
    THE STATE, EX REL. THE RAHWAY SAVINGS INSTITUTION, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF RAHWAY.
    1. Mandamus will lie against the mayor and common council of the city of Rahway, compelling them to raise and collect by tax, as other city taxes are levied and collected, the deficiency as reported to the said common council by the board of water commissioners of said city, on application of a water bond-holder to whom interest on bonds is due.
    2. The provisions of the act of 1868, by means of which power was given to construct water-works in the city of Rahway, stated.
    On motion for mandamus.
    
    Argued at November Term, 1886,
    before Justices Reed, Magie and Parker.
    For the relator, B. A. Vail.
    
    For the city, Garret Berry.
    
   The opinion of the court was delivered by

Parker, J.

In the year 1868 an act was passed giving power to the city of Rahway to construct water-works. It authorized issuing, in the name of the city, bonds, to be called "Rahway city water bonds.” By the eighteenth section of the act it was provided that in each year the water commissioners should make an estimate of the receipts and expenditures, including interest on the bonds which should be issued, for the ensuing year, and report to the common council the deficiency which existed, if any, and the common council were required thereupon to raise such deficiency by a tax as other city taxes are raised and collected. The law further directed that the assessors should add to-the amount reported three per cent., as a reasonable sum for losses in taxes which might not be paid. Water bonds to the amount of $181,000 were issued under the act.

The relators became the owners of all said bonds. The principal of said bonds is not yet due, but on the 1st day of July, 1886, there was due to the relators, for unpaid interest on said bonds, the sum of $67,853.10.

On the 10th day of May, 1886, the water board made its annual estimate of the receipts and expenditures, including interest on the bonds, for the ensuing year, showing an estimated deficiency of $5140. A copy of this estimate and probable deficiency, signed by the proper officers, was, on the same day, served on the common council. After the receipt of said estimate, to wit, on June 29th, 1886, the common council passed an ordinance respecting taxes for the year 1886, ordering the amounts to be assessed and raised by tax within the city of Rahway, specifying the several amounts to be raised for different purposes. The sum of $5140, reported as aforesaid by the water board, was not inserted in the tax levy.

The relators now apply for a mandamus to compel the common council to order to be raised and to collect by tax, as other city taxes are levied and collected for the year 1886, the said sum of $5140, the deficiency aforesaid, as reported to the common council by the water board, for the year ending the first Tuesday of May, 1886.

In the absence of an application of the water board for the writ, the relators have the right to apply. They are the owners of the bonds and entitled to the interest, and therefore specially interested in the subject matter. High on Ex. Rem., § 431. The act provides that in case the revenue in any one year shall not be sufficient to pay the interest on the bonds and all necessary expenses of the work, an amount equal to such deficiency shall be provided by the mayor and common council, and they are required to raise for that purpose such amount by tax. Pamph. L. 1868, p. 808.

Thus the law expressly requires the city to raise by tax the amount of the reported deficiency, and directs the assessors to add three per cent, to the sum reported as the deficiency, to cover losses and contingencies. The amount of deficiency fixed by the water board is conclusive upon the common council, and the law requires that it be inserted in the tax levy. It is not necessary that there be a prior judgment to fix the amount. The reported deficiency is equivalent to a judgment. Dillon on Mun. Corp. (3d ed.), §§ 853-869; High 382, notes ; 12 Iowa 335.

There is no other way to enforce adequately the duty of common council to put in the tax levy the specific amount.

The testimony shows that on the 1st day of July, 1886, the arrears of interest on said water bonds due the relators was nearly $68,000.

It appearing that former writs of mandamus, similar to the one now applied for, have been issued, commanding the common council to put the deficiency reported in former years in the tax levy of those years, a peremptory writ will now issue as prayed for by the relators.  