Supervisors v. United States
71 U.S. 435 (1866)

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U.S. Supreme Court

Supervisors v. United States, 71 U.S. 4 Wall. 435 435 (1866)

Supervisors v. United States

71 U.S. (4 Wall.) 435

Syllabus

1. On application by a creditor for mandamus against county officers to levy a tax to pay a judgment, the defendant cannot impeach the judgment by setting up that interest was improperly given in it. This would be to impeach it collaterally.

2. The statute of Illinois which enacts that when a judgment is given against a county, the county commissioner shall draw a warrant upon the treasurer for the amount, "which shall be paid as other county debts," cannot be taken advantage of on error, in case of an application for a mandamus to levy a tax to pay a judgment, where such a warrant was applied for and refused, and where there are no funds in the county treasury with which to pay the judgment.

3. Where power is given by statute to public officers, in permissive language, as that they "may, if deemed advisable," do a certain thing -- the language used will be regarded as peremptory where the public interest or individual rights require that it should be.

A statute of Illinois of February 16, 1863, enacts as follows:

"The board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in anyone year one percent upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court of board of supervisors, as the case may be, in liquidation of such indebtedness. "

With this statute in force, the state bank, relator in the

Page 71 U. S. 436

case, was the holder of certain coupon bonds of the County of Rock Island, originally issued and negotiated in payment of stock of the Warsaw and Rockford Railroad Company, for which the county had subscribed. They were issued pursuant to law.

The coupons representing the interest for one year were paid by the county, the necessary tax having been levied and collected for that purpose. Subsequent payments, however, were not made, and at the March Term, 1863, the relator recovered a judgment in the court below upon coupons overdue and unpaid for $2,554 and costs. Nothing was paid upon it, and there was no money in the county treasury which could be so applied.

The relator subsequently requested the supervisors to collect the requisite amount by taxation and to give him an order on the county treasury for payment. They declined to do either.

He then applied to the court below for a mandamus compelling the supervisors, at their next regular meeting, to levy a tax of sufficient amount to be applied to pay the judgment, interest, and costs, and when collected to apply it accordingly. An alternative writ was issued.

The supervisors made a return wherein numerous objections were taken to the issuing of a mandatory writ. Among them were:

1. That the court below, in rendering judgment, had allowed interest on the coupons from the day they became due.

2. That the respondent had no power to pay the judgment except by issuing an order on the treasurer of Rock Island County, the ground of this objection being a statute of Illinois which enacts that when a judgment is rendered against a county, no execution shall issue, but that the county commissioners' court shall draw a warrant upon the treasurer for the amount, "which shall be paid as other county debts."

3. In substance, that the respondent had levied and collected the regular county taxes and that the same had all been needed and used for the ordinary current expenses of the county.

Page 71 U. S. 437

The court below disallowed the return and ordered that a peremptory writ should issue commanding the respondents, at their next meeting for levying taxes, to levy a tax of not more than one hundred cents on each one hundred dollars' worth of taxable property in the county, but of sufficient amount fully to pay the judgment, interest, and costs, and that they set the same apart as a special fund for that purpose, and that they pay it over without unnecessary delay to the relator.

The main question here in the case was whether, under the Act of February 16, 1863, the respondents were compellable to levy and collect by taxation the amount specified in the order of the court below -- that is to say, in other words, whether that expression of the statute "may if deemed advisable" was permissive merely, or, under the circumstances of this case, obligatory.

Page 71 U. S. 444

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