Statutes, to afford protection,against the rigoroue application of the laws to Cases of accidental and innocent violation of their provisions. The positionthnt the horses in. question cannot be regarded as having been imported into this country because only intended for temporary use here cannot be sustained. Not only would it be a most dangerous precedent to establish that. property brought into the United States from foreign countries for temporary use here, and with the in.,tention ofretuming it tothe9puntry from which it comes, is for that 'reag()D exempt from duty .imposed upon it, but it would be contrary to ,the .manifest intent as evinced by the fact that property brought into this cp,QptrY,froQl foreign countries temporarily foroor.tain purposes, the present case does not come, is expr6$sly,exempted from dutY9therwise imposed upon it. There must be judgment of CQJ.ldE/mnation. and it is so ordered.
.Gmc8pci.on,24 Fed. Rep. 358, and.was repealed by the act of June 10, St. pp. 34, 755.) leaving eection5292 of the, Revised 1890,
U'NlTED. STATES ll:!l.
DAVIS 11. KNOX CoUNTY
E. D. June 29.1891.)
. holders of county bonds issued under the charter of the Missouri & Misst.. sillPi Company (Acts Mo. 186f, 'pp. 86,88, § IS) are entitled, after ex· hausting'\heapeciaHax of onetwentteth of 1 per cento, to reSQrt to the general funds of the county. crllated ;by a of not less than one h\llf of 1 per cent.; that ¥ingthe county purpoSljS t!le time the bonds were issued; U. S. v. mark,O()., 96 U.S. 211; U. S. v. Mrwon 00., 99 U. S. 589; and Oounty Oourt v. U. S., S Sup.Ot.-Rep.131,109 U. S.229,...;..followed.
Acts Mo. 1879. p. ·198. (Rev. St. Mo, 576112,) a tax of one half of 1 per county purposes, Wl!o!lllo, mere substitute for previous laws aucent. for thorizing".s.uch.l!o tax, and not a new t,.x; and therefore a county which issued bonds under thecbarter of 'said railroad company cannot be compelled to levy a tax for their payment, of one half of 1 percent., in addition to the tax authorized by the act of 1879.
S. SAlIIE-GBLIIIA.T10J,q'OJ' CoNTRAOTS. , ,
The fact that, under existing laws! cert!join county expenses for roads and bridges are now payable out of the general lUnd oreatedby the 'tax of one half of 1 per cent., which expenses were not chargeable against such fund when the bonds were issued, does not impair the obligation of the contract evidellood by the bonds.
. . ,
The provision of the Missouri constitution, and of the act of 1879, that the limitation therein imposed upon taxation for county purposes shall not apply to taxes levied to.plloY valid bonded indebtedness. does not authorize counties which issued bonds under the charter of the Missouri & MississiJ;lpi Railroad Company to levy taxes without limit to pay the Hme; tor' such proVlsioll applies only to counties whioh had tBsue4 honds under laws taxation without limit.
.Applicationby the United States. at the relation of Samuel C. Davis, for a writ of mandamus aga.inat Knox county and o,thers, 'to compel the
UNI'tEDBTATESV. XNOX COUNTY.
levy oh. tax to pay a certain judgment.
nied. Thos. K. Skinker, for relator. James Ca,,., for respondents.
Motion to quash return. DE'-
THAYER, District Judge. The questions to be determined arise on a motion toquaflh the return to an alternative writ of mandamus, commanding the .levy of certain taxes to pay a judgment recovered on bonds issued under the charter of the Missouri & Mississippi Railroad Company. Vide Sess. Acts Mo. 1864,Regular Sess. pp. 86, 88, § 13. If I understand the points made by counsel for the relator, they are substantially as follows: 1. That the holders of the bonds iSBued under the charter in question havetbe right, after exhausting the special tax of one twentieth of 1 per cent.! to resort to the general funds of the county, created by a levy of not less than one half of 1 per centum annually, that being the rate of'taJriation for county purposes in force when relator's bonds were issued. Vide Sess.Laws Mo. 1868, p. 142, § 2, and Acts 1869, ,po 81, § 1. To this I answer, granted, under the decision in U. S. v. Clark Co.,96 U.S. 211, reaffirmed in U. S. v. CottntyofMacon, 99 U. S. 582; and lrownty,Cou,rt v. U. S., 109 U. S. 229, 3 Sup. Ct. Rep. 131. 2. The second point is that the tax of one half of 1 per centum for county purposes, authorized by section 1 of the act of March 19, 1879, Laws Mo. 1879, p. 193, now section 7662, Rev. St. 1889,) cannot be regarded as a continuation of the tax of one half of 1 per cent. for general county purposes, authorized by previous laws, but is a new tax, and that the counties which have issued bolids under the Missouri & Mississippi Railroad charter, for the payment thereof, may be com· pelled to levy a tax to the extent of one half of 1 per cent. in addition to the tax authorized by the act of 1879. This point must be overruled. It is contrary to the interpretation of the act of 1879 that has· been adopted and acted upon for the past 10 years. Section 1 of the act of 1879 was obviously intended as a substitute for the laws then in force, granting authority to the several counties to levy taxes for general county purposes, and it was passed to give effect to section 11, art. 10, of the constitution of 1875. The federal courts have heretofore acted on the assumption that the various counties of this state might be compelled by mandam'U8 to exercise the taxing power conferred by the act of 1879, for the purpose of raising a fund to pay bonds issued under the Missouri & MississiIJpi Railroad charter. They so acted in the case of Macon Co. v. Httidekaper, 134 U. S. 332, 10 Sup. Ct. Rep. 491; and it never seems to have occurred to anyone heretofore that the taxing power conferred by that act was not available for the purpose of paying county bonds. 3. It is next contended that, if the act in question was intended as a substitute for previous laws authorizing taxation for county purposes, then it impairs the relator's contract, because certain county expenses for roads and bridges are now payable out oithe general fund, and v.51F.l1o.13-56
tefid .to. deplete.,it,. which were not :011f,o( said fund !When .the MiElsouri & Mississippi Railroad charter was granted. This contention must be overruled. Conceding, for the this decision, but without deciding, that the state could not,as against bondholders. reduce the rate of taxation for general county purposes that was established bylnwon Fel»:uary :2Q,11865, or on May 13"1867., :when the,subscription. under ,that aot was" made" yet it .does ,not follow that state was tberelllterpoweriess ,to charge against the general rev.enueSlOf the county any othereounty, expenSes thnn.such as were, in 1865 or, 1867 payable out Jund.·. As well migbtit be said thAt the state contracted ,witliJ that the cQuutyexpenses should at. no time in the future exceed what they then were. The ,fact is that. the state a oLone twentieth :of 1 percent. for the exclusive bene6t,ot the bundholder. rtsald to him,'in; effect, "lUhe special tax· :.not pay: your, bonds,you must takeYQur. chance of thB Jlsichle outnof whatever\moneys the CQuntymay from time to time.be:allowed.,toraise·by tattlltion: for general:oounty.. purpClses,"'Phe,bmldho]der: Q1ust bepregumed to hilvetakan 'his honds with the facUbat the expenses and· revenaElS of the;Collnty would-:v.aty.'(tow"ye8r.to\yea'l'\ llnd that new-expenses iUigbt be incurred or :g9atanty on ,the paTt of thestat-e' .that the county IShotHd :temain ,nfixed 'llnd unvarying q,uentity,Of that the legislature.; 1\tQuJd . mOde of, administering the county tinances.,The·mo!j't that can consistently ,be. claimed is that the state cannot",reclucethe: Irate' of ,uua,tion :tor. generaLcounty purposes which was' ,in force &, MississippicRailroad charter was granted, and thi& it, hils ,not done 01' attempted to do. In point of faot the authorized tate, ,of, taxation for countyp,urposes, is now greater than it.was,on,Februatty, zOe, 1865, and, as. much as it was on May 13, 1'867·.. ,.¥itUi ar,ticle.1i,.§ Act. Feb; 4, ,1864. and article 4, § 1, same actj.(Sess.iu'Ws'Mo. 1863, Adjourned'Sess" pop. 66,· 84.} The views thltt I have expressed ontbe point now:ilJoder consideration are even more: favorable to the' Telatol'thanwould::seemto be.warranted by some expressions found in the case of U. S. v,Macon CO.i,< 99 U. S. 589. In: the case cited the following languag6Wias used: " . , . ' " While tho debt WIl.S authotiied, the power'of taxation for its payment waslimited by, the act itself. and. the, genel'al stattltesin furce at the time. the speqia\ tax designated in othertaxe!1. applicable to then. were.o"rmiqht thereafter. or .special acts. " .. . ..: .' ... The italics ,are mYQiWn. From what: was. thus said,it might fairly be inferred ,that the rate :oftaxation for ,coun1ypurposes .in force on Fe,h,rufiry 20. 1865, may:he diminished at will by 'the legislature, without impairing the contract of the bondholders. But it is unnecessaryto:go to that exte.okasthe:statehasnotreducedthe rate of taxationfor purposes since 1865. . 4. The :poil)t is also made that both the constitution of 1875 and tbe ao1,of 1879 provide that the liD)itation therein imposed upon tax-
UNITED STATES 11. MACON COUNTY COURT.
ation for county purposes shall not apply to taxes levied to pay valid bonded indebtedness; and from this it is argued that the taxation authorized by the act Of 1879 had no reference to taxes levied to pay county bonds. The point made is without merit, for the following reason: It is well known that, when the constitution of 1875 was adoptert, many, or at least some, counties, had issued bonds under laws which permitted taxation to any amount for their payment. Other counties, like the respondent, had issued bonds under laws permitting the levy of a limited special tax for their payment. The proviso obviously had rt permitted counties of the first class to reference to such levy taxes to any amount to pay valid bonded indebtedness, and counties of the second class to levy one half of 1 per cent. in addition to whatever special tax was authorized to meet bonded indebtedness by laws enacted prior to the constitution of 1875. But it does not authorize, cOunties which have issued bonds under the Missouri & Mississippi Ra.ilroadcharter to levy taxes ad libitum. Such counties may levy a special tatt of one twentieth of 1 per cent. When that is exhausted, recourse must be had by the bondholder to the" general fund," and,the tax to create such general fund is limited both by the constitutional1l.1 statute to one half of 1 per cent. annually. The counties have no power to overstep that limit; and, as a matter of course, no court, state or federal, can compel them to do so. lt follows from the views her!·tofore exprl'ssed that the respondents' return must be adjudgellsllffieient, and the motion to quash be overruled. The return shows that Knox county has levied a special tax of one tw('ntieth of 1 percent., and in addition a tax of one half of 1 per cent. for general purposes. l\lore thau that it cunnot be cOlllpelled to assess.
eal1'el. IIUIDEKOPER 'D. MACOliT COUNTY COURT.
(Circuit Oourt. E. D. MissourI, N. D.
September 13. 1892.
App!il'ation by the United StateR. on the relation of Art hllr C. I1llidpknp"r, for a writ of mundam1£1l against the county COU1't ()[ Macon cuuuty. Denied. Phillips, Eltewart, Cunningham & Eliot, for l·elatoX'. W. H. Seat'S and R. Ii. Mitchell. for retlpolldcuts.
THAYER. District JUdg-e. A.s the questions which arise in this CIlRe nre the same which the COllrt had occasion to cunsicler and delerllline on the of June. Ul91. ill the eastern division of this di::ltl'ict, in the case of U. S. v. KnoaJ <':0:. [JIFed. Ht>p. 1.1t:lt:l.l a copy uf the opinion in tlmt case is hprl'witb appendell. tu he filed ill the suit at I'ar. It exprl'ssl's sUbstan. tially the reasons which have influenced the l'o"rt to entf'r a judgmt.'lIt.in fa. vor of anelto overrule the moti"n for a new triftl. It Illay not Uf' olltofplace to add that the 'views urged by the I'elator's attorneys in this case, as in tbe were urged before the supi'ewe Clourt