Cape Girardeau County Court v. Hill, 118 U.S. 68 (1886)
U.S. Supreme CourtCape Girardeau County Court v. Hill, 118 U.S. 68 (1886)
Cape Girardeau County Court v. Hill
Argued April 7, 1886
Decided April 19, 1886
118 U.S. 68
A statute authorizing a municipal corporation to create a debt, required a tax to be levied on real estate to pay it. After the debt was contracted, an amendment to the act authorized the levy for that purpose to be made on personal property also. The debt not being paid, and both acts being in force, the creditor acquired by due proceedings the right to a writ of mandamus, directing the levy of a tax in order to pay his debt. Held that he was entitled to a writ commanding the levy on both species of property.
The act of the Legislature of Missouri of May 10, 1871, amending the Act of March 23, 1868, entitled "An Act to facilitate the construction of railroads in the State of Missouri" was not repealed by the failure of the legislature to incorporate it into the Revision of 1879.
This is a proceeding by mandamus, commenced in the Circuit Court of the United States for the Eastern District of Missouri. The information is based upon a judgment obtained by the relator in that court, April 7, 1881, for the sum of $6,659.80, the amount of certain past-due coupons of bonds issued by the County of Cape Girardeau in that state for the payment of a subscription made by the township of the same name to the capital stock of the Cape Girardeau and State Line Railroad Company. The authority for making the subscription and issuing the bonds was a popular vote at a township election held on the thirteenth of April, 1869, under a statute of March 23, 1868, entitled "An act to facilitate the construction of railroads in the State of Missouri." Laws Mo. 1868, p. 92. The first section of that act prescribes the condition upon which such elections could be ordered by the county court, and requires coupon bonds to be issued in payment of any subscription voted
"if it shall appear from the returns of such election that not less than two-thirds of the qualified voters of such township voting at such election are in favor of such subscription."
By the second section, it is made the duty of the county
court, from time to time, in order to pay any subscription so voted or the interest and principal of any bond issued on account of such subscription, to
"levy and cause to be collected, in the same manner as county taxes, a special tax, which shall be levied on all the real estate lying within the township making the subscription in accordance with the valuation then last made by the county assessor for county purposes."
By an act passed March 10, 1871, the second section of the last-mentioned statute was so amended as to require this special tax to be
"levied on all the real estate and personal property, including all statements of merchants doing business within the said city, town, township, or county lying and being within the township making the subscription in accordance with the valuation then last made by the county assessor for county purposes, provided however that no county, city, town, or township shall ever, in the aggregate, subscribe a sum exceeding ten percent of the last annual assessment within said county, city, or township."
Laws Missouri 1871, p. 55.
It is averred in the information that a demand was made upon the county court and the judges thereof to pay the said judgment, interest, and costs, or that they levy and cause to be collected upon the real estate and personal property in the township subject to taxation, including merchants' licenses, a tax according to law for the purpose of paying the said judgment, interest, and costs; that such demand was refused, and that the county has no property out of which the judgment, interest, and costs can be made. The return to the alternative writ of mandamus admits the right of the relator to a levy of a tax upon the real estate in the township, but to so much of the information as seeks to compel a levy upon personal property and merchants' licenses the county makes the following defense: that the Act of March 10, 1871, was repealed by the General Assembly of Missouri in 1879, before the relator obtained his judgment, and that the county court has not had since such repeal, and has not now, any authority to levy taxes upon personal property or merchants' licenses, in the Township of Cape Girardeau, for the purpose of paying relator's judgment.
Upon the final hearing of the cause, it was ordered that the county court, within thirty days after being served with a copy of the order, shall cause to be paid whatever amount of money may be in the treasury of the county to the credit of the township applicable to the payment of the judgment herein,
"said amount being whatever sum has not been heretofore paid on judgments and writs thereunder, pro rata, rendered upon coupons for which taxes have been collected for the coupons due of the same year, from which said judgments and writs, if any other than the relators in this case, unless of equal date therewith, are to be excluded in said pro rata computation."
It was further ordered and adjudged that in default of the payment of the full amount of the principal, interest, and costs, the county court
"cause to be levied and collected, in the same manner as county taxes are levied and collected, a special tax to be assessed and levied on all the real estate and personal property lying and being within the Township of Cape Girardeau, in the said County of Cape Girardeau, and including all statements of merchants doing business within said township, for the purpose of paying the judgment of relator, or so much thereof as may remain unpaid at the time of making said levy, together with interest and costs;"
that the levy so ordered and directed be made at the time of making the annual levy of taxes for state and county purposes in the year 1883; that the said special tax be extended on the regular tax book for said year, in a separate column on said book, and that it
"cause the collection of said tax by suit, distraint, or otherwise, as by law required, and when collected to pay the same to the relator or his attorney of record."
From that judgment, the present writ of error has been prosecuted.