The argument that, unless a mandamus be granted, in some form requiring provision for or payment of this claim, it might never be satisfied, is not a consideration that would justify the diversion of a city's income from the purpose to which the law intends it to be primarily applied. If this were the rule, it is plain to see how the city would or might continually be disabled from conducting its government. Suppose the liability of the city for cases growing out of tort amounted to large sums, which it is not unreasonable to suppose, a rule which requires the city to provide for the same out of funds that are necessary to defray its proper current expenses, whether such provision is enforced out of one year's funds or extended over many years, would practically deny the city the right to live.
It is our understanding of the law in these cases that the income is a primary fund for the payment of expenses of government; in other words, the expenses are a charge on the income in preference to other species of debt. And it must follow that when, as is shown to be the case here, the income is barely sufficient to meet current expenses, under economical administration, and such appears to be the settled status of the city's finances with the highest rate of tax allowed for general purposes and other sources of income, the court would not observe the law if they compelled payment of other liabilities out of such income. The contention that, unless such provision is made, plaintiff is in the position of having a right without a remedy, is of no more force than if he held a judgment against a person, whose property must go to pay prior claims, and from whom he has no present expectation of obtaining payment. This, in a like sense, would be a right without a remedy. There can exist on principle on distinction in this respect between claims founded on tort and on contract.
No one would question that the city is liable for the claim, and that the council ought to devise ways and means for its payment. But this affords no reason why a court should undertake to govern the city by controlling or determining what it may have and may not have of the benefits it is permitted to enjoy, — a discretionary matter which the law has committed exclusively to the common council.
The constitutional provisions for collecting twenty-five cents on the $100 valuation for city purposes, "and a like amount for the erection of streets, waterworks and other permanent improvements." does not contemplate that the expense of operating waterworks after erection should *Page 585 be provided for by special fund. The provision is for creating the improvements.
The motion for rehearing is overruled.
Overruled.
Application for writ of error dismissed.