Le Clerg v. City of San Diego

THE COURT.

This is a second petition for a writ of

mandamus

wherein the same petitioners seek to compel the same respondents to issue warrants in satisfaction of judgments held by the petitioners against the City of San Diego. In the first proceeding the petitioners sought the issuance of warrants for the payment of said judgments in full or the levy of a tax to satisfy the same in full. It was determined therein that the city had the right to elect to proceed in accordance with the act of 1901 (Stats. 1901, p. 794), by levying a tax for at least one-tenth of the amounts of said judgments each year, and that it would not be presumed

[674]

that the city would refuse to levy a tax for that purpose for the'fiscal year 1933-1934, as provided in said act. The peremptory writ in the prior proceeding was therefore denied without prejudice.

(Le Clerg

v.

City of San Diego, ante,

p. 494 [24 Pac. (2d) 156].) After the opinion was filed in that proceeding, on July 13, 1933, the petitioners made a demand on the common council of the respondent city to levy a tax for the present fiscal year sufficient to pay said judgments in full, or to levy a tax this year sufficient to pay two-thirds of said amounts and to provide for a tax for the remaining one-tliird in the fiscal year 1934-1935, or to levy a tax for one-third for the present fiscal year and one-third each for the two years following, or to levy a tax for two-tenths for the fiscal year 1933-1934 and the remainder in eight equal annual installments. The demand was refused.

The present proceeding was commenced on July 22, 1933. A hearing on the return to the alternative writ was had on August 8th and the matter was then submitted. On the latter date a petition for a rehearing and modification of the judgment in the former proceeding was pending and undetermined. With full appreciation of the fact that if the judgment in the former proceeding should become final most of the questions involved in the present proceeding would become settled and the adjudication be binding upon the parties hereto, the petition for a rehearing and modification of said judgment was denied.