ACTION.

7. LIMITATION OF ACTIONS (§ 65*)-COMPUTA- Colorado. The State Treasurer indorsed on TION OF INTEREST-ACCRUAL OF CAUSE OF each bond so presented a statement to the effect that Pueblo county had never deposited any money there to pay either the interest or principal of the bonds, or the interest or principal of any bond of the issue of which these bonds were a part. Nor had he ever been directed by the board of commissioners of Pueblo county, or authorized, to pay any of the bonds of that issue or the interest thereon.

Where payment of county railroad aid bonds is provided for by statute in a special way, and out of a particular fund, with the affirmative duty upon a defendant to provide that fund, as by the levy of a special tax, the county cannot set up limitations without first showing that it has complied with the terms of the statute, and is itself within the law.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 261, 345-350; Dec. Dig. § 65.*]

8. COUNTIES (§ 187*)-RAILROAD AID BONDSINTEREST.

The office of the Pueblo & Salt Lake Railway Company was long since discontinued in Pueblo, and in February, 1908, the bonds with the coupons attached, as last above in

That county railroad aid bonds, due in 30 years, gave the county the option to pay at the expiration of 10 years, does not affect the right of a holder four years after the expira-dicated, were presented to the county treastion of the 30-year period to collect his continuing interest, where no notice of the election of the county to exercise its option was brought

home to the holder of the bonds.

[Ed. Note.-For other cases, see Counties, Dec. Dig. § 187.*]

urer of Pueblo county for payment, and payment refused, because there were no funds in the county treasury to pay either the principal or interest thereof. On April 30, 1908, the defendant having failed to take any ac

9. EXECUTORS AND Administrators (§ 448*)—tion looking to a compliance with the demand ACTIONS-PLEADING CAPACITY TO SUE.

In an action by an administrator de bonis non, where duly authenticated copies of his official bond and letters testamentary were filed with the clerk of the court in compliance with Mills' Ann. St. Rev. Supp. 88 4733, 4734, the proper practice being to incorporate copies of those documents in the petition itself, which was not done, he should be allowed to amend in this particular.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 448.*]

made, this suit was brought for a peremptory writ of mandamus directed to the board of commissioners of Pueblo county, requiring it to make a levy upon the taxable property of the county, sufficient in amount to dis charge this debt, in accordance with the pro visions of an act entitled: "An act relating to railroads, wagon roads and mining companies, subscription to stock, issue bonds, taxes to pay interest and principal by counties, cities and towns, and for other purposes," passed by the General Assembly of the Application by Charles H. Berkey, admin- territory of Colorado, and approved by the istrator de bonis non, with the will annexed, Governor of said territory January 10, 1868, of the estate of Isaac Phelps, for mandamus under which act said bonds were issued; and to the Board of County Commissioners of the also pursuant to and in compliance with an County of Pueblo. From a judgment dis-fact of the General Assembly of Colorado, enmissing the action, plaintiff brings error. versed and remanded.

Error to District Court, Pueblo County; C. S. Essex, Judge.

Re

titled: "An act relating to bonds and interest thereon heretofore issued by the counties. cities, and towns," approved March 9, 1877 (Gen. Laws 1877, §§ 103-110) relating to this and like indebtedness.

On October 6, 1874, Pueblo county issued bonds in aid of the Pueblo & Salt Lake Railway Company, for $350,000, and received in exchange a like amount in stock of the Rail- For return and answer to the petition deway Company. The bonds matured 30 years fendant's claim is in substance and effect: after date. They were redeemable, at the That the complaint does not state facts sufpleasure of the county, within that period, ficient to state a cause of action; that plainat the office of the Railway Company in the tiff, as appears from his complaint, has no lecity of Pueblo. Of this bond issue plaintiff gal capacity to sue, being an administrator below, plaintiff in error here, owns $2,000, de bonis non with the will annexed of the which are, with continuing interest, unpaid. estate of Isaac Phelps, deceased, under letThe entire balance, $348,000, of the issue has ters of administration out of the probate been liquidated. In January, 1908, both writ- court of Kent county, Mich., but fails to ten and oral demand was made upon the show that he has been appointed or authordefendant, the board of commissioners of ized by any court, having jurisdiction within Pueblo county, defendant in error, for pay- the state of Colorado, to act as such adminisment of these bonds and interest, or for a trator here; bar of both the three and six levy upon the taxable property of Pueblo year statutes of limitation; laches, in that county, sufficient in amount for that purpose. plaintiff has failed and neglected, for an unAt the same time the bonds, with attached reasonable period of time, to commence any interest coupons, from May 1, 1878, to Octo-action or proceeding for protection to, or enber 6, 1904, were presented for payment. In forcement of, his alleged cause of action; November, 1907, demand for payment, accom- that no interest has been paid upon said panied by the bonds and interest coupons as bonds or coupons since May 1, 1878; that above, was made on the State Treasurer of plaintiff has heretofore made no demand for

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

First. That the petition is insufficient, in that it shows upon its face that the defendant board was without power to make the levy as demanded, because the levy for 1908 had already been made, and this suit was brought before that for 1908 was made;

Second. That plaintiff is without legal capacity to sue;

Third. That the three-year statute of limitation is a bar to the action by mandamus; and,

Fourth. That plaintiff has been guilty of such laches, in failing to present and urge payment of his claim, that he ought not now to be permitted to recover thereon.

payment, and has commenced no action to compel the levy of a tax to pay same; and, that, at the time of making the demand for the special tax levy, the annual tax levy for the year 1908 had been made and certified, and no further taxes on any account could be levied or assessed until the last quarter of the year 1908; this suit having been begun meanwhile, it was beyond the power of the board to comply with the demand for a special levy. Issue is joined on certain allegations of the complaint, and other defenses are pleaded, but the foregoing are the main ones, and are those covered in oral argument. In the court below plaintiff filed a general demurrer to each separate defense from two to six inclusive, and a motion to strike out practically all of the matter contained in the seventh and eighth defenses, except its denials. At the conclusion of argument on the demurrer and motion, the court dismissed the action, on the ground that it was with-power to make such levy, because levies under out jurisdiction in such a proceeding to determine the disputed rights of the parties, and declined to pass upon either the motion to strike or the demurrer. Plaintiff brings the case here on error to review the judgment of dismissal. Reversed and remanded.

McCorkle & McCorkle, for plaintiff in error. Alva B. Adams, for defendant in error.

BAILEY, J. (after stating the facts as above). Under the pleadings there is practically no disputed fact question. The controversy fairly presents only matters of law, including the question of the propriety of the remedy through which relief is sought.

Counsel for defendant, at the oral argument, very properly suggested that he would not argue that mandamus is not the remedy, in view of the Colorado decisions directly in point on that proposition, but would seek rather to sustain the lower court in its judgment of dismissal on other grounds.

The bonds in question were issued under a special territorial act approved January 10, 1868, by the terms of which it was made the affirmative duty of the board of county commissioners to levy and assess a special tax annually, upon the taxable property of the county, in amount sufficient to pay accruing interest, and eventually the principal. The statute is positive and mandatory. The method therein provided for payment is exclusive. No action for a money judgment on the bonds would lie. These bonds can be paid only through a levy of a special tax by the county commissioners for that purpose. If that body neglect and refuse to make such levy, mandamus to compel the same is the sole remedy. This has been ruled by this court, in a case precisely in point, Board of County Commissioners v. Sims, 31 Colo. 483, 74 Pac. 457, and it is idle to discuss or consider that question further.

The demand for payment of the bonds and interest was made in January, 1908, after they had matured, and the demand for the special tax levy to provide for such payment was made in March next thereafter. It is said by defendant that it was beyond its the statute can only be made in the last quarter of the fiscal year. When the demand came the levy for 1908 had already been made. No further levy by the board was competent until October following. This suit was instituted meanwhile, on April 30th, therefore it was impossible for the commissioners to lawfully make the levy; hence no cause of action is stated.

Section 5760, Rev. St. 1908, upon which defendant relies, is as follows:

"On the first Monday in November in each year, the board of county commissioners shall by an order to be entered of record among their proceedings, levy the requisite tax for the year, for school and other county purposes as required by law, and the same may be levied at any time prior to the first Monday of November, if the statement of the rate of tax to be levied for state purposes has been received from the Auditor. If, for any cause, the commissioners shall not be able to levy such taxes on or before the first Monday of November, in any year, they may make such levy at any time."

This provision has no application to the levy to pay these bonds. It is limited by its very terms to the levy of taxes for general county purposes. By the terms of the railway aid bond act itself, under which the bonds in question issued, it is provided that the tax so levied shall be collected as are other taxes, but there is no limitation as to when the levy shall be made. The only limitation is that these taxes shall be collected as other taxes are. In 1877 the act of 1868 was substantially re-enacted, and precisely so in the matter of the levy and collection of taxes to pay these bonds. Further, there was no general provision then in our laws limiting the time of levy, but on the contrary this provision was then in force, and yet is, being section 1204 of Rev. St. 1908, as fol

Counsel argues for an affirmance of the lows:

each county shall have power at any meet- ing been no refusal, the board abstaining ing:

*

"4th. To apportion and order the levying of taxes as provided by law, and to contract loans in the name and for the benefit of the county, for the purpose of erecting necessary public buildings, making or repairing public roads or bridges, when such loans have been authorized by a vote of the legal voters of the county, and for the payment of the debts of the county, contracted in accordance with law, prior to the first day of July, A. D. 1876."

from specifically doing so, an action would then be premature. Thus a complainant with a just cause, his remedy by mandamus being exclusive, might, upon trifling pretexts, be forever barred of his right; it being for ever and ever either too early, or else too late, for the board to comply with the demand. The law does not contemplate such a possibility. Neither will it be tolerated. To so hold, and thus allow and approve a premeditated and planned evasion, would be a mockery of justice. Had defendant, by answer and return to the writ, said that it was its purpose to make the levy at the earliest time that it could lawfully do so, then there would be force in its position, especially if the statute were as contended for by it. But it is manifest, from the pleadings, that there is no such purpose; on the contrary, from the answer and return, it is plain that the defendant does not intend to pay, or make provision for the payment of, this claim, unless compelled to do so by judicial order and decree.

This is the section of the statute which has reference to debts like the one in suit. It is a special provision exactly in point and covering this precise situation. It, by express terms, gives the board of county commissioners power at any time, to apportion and order the levying of taxes as provided by law, for the payment of the debts of the county contracted in accordance with law prior to July, A. D. 1876. This debt is strictly within this statute, and the commissioners not only had the power to levy the tax at the time the demand was made, but it was their duty to do so. They had no discretion in the matter. Both the act of 1868 and of 1877, looking to the payment of the interest and principal of the bond issue, a portion of which is here involved, provide in effect, and make it the affirmative duty of the board to duly levy and assess a special tax annually, upon the taxable property of the county, in amount sufficient to pay the interested to compel performance of such duty." 26 coupons, when and where due, upon all such bonds; and after 10 years from the date of the issuance of said bonds the county shall provide by taxation to pay at least 5 per centum of the principal of such bonds annually thereafter, and all interest thereon due, until the full amount of such bonds have been paid, purchased, or redeemed. A conclusive answer to this contention is therefore found in the statutes themselves.

"Where a statute imposes upon a city, county, levee district, or other municipality, or upon a particular officer, board, or tribunal, a clear legal duty to levy a special tax to pay judgments, bonds, warrants, or other allowed or fixed indebtedness, or interest thereon, or to provide a sinking fund for payment at a future day, mandamus will lie on the relation of a person interest

Cyc. 325, and authorities there cited.

"A comptroller general was required each year, on or before the 15th day of November, to notify the county auditors what per centum was to be levied on property as a tax to pay the interest on the state bonds then due, in arrear, and to become due during the coming year. The comptroller gave such notice, omitting from his calculation certain state bonds. It was objected that the application was premature relative to the next year, and too late relative to the

Still, even if the statutes were otherwise, this contention is not sound. The petition states grounds for relief against the commis-year just passed, inasmuch as the county sioners to take effect at the earliest day upon which they could lawfully levy the tax. The contention is that the demand for a levy occurring in the spring of 1908, it was too late for the levy of 1907 and too early for that of 1908. A court has power to grant the writ requiring a future levy at the regular time fixed by law therefor, if the facts show that the petitioner has a cause of action, and the conduct of the defendant justifies the belief that it has no purpose to act at any time. Were the contrary true, the defendant board might ever contend, as it does now, that there has been no refusal, hence the action does not lie; and it might thus always insist either that an action was too late, as the levy had been already made, or too early for a future levy, as the time for that had not yet arrived, and there hav

auditor and the other county officers had acted on such notices, and the law did not authorize any subsequent notice. The court considered such conclusion to be a parody on justice. It considered that, giving the statute and rules of law a reasonable construction, a refusal by the respondent to perform his duty, even before November 15th, must be considered as equivalent tc a total want of performance for all remedial purposes, inasmuch as the 15th day of November was fixed, not as the day proper for the doing of the act, but as a period to mark the default of the respondent should it remain unperformed, and therefore as he might perform on a previous day, refusal on such day to perform altogether is evidence of a default as affecting the right of a party to a civil remedy. The court stated that,

Speaking to the question here under consideration, the Supreme Court of the state of Massachusetts had this to say:

if the respondent in his return had denied themselves are not barred, the interest couthe fact of refusal, or had alleged his will-pons, which are a mere incident to the main ingness to perform, such allegation, if un- debt, are not barred. The interest is prodisputed, would have ended the matter." vided for in the body of the bond, as a Merrill on Mandamus, p. 282. part and parcel of it, and is enforceable without reference to the attached coupons. The contract between plaintiff and defendant for interest is found in the bond itself. The coupon is but a convenience, serving the office of a receipt, for use when interest is paid. The interest runs with the principal of the bond and is only barred when it is barred. This precise point is determined in First National Bank v. Park, 37 Colo. 303, 86 Pac. 106. All the authorities, federal and state, are practically unanimous to this point, and further citation is unnecessary.

"Applications for writs of mandamus being addressed to the sound judicial discretion of the court, the circumstances of each case must be considered in determining whether a writ of mandamus shall be granted; and the court will not grant the writ, unless satisfied that it is necessary to do so in order to secure the execution of the laws. But when the person or corporation, against whom the writ is demanded, has clearly Does the three-year limitation statute bar manifested a determination to disobey the the action of mandamus? We think not. laws, the court is not obliged to wait until This statute does not bar the bonds, either the evil is done before issuing the writ." as to principal or interest. Mandamus is, Attorney General v. Boston, 123 Mass. 460- as we have already seen, the only remedy 474. to compel payment. It logically follows

The Supreme Court of Texas, in a recent then that this statute does not bar the remcase, having under consideration a like ques-edy. To say otherwise would in effect pertion, said:

"Insistence is made that appellee is not entitled to a tax levy because as to the future, his action is premature, and, as to the past, it is too late to make a lawful levy. This claim demands careful scrutiny, since its effect, if sound, will be to destroy a solemn contractual obligation either 'on the upper or nether millstone,' as it would be an easy matter to fight off the execution of a mandate beyond the year. The writ of mandamus, being a command based on default of duty, cannot go to the future in advance of default; but there is no reason why it may not extend to the future in redress of a past default, and we hold that it may." City of Austin v. Cahill, 99 Tex. 172, 196, 88 S. W. 542, 89 S. W. 552.

It was held in effect by the Supreme Court of Washington that, after reasonable time, from a request to levy an assessment to pay public improvement warrants, the county commissioners may be compelled to act by mandamus, and relator is not postponed until commissioners have definitely refused to act. State ex rel. Seymour . Slater et al., 53 Wash. 608, 102 Pac. 651.

The writ here is sought to compel the levy of a special tax to pay a debt, which ought, as matter of law, long since to have been provided for by annual levy and collection. Plaintiff seeks simply to compel the board to discharge a duty, concerning which it has been for years in default.

On the subject of limitations. Neither the bonds themselves nor the interest coupons are barred. By their express terms the bonds did not mature until October 6, 1904, and suit was begun about 3 years thereafter. The six-year statute is the one by which the bonds might be barred, and clear

mit that to be accomplished indirectly which may not be done directly. The limitation applicable to the bonds is applicable to the remedy. The statute not having run against the claim itself, the exclusive remedy by which it may be enforced ought not to be barred.

"The better-considered doctrine, and that which is supported by the clear weight of authority, is that the statute of limitations which governs the subject-matter or right in question, and which would bar an ordinary action at law for the enforcement of such right, applies also to proceedings in mandamus, if it is enforced." High's Extraordinary Legal Remedies (3d Ed.) 38, and cases cited.

In 26 Cyc. p. 395, this is said, which is directly in line with the views above expressed:

"In states wherein the statutes of limitations do not apply directly to mandamus proceedings it is common to apply them 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 be said in a general way that it must be brought within the period fixed for that particular form of civil action or proceeding which may be brought to enforce the right which is the subject of the writ; and on the other hand, that mandamus may be instituted at any time within that period."

With us the statute of, limitation does not apply directly to mandamus, and the foregoing authorities are therefore in point.

Beside, on principle and authority, where payment is provided for in a special way, and out of a particular fund, with the affirmative duty upon a defendant to provide that fund, and make application of it as required

statute of limitation, until he first shows the bonds, in addition, and have the whole that he has complied with the terms of the ready for payment against the maturity of statute, and is himself within the law. This the bonds and interest. It is true the option principle is recognized in all of the cases, was with the county to pay at the expiraand upon it the decisions are in harmony. tion of 10 years, but in order to exercise that "There is a general rule that, when pay-option personal notice must have been brought ment is provided for out of a particular home to the bondholder of its election so to fund, or in a particular way, the debtor can not plead the statute of limitation without first showing that the particular fund has been provided, or that the particular method prescribed by statute has been complied with. * The bonds and coupons herein sued upon were, by the statute authorizing their issuance, payable out of a particular fund, which was never provided for by Alturas county." Robertson v. Blaine County, 90 Fed. 63, 70, 32 C. C. A. 512, 520, 47 L. R. A.