UNITED ST&'l'ES·. v.,MA.CON· OOtirNTY COURT.
MACON 90UNTY COURT.
Oourt, E.: J). Missouri,
R.ILROAD COMP.NIES-MuNICIPAL DAMUl!l TO LEVY SPECIAL TAX.
Ma.y 28, 1888.
ON ANNUAL TAX-MANC
ThoUKh a judgment has been obtained on coupons of county bonds issued under 13 of of februlIry20, 1861>, incorporating the Mis'souri& Mississippi HA,i1l'oRd, which provided that the amount of the special tax to be levied ID any line year for their payment should not exceed onetwentieth of one per cent.; mandamus will not lie to compel the levy a higher special tax to pay such judgment, as tbe holders of sucllllonds !!ore chargeable with notice of the provisions of the statute underwl1ich they are issued. ' , ,
Original Proceeding in Mandam'U8. Sanders Bowers, for, R. G. Mitchell, Pros. Atty., and Guthrie
Dysart, for respondents.
THAYER, J. This a mandamus proceeding to compel the respondents to levy a special tax to paya judgruent.recoveredagainst Macon county, in the central division of the Western district of Missouri, on November 25.1884, in the sum of $8,974.39. The case has been submitted in this district on, the and On a stipulation conceding ,certain facts. It will suffice to say that from the pleadings and stipulation it appears that the judgment referred to was baEed on coupons of bopds issued by Macon county pursuant to power conferred by the thirteenth section of an act passed on February 20, 1865, to incorporate the Missouri & Mississippi Railroad. That section (as is well known) authorized the issue of bonds without a popular vote, but limited the. amount of the special tax that might be levied in anyone year for their payment to one-twentieth of one per cent. It is conceded that Macon county has thus far levied one-twentieth of (lne per cent. annually, to meet the bonds that were issued under the act in question, and that the proceeds ofthe tax have been properly applied to the payment of the interest on the bonds. Upon this state of facts it is obvious that the case is controlled by the decision in the case of U. S. v. Macon (h'i 99 U. S. 589, and the peremptory writ prayed for must be refused. It was held in that case (following the general rule on t1}e subject) that pur«hasers of municipal bonds are chargeable with notice of the statute under which they are issued. It was furthermore held that if the statute under which bonds are issued limits the rate of special taxation for their payment, the bondholder cannot by mandam'U8enforce the levy of a higher special tax. That decision determines the present controversy. In the case of U. S. v. Olark Co., 96 U. S. 211, it was held that bonds issued under the thirteenth section of the act to incorporate the Missouri & Mississippi Railroad Company are debts of the county, as fully as any other liabilities, and that for any balance due on t1W same after the special tax of of one per cent. is exhausted,. the holder is entitled to a warrant payable out of the funds of theoounty
raised for general county expenses. The application in this (lase, however, is not to obtain a warrant against the general fund, but to compel a special levy in addition to the rate prescribed by the statute under which the bonds were issued. The writ must, of course, be denied. The relator's counsel seems to have been misled to some extent bv the decision ohbis court iIi U. 'S.Y. 32 Fed. Rep. 714: In that case the court was dealing with a statute which authorized county courts to issue bonds, but did not, limit the power of taxation for their payment. What was said in'that case must be understood in its relation to osuch a statute as was then under consideration. That decision bas no bearingon the present controversy. The statute under which the bonds involved in this required the bondholder to depend on the special tax of one-twentieth of one per cent. and the general county revenue for their payment. A peremptory writ is denied, and the proceeding is dismissed at relator's cost.
UNITED STATES fl. TAYLOR. IOircuit OQurt, S. D .
1. PtmLIC LANDS -TRESPASS HOMESTEAD.
RIGIiT OF GOVERNMENT TO SUE - POSSESSION--
Possession by a homestead claimant, and a receiver's receipt issued since -bringing the action, do not divest. 'the government of possession or title, so . that it cannot maintain 'an action of 'trespass for cutting timber on the land.
S; SaME-BURDEN OF PROOF.
In an actiop brought by the United States for trespass committed on gov. ernment lands, the burden. of proof is on the government to show that the acts of trespass complained of were committed by defendant or by his com· mand, or. that they were doneio r his benefi.t,or with his knowledge and con· .. sent, and were subseq\l:en,ljIy ratified by him.
SAME-MEASURE OF P R O O F . . .
In such a the acts need not be proved beyond a reasonable dOUbt, as hi criminal cl\.Ses; The proof need only be such as will reasonably convince the . jury l,l.fter applying the ordinary tests for the ascertainment of the truth. In sucqa'Citse, evidenCe that the employes of defendant, under his direc· tion or superintendence, erthat of his partner for their joint benefit, entered on the lands described in the complaint, and cut turpentine boxes in the trees thereon, or chipped such tree,9 for turpentine purposes, or removed therefrom crude turpentine, is sufficient to warrant a verdict against defendant. But if defendant merely bought turpentine from homestead claimants, havinp; noth.. ing to do witlj. hiring hands, or chippinl!," trees, or dipping or hauling turpento pay for this work at the request of said claimants, and deducting the amouht so paid from the agreed price of the turpentine, de· fendant is not liable.
In 'f:juchaca.se,'merely entering the land, and cutting boxes or chippinp; trees, '''andremoving'therefrom crude turpentine, entitles plaintiff to' nominal damages, though no actual damages were done. . In an action for cutting growing trees, if their value can be ascertained without reference to the value of the soil on which they stand, the measure of damages 'is. the injury done them, and not the difference in value of the JJ.nd pe,fottl inj ury.