209 U.S.

393
28 S.Ct. 522
52 L.Ed. 849

J. B. BEADLES, Plff. in Err. and Appt.,

v.
A. E. SMYSER, Mayor, G. R. Byers et al., City Councilmen,
and W. R. Fry, City Treasurer, of the City of Perry, Noble
County, Oklahoma.
No. 150.
Argued March 4, 1908.
Decided April 6, 1908.

Messrs. A. G. C. Bierer, S. H. Harris, and Frank Dale for plaintiff in error

and appellant.
No appearance for defendants in error and appellees.
[Argument of Counsel from pages 393-396 intentionally omitted]
Mr. Justice Day delivered the opinion of the court:

This is a proceeding to review the judgment of the supreme court of the

territory of Oklahoma, affirming the judgment of the district court of Noble
county, in that territory, denying a peremptory writ of mandamus to the
plaintiff in error, also plaintiff below, seeking to compel the recognition of
certain judgments and the levy of taxes by the city officers of the city of Perry,
a city of the first class, in Noble county. The action was begun March 12, 1906,
in the district court, upon a petition which set forth the ownership in the
plaintiff of judgments against the city of Perry, rendered, with two exceptions,
in the year 1898; the other two rendered in January and March, 1899, and
aggregating the sum of $16,304.51, including interest and costs.

The petition avers that these judgments were rendered on warrants issued by
the city of Perry upon the general fund of the city; that, no funds having been
provided for the payment of plaintiff's and certain other judgments, on
December 3, 1901, the judgment creditors of the city entered into an agreement

with the city treasurer of the city by signing a certain paper writing, to wit:
3

'I, the undersigned, judgment creditor, holding judgment against the city of
Perry, Noble county, Oklahoma territory, hereby ask that the city treasurer pay
all judgments against the city of Perry in order of rendition, hereby waiving
right to payment pro rata, if such right exists, and this waiver shall apply to all
grantees and assigns. Said judgments are in amounts and dates as follows:'
[Here follows a list of the judgments.]

At that time the outstanding unpaid judgment indebtedness of the city of Perry
amounted to $22,000, all of the owners of which, excepting the sum of $4,000,
signed the agreement; that the waivers thus signed were presented to the city
council of the city, which adopted the following resolution:

'Whereas, the judgment creditors holding judgments against the city of Perry
have practically all signed written waivers of the right, if such right exists, to
payment of said judgments pro rata, and therein consent to the payment of said
judgments in the order of their rendition against said city:

'Therefore, be it resolved, that the city treasurer is hereby authorized and

directed to pay the said judgments existing against the city of Perry, in the
order of their rendition, out of the funds now on hand, and as they shall accrue
in the judgment fund.'

That thereafter the city treasurer followed the plan thus outlined of paying
judgments up to the early part of the year 1905, and the judgments prior to
those sued upon by the plaintiff were paid off in that way. And it is averred that
under the laws of the territory of Oklahoma a judgment fund must be created to
satisfy a judgment against a municipality, and a judgment of that kind can be
paid in no other way. And that under the laws of Oklahoma no execution can be
levied upon a judgment against the municipality, and that during the time since
the rendition of the judgments the city of Perry has had no property subject to
levy upon execution, and that the judgments of the plaintiff could not have
been paid, and taxes levied for that purpose, because there had not been
sufficient money in the judgment fund of the city of Perry to pay the judgments
or any part thereof. That under the agreement of December 3, 1901, payments
of judgments against the city have been made, but, in the order of rendition, the
fund has been paid upon judgments prior to the plaintiff's. That under the law of
the territory, during the life of the said judgments, at least since the year 1899,
it has been the duty of the city of Perry to levy annually a tax not to exceed 5
mills on the dollar on all the property of the said city, to create a judgment

fund; and that said city has made said levy annually, and paid judgments down
to the early part of 1905, since which time the city treasurer of the city of Perry,
under the direction of the mayor and city council, has declined to pay the
plaintiff's judgments or any proportion of the same, and that there has
accumulated in the hands of the city treasurer $2,286.96, the judgment fund of
said city. And that at all times down to the beginning of the year 1905 the city
of Perry has recognized the binding force and validity of said judgments; that
mayor and council and treasurer of said city decline and refused to recognize
the validity of the plaintiff's judgments or pay any part thereof, and deny any
liability thereon, solely on the ground that the same have become dormant and
barred by the statute of limitations of the territory of Oklahoma. And other
averments are made as to the inability of the plaintiff to otherwise collect his
money upon the judgments than by payment by a levy at 5 mills on the dollar
of the taxable property of the city. And the plaintiff prayed a writ of mandamus
against the mayor, city council, and treasurer of said city, commanding them to
recognize the said judgments and to continue to make the 5-mill levy allowed
by the law for the judgment fund for the payment of said judgments against the
city, as provided by law.
8

An alternate writ of mandamus was issued, reciting the allegations of the

petition, to which the defendants filed an amended answer, in which they set up
that each and all of the judgments set out in the alternate writ of mandamus
have become dormant because no execution was issued on any of said
judgments, and no proceeding begun for the revival of any of them, and the
same were barred by the statute of limitations of the territory.

The plaintiff filed a motion for judgment upon the amended answer, and prayed
the issuance of a peremptory writ of mandamus upon the ground that the
amended answer failed to state any legal reason why said peremptory writ
should not be issued. The defendants moved the court for judgment on the
pleadings, on the ground that all the judgments were barred by the statute of
limitations. The court sustained the motion of the defendants, and entered final
judgment in the defendants' favor, upon the ground that all the judgments set
out in the alternate writ of mandamus have become domant and are barred by
the statute of limitations.

10

Upon proceedings in error in the supreme court of the territory of Oklahoma

this judgment was affirmed on the authority of Beadles v. Fry, 15 Okla. 428, 2
L.R.A.(N.S.) 855, 82 Pac. 1041. The present case is reported, 17 Okla. 162, 87
Pac. 292.

11

The question is first made as to the jurisdiction of this court, because it is

averred that the sum of $5,000 is not involved; but we are of the opinion that
the issue made and decided involved the validity of the $16,000 and upwards,
of judgments described in the petition and amended writ. The prayer of the
petitioner was for a continuous levy of taxes for the amount permitted by law,
to be applied in payment of the judgments. The answer set up that all the
judgments were barred by the statute of limitations, and the district court of
Noble county determined that the judgments and each and all of them set out in
the petition and alternate writ of mandamus had become dormant and were
barred by the statute of limitations. This judgment was affirmed by the supreme
court of Oklahoma.
12

Appeals and writs of error are allowed from the supreme court of Oklahoma to
this court where the value of the property or the amount in controversy, to be
ascertained by the affidavit of either party or other competent witness, exceeds
$5,000. 1 U. S. Rev. Stat. Supp. 724.

13

We think the judgment in this case involves the validity of all the plaintiff's
judgments, and that the amount in controversy is not simply the fund in the
hands of the treasurer, but the amount of all the judgments concerning which
relief was sought and which were directly adjudicated to be barred by the
statute of limitations.

14

The question made in the case is, Are the judgments dormant by the statute of
limitations of the territory of Oklahoma for failure to issue execution thereon
for the period of five years, and because the same were not revived within one
year after they became dormant? The statutes of Oklahoma in 4635, 2
Wilson's Revised & Annotated Statutes of 1903, provide as follows:

15

'If execution shall not be sued out within five years from the date of any
judgment that now is or may hereafter be rendered, in any court of record in
this territory, or if five years shall have intervened between the date of the last
execution issued on such judgment and the time of suing out another writ of
execution thereon, such judgment shall become dormant, and shall cease of
operate as a lien on the estate of the judgment debtor.'
Section 4623 is as follows:

16

'An order to revive an action against the representatives or successor of a

defendant shall not be made without the consent of such representatives or
successor unless in one year from the time it could have been first made.'

And 4630 provides:

17

'If a judgment become dormant it may be revived in the same manner as is

prescribed for reviving actions before judgment.'

18

It is contended by the counsel for the appellant that this case is governed by the
ruling of this court in Duke v. Turner, 204 U. S. 623, 51 L. ed. 652, 27 Sup. Ct.
Rep. 316. We are of opinion that the question here involved was not
determined in that case. There was no question of a judgment becoming
dormant under the statute of limitations for want of execution within five years.
The point decided in that case was that the petition for mandamus was not a
civil action within the meaning of the Oklahoma Code, barred by the three-year
statutes of limitations, and the question was whether the relator had slept upon
his rights for such an unreasonable time as to prejudice the rights of the
defendant and preclude relief by mandamus. In this case the underlying
question is not as to whether a writ of mandamus is the proper remedy, but is
whether the judgment is dormant by reason of the statute of limitations, and
incapable of being enforced against the municipality.

19

The supreme court of Oklahoma held that the statute made no exception, and
that notwithstanding the averment of the petition that the city of Perry had no
property liable to be reached on execution, that unless execution were issued
within the five years, or the judgment revived within one year, it had become
dormant for failure to comply with the law.

20

There is some difference of view in the opinion of the courts upon the subject
of executions against municipalities, and in some of them it is held that
property of a municipality may be reached on execution which is held for
profit, and not charged with any public trust or use. It was held in this court that
the public property of a municipal corporation cannot be seized upon execution.
Klein v. New Orleans, 99 U. S. 149, 25 L. ed. 430.

21

Judge Dillon, in his work on Municipal Corporations, 4th ed. vol. 2, 576,
notices the differences of ruling on the subject, and states as his own
conclusion:

22

'On principle, in the absence of statutable provision, or legislative policy in the

particular state, it would seem to be a sound view to hold that the right to
contract and the power to be sued give to the creditor a right to recover
judgment; that judgment should be enforceable by execution against the strictly
private property of the corporation, but not against any roperty owned or used

by the corporation for public purposes, such as public buildings, hospitals, and
cemeteries, fire engines and apparatus, waterworks, and the like; and that
judgments should not be deemed liens upon real property except when it may
be taken in execution.'
23

Accepting the decision of the supreme court of Oklahoma, rendered in 15

Okla., supra, construing the statute so as to permit the issuance of execution
against the municipality, with the right to levy upon the private property of the
corporation if it the any,could the city take advantage of the failure to issue
execution under the circumstances shown in this case? This subject was briefly
disposed of in the opinion in that court, and of it the learned court said (15
Okla. 436, 2 L.R.A. (N.S.) 858, 82 Pac. 1041):

24

'It is alleged that this agreement and resolution of the city council prevented the
running of the statutes. This resolution was passed at a time when the plaintiff's
judgments were in full force and effect. The city council did not attempt to
renew its liability on these judgments. Without expressing our views as to
whether such judgments should be paid pro rata, or in order of priority as to
date, we are of the opinion that the council could not change the law, and, if the
resolution purported to change it, it would be void; and if it was in conformity
with the law it would not change the relation of the parties.'

25

That the principles of right and justice, upon which the doctrine of estoppel in
pais rests, are applicable to municipal corporations, is recognized by textwriters and in well-considered cases. In 1 Dillon on Municipal Corporations,
4th ed., in a note to 417, that learned author says:

26

'Any positive acts (infra vires) by municipal officers which may have induced
the action of the adverse party, and where it would be inequitable to permit the
corporation to stultify itself by retracting what its officers had done, will work
an estoppel.'

27

And this case does not rest on the ground of equitable estoppel alone. The
manner of liquidation of these judgments was the subject of express contract
between the parties.

28

In the present case, by the action of the city council, the judgment creditors
were so placed that during the time, at least, while the city council were
carrying out the arrangement of December 3, 1901, in good faith, they could
not, consistently with fair dealing and the terms of the contract on their part,
issue an execution to seize the property of the municipality; had they

undertaken to do so a court of equity would have promptly restrained such

proceedings.
29

It is averred, and not denied, that up until the year 1905 the city council made a
levy each year for the largest amount which the statute permitted, to create a
judgment fund out of which to pay, and out of which was regularly paid, the
outstanding judgments against the city, and that these payments continued until
the plaintiff's judgments were reached, which were next in order. While thus
acting to the limit to which the law permitted, and in good faith carrying out the
arrangement between the parties, it is perfectly apparent that the plaintiff was
not in a position to seize by execution any property of the municipality.

30

If it could be held, as the authorities indicate (2 Dill. Mum. Corp. 4th ed. 850,
note 1), that, when execution cannot be issued on a judgment against a
municipality, mandamus may take its place, the action of the city council in
making the arrangement in question would have equally prevented the plaintiff
from availing himself of that writ.

31

In this case the agreement made by the parties in December, 1901, was being
continuously carried out until 1905. And during that time the city of Perry was
doing all it could be compelled by mandamus to do in levying taxes to the full
amount required by law for the payment of judgments against the city. The
court would have no power by mandamus to compel the levy of taxes which the
law did not authorize. United States v. County Court, 99 U. S. 592, 25 L. ed.
333.

32

As we have said, the principles of natural justice and fair dealing are alike
applicable to municipal corporations as to individuals, and to permit the city to
escape the payment of judgments whose validity is not otherwise questioned,
for failure to issue execution or sue out a writ of mandamus during the time
when the action of the city officers was such as to prevent the exercise of the
right, would be to permit the action of the representatives of the city, who have
had the benefit of the contract during the time both parties were observing its
obligations, to work a gross injustice upon the creditors holding valid
judgments against the municipality.

33

We have been referred to no case precisely in point. Analogous cases are not
altogether wanting. In Mercantile Trust Co. v. St. Louis & S. F. R. Co. 69 Fed.
193, it was held that a stay of execution in the record prevented the judgment
becoming dormant. In Marshall v. Minter, 43 Miss. 678, it was held that the
statute did not run during the time an injunction was in force, sued out by the

adverse party and afterwards dissolved.

34

It is not argued at the bar in this case that the arrangement with judgment
creditors was void for want of power in the municipality to make the
arrangement of December, 1901, and we fail to see any valid reason why the
municipality might not enter into this arrangement. It was permitted by law to
make an annual levy of 5 mills on the dollar. 1 Wilson's Rev. & Anno. Stat.
1903, 466. If the judgment creditors and the municipality saw fit to make an
arrangement by which the amount of this annual levy might be distributed by
the consent of the creditors among them in accordance with the priority of their
judgments, we perceive no reason why this may not be legally done. The effect
of this arrangement was to prevent the judgment creditor from taking such steps
as the law permitted to collect his judgment, and, upon principles of common
right and justice, it would not do to permit the city to carry out such an
arrangement during nearly all the five years' period, and then meet its
obligation by a plea of the statute of limitations upon the ground that the
judgments had become dormant, while both parties were recognizing their
binding obligation and doing all that the law permitted to effect their
satisfaction, and had entered into a contract which prevented the judgment
creditors from taking steps to avail themselves of their right to collect their
judgments by execution or by writ of mandamus.

35

For these reasons the judgment of the Supreme Court of Oklahoma Territory is
reversed, and the cause remanded to the Supreme Court of the State of
Oklahoma for further proceedings in accordance with this opinion.