of March, it is not required on that day to pass any resolution directing that the tax be levied upon the city. That resolution may be adopted at any time before the assessment roll is extended as required by section 77. That section directs that as soon as practicable after any tax shall have been ordered by the common council to be raised, the clerk, by the direction and under the supervision of the common council, shall extend it. The passing of the resolution March first directing the levy of the tax mentioned in the estimate, did not exhaust the power of the common council to direct the collection of any items other than those required to be stated in the estimate. A judgment recovered against the city is not required to be stated in the estimate, and, therefore, could be included in the tax levy at any time before the tax is extended. Section 74 provides that "All taxes assessed in said city in any one year shall, if practicable, be included in one assessment and collected under and by virtue of the same tax-warrant." This provision seems to imply that different items may be ordered at different times to be assessed, but that the orders shall be made before the tax is finally extended.
After the making of the estimate and the resolution of March first the common council passed no other resolution upon the subject of the tax, or its collection, until July tenth, when it ratified and confirmed the tax as extended and directed the warrant to issue to the chamberlain for the collection of the tax and thus effectually levied the tax. There seems to be no reason why the common council of the city should not have included this judgment in the amount to be raised by taxation that year. The judgment was due and the duty rested upon the city to pay it, and it was, therefore, the duty of the common council to provide for its payment in the approaching tax levy. The plain intent of the statute is that the city, after the rendition of a judgment, shall have a proper time in which to raise the money by taxation, it being assumed that it has no money on hand properly applicable to its payment, and that unless a stay is put upon the execution the city's property may be sold and costs incurred against it at a time when it is unable to pay the money. Those reasons do not apply here, for the city had ample time to include this judgment in the tax levy, and it was its duty so to do. Therefore, with reference to this judgment, the tax is not deemed to be levied until the common council was powerless to include it in the annual levy. Any other construction would work a hardship to a judgment creditor of the city. It is evident that this judgment, not being included in the tax levy, could not be realized from the tax of 1905, and it would be a technical construction of the statute to say that an execution could not issue on this judgment until every cent of the tax had been collected, for the collection of this tax could not affect the plaintiff nor aid the defendant. The tax is raised solely for other purposes, and the moving papers show that if it was fully paid there would be nothing available with which to pay the plaintiff's judgment. We may, therefore, treat the tax for city purposes as substantially collected before the execution was issued. The order setting aside the execution was, therefore, erroneously made, and is reversed, with costs.
All concurred.
Order reversed, with ten dollars costs and disbursements.