, FEDERAL REPORTER.
JUDGES OF SCOTLAND COUNTY.
(Circuit Court, E.
Judgment went against a Missouri county on certain railroad aid bonds issued by it, and the holder applied 'for mandam1l8 to compel a tax levy to pay the jUdgment. Thecounty'judges returned that they had already levied the tax; that there was no law, either when the bonds were executed or when the writ was served, authorizing a special levy; that the judgment could only bE' paid by warrants drawn on the treasury, payable out of the usual county taxes; that there were no funds, and that if they obeyed the writ they would be guilty of a misdemeanor under the laws of the state. As a matter of fact, when the bonds were issued tllerewas alaw(Wag. St. Ed. 1872, p. 306, § 21) authorizing counties to "levy a special, tax; to PaY the interest on such bonds, or to provide a sinking fund to pS:y the principal." . In addition, the county courts tllen had a general power "to audit and settle all demands against'the county," and "to levy such sums as were anniIally necessary to defraY the expenses of the county." Wag. St. 441, § 9; page 1193, $:I 165. Deli/" that the return was insufficient, the judgment having determined the validity of and the rights of the holder being fixed by the laws in force at the date of issue, and any order made in the case by the federal court bei»,g llomple protection to the county judges., of
OF STATE AND FEDERAL-LEVY OF TAX-COUNTY BoNDS.
F. '1. !Iug'he8 and John A. OveraU, for ,relator. (Jwnningham,forrespondents.
Maruj,am:U8 to Compel the Levyofa Special Tax by the county judges county.· "On, dep:lUrrer 'to, r:esI>0ndent's return.
TH","YER,' J., (orally.) In cases a'53 and 1287, consolidated, (United States ex rel. WiUiamHiU v. Scotland ()Qunty,) the demurrer. to the respondent's return to .the alternative writ of mandamt1.8 will be sustained. In this case" ,omitting the parts of the return, the respondents say: ,"Th!\t l\tthe,date of the execution of the bonds on which the judgment in the there was no law of the state of Missouri, and is no law at the' present date, authorizing them .to levy any special tax for the purpoSe of paying 'tp.e judgment, or fOl'thepurpose of Pll>ying the bon<is." ", , in,¥ay, 1887, they tax, for county purposes,offlve mills upon eacll one pundred dollars of an assessed valuation of less than two milliOJi,dollars,andthat their predecessol'if had levied a similar tax in previous un!ier the state laws now l\nd heretofore in force, the relator's jUdgmentcanimly be paid by warrants drawn on the county treasury, payable 'out of taxes levied for county purposes, and that the treasurer has no fQ,nds,. and. thatothe result would be, if, they obeyed,the writ. that I;,hey would . be guilty of grave crimes and misdemeanors, under the laws of the state of Missouri." . .;, ' ., :,Tl1lS pll,rt ,of the return is ob,viously an insufficient plea to an alternato enforce the payment of a judgment against the :COU11ty. For the most part, it is a mere recital of the construction. placed by the , certain general Jaws. of the state, which the court is notice of, as Rfj to construe. would, have been
more appropriate to have moved toqU8.!3h the alternative writ, if thv reaSons stated in this part of the return ate valid reasons why the peremptorY .writ should not issue. The judgment already rendered determines the Yalidity of the bonds l merged therein for all the of. a by mandamus to enforce its payment, and that is not open to an attack in this supplementary proceeding, although the respondents were not county judges when it was rendered. That proposition is settled beyond cavil in the cases of Supervisors v. U., S., 4 Wall. 435, a:nd Mayor v. Lord, 9 Wall. 409. The bonds being valid, and it having been necessarily so determined before the entry of the judgment, there is no doubt whatever that"under the laws of the state, as they existed when the bonds were negotiated, the county court had ample authority to levy a tax to any amount to pay the same. The supreme court of Missouri, in the case ofState v. Shortridge,56 Mo. 130, (as I understand the decision,) so held; citing section 34, p. 429, Rev. St. 1855, which remained the law, as the court 4, and until after the date of the issue/ of these bonds, say, until after and appears as sectlOn 21, p. 306, Wag. St. (Ed. 1872.) In Ralls Co. v. U. S., 105 U. S. 736, it was also held that the railroad charter, under which these bonds were issued, conferred ample power to levy a tax for their payment. Furthermore, at the time these bonds were issued, the cOllntycourts had a general power" to audit and settle all demands against the county," and "to levy such sums as were annually necessary the expenses of the county." Wag. St. § 9, p. 441, and section'165, p. 1193. If the county court had power to levy a tax to pay the bonds when they were issued, that power has not been, and could not be, subsequently withdrawn, so long as the bonds are Qutstanding alldunpaid, as has been many times held. Van Hoffman v. Oity of Qu'incy, 4 Woll. 535; City of Galena v. Amy, 5 Wall. 705; SulJer'IJiBorsv. V.S., 4 Wall. 435; Butz v. Oity of MU8catine, 8 Wall. 575; Riggs v., Johnson, 6 Wall. 184; and numerous other cases. In the face of these decisions, it is idle for the plaintiffs to say that they have no power to levy a special tax to pay the judgment, or to say that they made a levy of five mills on the dollar in May last, for county purposes, and can make no further levy. It is not shown whether the rate of taxation for county expenses for 1887 had been fixed before the alternative writ was served, but if it bad been, no reason is perceived why an additional levy to pay the judgment might not have been ordered and extended on the tax-book. The laws of this state (sections 6805 and 6,806, Rev. St. 1879) simply direct the county judges to fix the rate of county taxation" as soon as may be after the assessor's book is corrected and adjusted." Sections 6710 and 6731 of the Revised Statutes of Missouri, 1879, provide, in substance, that a failure to deliver the assessor's book in time to the county court does not invalidate the assessment, and that the levy is not invalidated by any informality in making the assessIDf;lot pr the tax-list, or on account of the assessment not being
ISee 25 Fed. Rep. 395.
completed within the time required by law. The provisions in the state re'venue law as to the time when the various shall be done, seem to have been made by the statute merely directory. But, however this may be, an order of this court, made in a case that is clearly within its jurisdiction, is, I apprehend, ample protection to the defendants. Riggs v. Johnson,6. Wall. 193. The balance of respondent's return merely repeats two of the pleas contained in the second amended answer on which the case was originally tried, and contains matter tending to show the invl1lidity of the bonds. Those pleas were either held bad in point of law, or the proof failed to support them, and it matters not which was the. case, as the validity of the bonds cannot be retried in this proceeding. Supervisors v. U. S., supra; Mayor v. Lord, supra. The demurrer will therefore be sustained.
HILL 'D. SCOTLAND COUNTY COURT.
((JirffUie Oowrt, E. D. Missouri, E. D.
COURTS-MANDATE FROM: FEDERAL COURT-INJUNCTION BY STATE COURT.
The United States circuit court had, by a peremptory writ of mandamus, compelled the judges of the county court to levy a tax to pay a judgment against the countv_ Afterwards an action was brought in a state court, and the collection of the tax was enjoined. Held, that the action of the state court was an unwarranted interference with the United States court. and furnished no defense to a peremptory writ of mandamus by the United States circuit court to compel the collection of the tax.
FROM: FEDERAL COURT-TAX LEVy-VALIDITY OF BONDS.
In his answer to an alternative writ of mandamus· to compel the county clerk to show cause why he should not make a supplemental t&,1' list, and extend thereon for collection certain taxes levied to pay a judgment on certain bonds of the county, he pleaded that the bonds bad been adjudged invalid. Held, that this was no defense to the issuance of a writ of mandamus after a judgment on the bonds had been obtained.
Demurrer to Returns. John H. Overall and Fe T. Hughes, for relator. H. A. Ounningham, for respondent. THAYER, J., (orally.) I have examined the roturn filed by James R. Nesbitt. county clerk of Scotland county, and also the return filed by Joel Ewing, collector of Scotland county, to an alternative writ of mandamus issued in case No. 2,610, of Hillv. Scotland Co., which commanded the county clerk to make out a supplemental tax book, and extend therein certain taxes that were levied by the county court of Scotland county on August 30, 1887, and which commanded the county collector, when the taxes should have betln so extended, to proceed with the collection of the same.