ft. MACON COUNTY COURT
rel.STRATTON '11. SAME.
(Circuit Court, N. D. MiBsowrt, E. D. March 8, 189L) L
IssUE Oll' COUNTY W ARRANTS-MANDAHUS.
. . Mandamu8 having been granted requiring the county court. to draw warrants in favorof relators, payable out of "the general funds of the county," the warrants
were drawn accordingly, but, at relators' request, other warrants were drawn on .another fund in lieu of the warrants already drawn, and were issued to relators. HeZel, that the latter warrants werejssued pursuant to the writ of mandamus. Under Gen. St. Mo. 1865, c. 88, § 46, providing that county warrants are receivablein disoharge of "any county or oity revenue, license, tax, assessment, fine, pen" alty, or forfeiture," such warrants are.l'!lceivable in payment of a speoial tax levied for payment of county bonels, though the priority in which such warrants are quired by law to be pliid is thereby defeated.
COUNTr WARRANTB-'-CONSTITUTIONAL LAW.
A!lt Mo.. Feb. 28,1873, PrOviding that several warrants may I:!e issued for 0118 claim against a oounty, instead of issuing a single warrant, as was provided by the eXisting law, does not so· change the administration of county finances 'as to impair the remedy. for the ooJleotlon of warrants.
Where warrants have been received from an assignee thereof in payment of . taxes, and suoh payment has been apProved by the county court lin the settlement of the accounts of the county treasurer, such payment will be considered sufllcient, thougb the assignment was not in the form required by law.
Application for Ma""damUB. These cases are 'I7l.andam:u8 suits,originally brought in the United States circuit court for the western,. district of Missouri, when Macon county was attached to that district. They were recently transferred to this court, and since the transfer certain motions have been filed therein by the relators, to which motions the.respondents have filed a return. The cases have been submitted on a motion to quash the return, and also on a plea to the jurisdiction. With a few exceptions, the material allegations of the motions are not controverted by the return; but, as the case is somewhat complicated, a statement of the material facts alleged seems to be necessary. In the years 1875 and 1877 the relators severally recovered judgments against Macon county on coupons of county bonds issued in May, 1870, to aid in the construction of the Missouri & Mississippi Railroad. Thereafter, in September, 1879, the county court caused warrants to be drawn on the·· county treasurer for the amount then due on said judgments. The .warrants were drawn after the issuance of peremptory writs of mandamua commanding the county court to draw warrants in payment of relators' judgments. It seems that the warrants as at first ordered to be drawn were made payable out of "the general funds of the county, Dot otherwise appropriated," that might at any time be in the treasury; but sqch warrants, if tney were in fact issued, were soon canceled, and, in lieu thereof, other warrants were issued, at relators' request, payable ont of the "Missouri & Mississippi Railroad fund," which was a special fund
UNITED STATES V. MACON COUNTY COURT.
by law authorized to be created by an annual assessment of one-twentieth of one per cent. on aU the property in the county, to retire honds issued to said Missouri & Mississippi Railroad Company. The warrants so drawn on the special fund were presented by the relators to the county treasurer for payment on September 27,1879, but were not paid for want of funds, and but a small sum has as yet been paid thereon. By the laws of the state which have been in force for more than 25 years county warrants are made payable out of the fund on which they are drawn, in the order of presentation for payment. The presentment of a warrant to .the county treasurer for payment, although it is not paid, entitles sU.eh warrant to be registered, and to priority of payment over all warrants that are subsequently presented. The law of the state also in force when the several debts due to the relators were contracted provided, in substance, that a county warrant drawn in payment of a claim should be for the whole amount of the claim, and that only one warrant should·bedrawn for the amount allowed to any person at one time, (1 Wag. St. p. 415, § 32;) but in the year 1873 the statute in question was so amended as to permit any number of warrants to be drawn, at the option of the creditor, in payment of any county debt exceeding $25, if the total sum drawn does not exceed the debt. By virtue of other provisions of the laws of the stattl, county warrants cannot be aesigned merely by a blank indorsement, but must be indorsed in full. It is also the law that county warrants may be received. in payment of taxes levied for county purposes, and county collectors are specially enjoined to receive them in payment of such assessments. Rev. S1. Mo. 1889, § 8205. ' It is provided, however, that before the county treasurer shall receive warrants from the collector in discharge of county taxes, the latter officer shall make out a list of the warrants, verified by his oath, specifying the number and amount of the same, and from whom received, and the date of receipt, the same to be filed with and preserved by the county treasurer. Rev. St. Mo. 1879, § 5371. The relators allege, in substance, that during the year 1889 the county court of Macon county drew a large number of small warrants, ranging in size from $1 to $40, on the special Missouri & Mississippi Railroad fund, in payment of coupons on Missouri & Mississippi Railroad bonde, which were presented to the court for allowance and payment during the year; that these warrants were duly presented to the county treasurer for payment, and the date of presentation noted thereon; and that thereafter divers and sundry tax-payers made use of the same to pay their , county taxes, including therein taxes belonging to the special Missouri & Mississippi Railroad fund, on which the relators claim to have a prior lien by reason of the presentation of their warrants in September, 1879, as before stated. Relators charge that some of the warrants so used to pay taxes were not assigned in accordance with the state law to the persons who made use of the same to pay their taxes; that others were aesigned to a number of tax-payers Jointly, and were used by them collect.ively to pay the several sums due from them to the county for taxes; v.45F.no.6-26
that the county treasurer in hissettlenient with thecoUector received said warrants as, cash, without requiring 'the colleotorto verify the list of warrants returned, as the law of the state required;· and that,notwithstanding such irregularities,' the county court approved the treasurer's action'in accepting such warrants', whereby a large sum,to-wit, $360.37, was nominally paid into the special Missouri & Mississippi Railroad fund durit;tg'the year 1889, and,in effect, appropriated to the payment of WArrants drawn on said fund, long subsequent to the presentation of. relators' warrants. The information further charges that the irregular proceedings'last mentioned were taken' by collusion between the various county officers,-to-wit, the collector; treasurer, 'dnd county judges,-to preventthe payment of relators' warrants, and to deprive them of the priority to which they are this allegation of collusion between the county officers is explicitly denied by the respondents, the latter insisting that'in all: their officiahcts they ,have"complied with the laws ofithe state, and that, if any:of the warrants' received in payment of taxes were not propetlyassigneq, it was merely through inadvertence, and in rio wise impaired the right' of the several who owned said warral1ts to use ·them in pitying county taxes. The relief prayed for is that the court willadjudgej first, thattheaets 'of the several respondents above mentiouedare in conterrtptofihe pl'ocessof this court; that tlie'settlement made by the county treasurer with the county 'COurt, whereby.tQe i sumof$360.37 was' nominally paid 'into the county treaswarral'lts issued in 1889, be set"aside; that the special Missouri & Mississippi Ra:ilrdad· fundi charged with 'said Sum of and, that the simle.be/distributed among the relators; and generally t'he :relators pray that this ;c6urt, from this time forth, 'wilJ. take upon 'itSelf:the·ltdministration,of the Miss6u'ri:&Mississippi 'Railroad fund, by requi.ring the county court an'd'couhtyo treasnrerti> file irithis court eaeh:year,:until relators'wartantsare pnidradetailed statement of the moneys paid into and' withdrawn: from saId. 'fund, anda.fulli'eport of theiradmihistration' ofthe same. Joseph. Shippen 'and Ounningharll;&; Eliot, for relators. Ben E.:,(Jtithiie, B. R.. .Dyaart; and ,R. G. Mitchell, for, respondents. .. .
I , ·
TIJAYER,;;J';, (aftr8tatingth.e facts .,aaabove.) 'Toe first question to be <lonsidered'isjurisdiCtional. . L The respondents apparently concede, and, for present purposes I &ha11 assume, that the court has power to entertain these motions if the warrants ndwheld by relators weTe issued in obedience to process of the ' United States circuit court for the' western district of Missouri. 1:8ha11 assume that relators are right in asserting that an unlawfnlactorseries of acts committed' by county officers with'intent to defeat the payment of county' warrants, to'issueby the inandate ofacourt of competent jurisdiction, amounts' to a contempt of its authority ,and may be so treated. The reslJondcnts contchd, how· and this seems to be the only ground of their objec1.i.ull\to thejurisdiction, that the warrants here invulved were ilOt iss·ucu in obedience
UNITED STATES. "'. MACON COUNTY·, COURT.
to jUQiciMpr®ess of any ther were drawn bytbe county court ofMaeoncountymerely at the request of the relators, and are in no sense ,tbe.mandamu" proceedings in which the motions have been filed. If the facts are as they aver, I have no doubt that the objection to the jutiediction is well taken. I can conceive of no ground on which the pourt" upon a mere motion filed in these cases, could invarious acts complllined of, or undertake to afford redrf'.Bs quire for the alleged wronge, unless it be on the ground that the relators' warrants were obtained by means of process issued in these suits, and for ,thiltrea$on are ,entitled to protection by further supplementary proceedings had tl1erein. But the assumption that relators' warranl:$ were not issued' in' ooedience to writs of mandamus does not seem to be well founded., The contention is based solely on the fact that the relators petitioned the COUlltyCO\.lrt to draw warrants on the special Missouri & Mississippi fund, in payment of their judgments. after the court had ordered warrants to be drawn on the "general fund," and that the court granted'sucb request. This fact, it is urged. places the warrants now held by re1$.tors on ,the same footing with warrants drawn by the county court of its'own volition, in the ordinary ell:erc:ise of its auditing powers. But it dOElSnot llppear, ,and the ret,urn does not allege, that. the relators ever llccepted the warrantslls originally drawn on the general fund as a compliance with the writs of mandamus, or that such warrnnts ever passed out of the p08$,ession 'of the county. The fact is that relators' warrants of those originally ordered to be drawn, and that were issued "in the relators accepted them a.sbeing in compliance with the writs of mandamus. ,rrhefirst warrants were not paid, as respondents' attorneys contendo, by the issuance of the second ,warrants. The order, of county warrants on the Missouri & Mississippi court merely fundshould,.bc;iseped in lieu of those previously ordered to be drawn, the intenibeing evidenUY to substitute the f<.lrmer for the latter, and thereby comply ,with the writs .of mandamtt8 in a manner satistactory to the,re)ator$.,ffhe issued to the relators were also drawn on a fund that was properly to the payment of their judgments, and the drawing of warrants on the Missouri & Mississippi fune! was a substantial c»mpliance with the writs of ma:rtdamus. If the relators saw fino demand warrants on that fu!)d, and th,e county court thought proper to accede tathe request, both parties intending that the act done should be accepted..: asacom pliance with the writs Qfrnandamus., the court should so treat it",andthus give effect to,the intent of the parties. Viewing the m.atter in ,that light, I accordingly hold ,that relators' warrants were obtainedby:viritue of process heretofore issued in these suits, and that the plea to thu jm'jpdicti'Jn of the court should be overruled. 2. Ita;clJordiugly bcc.;onlcs to cousider'the motions on their merits.; Thc.l'ctuJ'll tldwits thnl fCSpl,ud.(mts have donethe several acts done are illegal, or that they ha,'e cOlnplaiued \Jf. bllt dflnief\ that tho -been done with defcat t.h\l payn I ent of relators' warran ts. .for.e mi:>cs tb.o question whether ;:nVJhacts are law/til or unlawful. the motioll to qUt\sh the: return is an. ad-
lnissiori of all material matters offact therein alleged; and, as the return avers that the respondents have neither combined nor conspired to obstruct the collection of the relators' warrants, but in all of their official acts have endeavored to comply with the laws of the state as by them understood, it must be taken for granted on this hearing that such is the fact. There appear to be three grounds on which the official action fore taken by the respondents is challenged. In the first place, it is said that they had no right to receive county warrants in payment of the special Missouri & Mississippi Railroad tax of one-twentieth of one per cent., and that their action in this respect was unlawful. This claim, however, is not made with much apparent confidence, and in my judgment there is no ground upon which it can be sustained. . The fact is that county warrants have been receivable for county taxes for more than 25 years. Gen. St. Mo. 1865, c. 38, § 46, p. 232. Such was the law when ·relators' bonds were issued, and the statute is very general in its terms. County warrants are made receivable in discharge of"any county or city revenue, license, tax, assessment, fine, penalty, or forfeiture." Language could hardly be made more comprehensive. It has been the common practice years to receive county warrants in payment of county taxes of every description, and I am not aware that· the practice has ever been called in question. It is· argued that by permitting taxes belonging to the special Missouri & Mississippi fund to be paid in warrants, the preference by law accorded to warrants first drawn thereon and registered, may be defeated. 'rhis is no doubt true, but it is equally true of warrants drawn on all other funds. The practice of receiving warrants for county taxes tends to defeat the payment of warrants in the order of priority, DO matter on what fund they are drawn. Relators have no more reason for saying that warrants are not receivable for taxes ,belonging to their fund because such practice defeats priority than the holders of warrants drawn on other funds. Therefore, the argument employed is entitled to no weight, and must be overruled. It is next contended that by the law enacted February 28, 1873, (Sess. Laws. Mo. 1873, p. 30,) permitting county warrants to be subdivided, so changed the law with respect to the administration of county finance8, and so impaired the remedy for the collection of the relators' debts, which was in force when the debts were contracted,-that such law is inoperative as to them. They accordingly claim that the respondents' action was illegal in accepting in payment ·of taxes due to the Missouri & Mississippi fund warrants that had been subdivided into small sums, pursuant to the act of 1873. I am compelled to hold that that this position is untenable. In my judgment it is not supported by either of the decisions cited by relators' attorneys, to-wit, Von Hoffman v. Quincy, 4 Wall. 535, and Edward8 v. Keaney, 96 U. S. 595, or by any of the authorities therein referred to. The act of 1873 did not attempt to alter the obligation of the county on' any of its outstanding contraets, or to change the remedy for their enforcement. It facilitated to someext6lit the use of county warrants in paying <lounty tllxes, and this is all that can against it. .
UNITED STATES 'V. MACON COUNTY COURT.
'Under the law as it stood in 1870, when the relators' bonds were issued, it was possible to make use of county warrants in payment of taxes quite as extensively as they may now be used under the act of 1873. The law at that time permitted them to be assigned, and did not limit the number ofperaons who might be named as assignees. A number of joint assignees of a warrant might lawfully use the same to pay taxes severally due from them to the county. No law of the state then or now in force, so far as I have been able to find, either in express terms or by necessary intendment, prohibited such a practice. For some reasonvery likely to facilitate the transaction of business in some of the poorer counties of the state, where warrants were in common use-the legislature saw fit to pass the act of February 28, 1873, which I think it clearly had the right to do, inasmuch as it did not thereby interfere with any vested rights. It is finally urged that the respondents violated the Iawin accepting warrants in payment of taxes due to the Missouri & Mississippi fund that were not properly assigned. It is said that the collector violated the law in receiving such warrants for taxes, that the treasurer violated the law in accepting them from the collector as money without a sworn list, and that the county court violated the law in .approving the treasurer's settlement. It is undoubtedly true, as relators contend, that the legal title to a comity warrant does not pass unless it is assigned by a full indorsement, in the mode provided by statute. It is also probably true that the 'statute contemplates a legal, rather than an equitable, assignment of a warrant, before it may be used by an assignee in payment of county taxes. There is not even a suggestion in these motions, however, that the various tax-payers who used warrants to pay taxes were not in good faith the equitable owners thereof; and, furthermore, it is shown both by the motions and the return, that the action taken by the -collector and treasurer in the matter now under consideration was approved by the county court, acting in a judicial capacity, when the county treasurer made his annual settlement. Under these circumstanceR the court can grant no relief, even though some warrants were received in payment of taxes that were not regularly and even though the list returned by the collector to the treasurer was not properly verified._ In the case of State v. Winterbottom, 123 U. S. 215, 8 Sup. Ct. Rep. 98, it was expressly held that .it was competent for the county court, in its settlement with the county treasurer or collector, to waive all such irregularities in the mode ofreceiving warrants in payment of county taxes as are here complained of. Referring to the collector, and his right to receive warrants in payment of taxes , the court said: "He had· a right to receive county warrants in payment of taxes. The law · * * declares it to be his duty to receive them. Whether they were ra.ceived by him under the exact circumstances which the law directs as to inalownership or aSSignment to the party who presented them were matters for which he might have beeD c&lled to accolint by the county court, and that body, in making the settlement with him, might possibly have had the power .to reject the warrants so received in making up -the account; but, inasmuch ;·as thelwere llctual obligations of the county,payableoutofthec&untyfunds,
. FEDERAL REPORTER,vol.
and rec.eivable in payment, (If it. r>toPllrly tendered, the county court ". could waive any 89-ch,irregularity in the time and mode of presentingtheir own obligations. with them in the acconnt." There seems to be little need of pursuing the "tlbject The only acts complained of that ,epuld possibly regarded as entitling the relators to any of the reliefsought in this proceeding, are those last considare mere irregularities, the county ered, ·and it seems that C()urt has the power to. waiVe, and has already waived by approving the treasurer's settlement. !talso stands admitted by the motion to quash that the action of the county court in waiving such irregularities was 110t due to any fraudulent. combination to injure the relators, but was .done in the exercise of point of a sound judicial discretion .reposed in view, therefore, the return made by the respondents is sufficient, and the motiou3 to quash must be overruled. It is so ordered.
".Fox et al.
(CCrcuAt Court, N. D. M1.s801J/I'£, E. D. March 8, 1891.)
SPECIFIO PERPORHA.NOi!:....MuTUALJTY op' CONTRACT.
A contract wbereby plaintiff to procure a deed to be made to defendant of oertain land owned by a persop, in llonsideration wber...of defendant agreed to convey to plaintiff certaln'other land,'ls not mutual so far as the remedy for its enforcement Is concerned, and cannot·be specifically enforced. since plaintiff's agreement to convey land of another but only subjects plain. . tiff to an action for breach thereof.
In Equity. This is a bill for specific performance of Ii contract for the. exchange of lands. Norris,the complainant, by an agreement in writing dattJd September 12, 1889, bound himself "to procure a warranty deed consubject to a certain incumbrance, veying * * * to certain land situated.iu Butler county, Kan., and "to furnish anabstract showing good title," except as to the incumbrance, in consideration whereof Fox on hisparLagreed and bound himself "to convey by general warranty deed Norris, or anyone named by him," certain land situated in Monroe.county, Mo. At the time the contract was executed the title to the Kansas land WIlS vested in one J .·E. Robbins. Noms 8ubsequentlyobiained a deed from Robbins and wife, to Fox, but the latter refused' to: accept the same, or comply with the tract, for various ,reasons unnecessary, to be mentioued. whereupon the present bill was' .filed. ' W. O. L.'Jewett, for complainant. . .' HarrilJon&,1Ifdh,am and R.. P. defendants. THA Yii, }. , statjng 0e been(ofced,in, this Speci