Statutes of Kentucky, of 1869, 1870, 1872 and 1813, construed in
reference to the duty of the judge of a county court to levy an
annual tax to pay the interest on bonds of the county issued in aid
of the Cumberland and Ohio Railroad Company, and to appoint a
collector of the tax.
A mandamus to the county judge to compel him to levy such annual
tax and cause it to be collected refused because it appeared that
he had levied the tax and appointed a person to collect it.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the second of February, 1887, Harvey S. Taft, a citizen of
Michigan, presented a petition for a mandamus to the Circuit Court
of the United States for the District of Kentucky. The petition
states that John W. Bass, the Presiding Judge of the County Court
of Taylor County, in the State of Kentucky, is a citizen of
Kentucky, and that Taylor County is a municipal
Page 137 U. S. 459
corporation created under the laws of that state and a citizen
of that state; that in the years 1881 and 1882, Taft recovered two
judgments against the County of Taylor in the Circuit Court of the
United States for the District of Kentucky, one for $5,974.98, with
interest, and the other for $1,214.96, with interest; that
executions were issued on those judgments, and returned "No
property found;" that the judgments were rendered on coupons for
the payment of interest on bonds issued by the County of Taylor in
payment of its subscription to the capital stock of the Cumberland
and Ohio Railroad Company; that by the statute authorizing such
subscription, the county court was empowered and directed to levy
annually and cause to be collected a tax sufficient to pay the
interest on the bonds; that for the purpose of levying and
collecting such tax, the powers granted by the statute were vested
in the presiding judge of the county court; that Taft had demanded
of Bass that the latter cause to be levied on the taxable property,
real and personal, listed for taxation in the county for the year
1887, a tax sufficient to pay be judgments and costs of collection,
and that, when levied, he cause the tax to be collected from the
taxpayers of the county, and that Bass refused to make the levy or
to cause it to be collected.
The prayer of the petition was that a writ of mandamus issue to
such judge commanding him to levy on the taxable property in the
county listed for taxation for the year 1887 an
ad valorem
tax sufficient in amount to pay Taft's judgments, with costs of
collection, and to cause such tax, when levied, to be collected
from the taxpayers of the county and paid into court to satisfy the
judgments.
The court granted an alternative writ of mandamus returnable
February 21, 1887. The command of the writ was that Bass cause to
be levied and collected a tax sufficient to pay the judgments and
the cost of collecting the tax
"on all the real estate and personal property in Taylor County
subject to taxation under the revenue laws of the State of
Kentucky, including the amounts owned by the residents of said
county, which ought to be given in under the equalization laws of
said state. "
Page 137 U. S. 460
On the return day of the writ, the plaintiff moved the court for
a peremptory writ an and the defendant filed his answer to the
alternative writ. The answer set forth that the defendant was
elected judge of the county in August, 1882, and entered upon his
office September 4, 1882, after the judgments in question were
obtained; that ever since his term of office began, he had caused a
tax to be levied, and levied a tax, on all the real and personal
property in the county subject to taxation under the revenue laws
of the state sufficient to pay all interest coupons on bonds of the
county issued in aid of the Cumberland and Ohio Railroad Company as
the same accrued or became due, and sufficient to pay for the
collection of the same, and sufficient to pay the plaintiff's
judgments and cost of collection; that in obedience to the
alternative writ, he had, on the 7th of February, 1887, caused an
order to be entered on the records of the Taylor County Court
making a levy of 86 1/2 cents on each $100 worth of all the
property, both real and personal, subject to taxation under the
revenue laws of Kentucky in said county, which was shown by the
assessor's book of the county to amount to $1,229,274, which levy
was amply sufficient to pay the plaintiff's judgments and the cost
of collection, and that he entered an order on the records of the
court appointing J. P. Gaddie collector for Taylor County, who was
a citizen of the county and a good and competent man, to collect
such tax. It appears by that order that the tax was levied for the
purpose of paying the two judgments of the plaintiff, and the cost
of collection, and that it was levied on the taxable property
listed and returned by the assessor of the county for the year
1887.
The answer further set forth that the office of Sheriff of
Taylor County was then vacant, and had been since the year 1877,
and for that reason the defendant made the order appointing Gaddie
collector; that the law under which the bonds of the county were
issued in aid of the railroad company did not confer upon the
defendant, as presiding judge of the county, power himself to
collect the plaintiff's debt or to enforce its collection, but only
to levy a tax on the taxable property in the county sufficient to
pay the debt, and to
Page 137 U. S. 461
appoint a collector to collect it if the office of sheriff was
vacant, and that the defendant had fully discharged his duties in
the premises as such presiding judge. The plaintiff demurred to the
answer on the ground that it did not state facts sufficient to
constitute a defense.
On the 22d of February, 1887, the plaintiff moved the court to
appoint the marshal of the district of Kentucky to execute the
mandamus and to collect from the taxpayers of the county the taxes
assessed and levied for the purpose of paying the plaintiff's
judgments. On the next day, the case came on to be heard on the
last-named motion and on the demurrer to the answer, and the court
entered a judgment that so much of the answer as related to the
appointment of a collector was insufficient; that the demurrer to
that portion of the answer was sustained; that the motion for a
peremptory mandamus against the defendant, in relation to the
appointment of a collector to collect the levies made by the
defendant and described in the answer, was sustained to that
extent; that the motion for the court to appoint the United States
marshal for the district of Kentucky as collector to collect from
the taxpayers and taxable property of Taylor County the amounts
severally assessed against them, under the terms of the special
levy made in obedience to the writ of mandamus, was sustained; that
the marshal was thereby appointed such collector, but such
appointment would be suspended or rescinded whenever it was shown,
by "the said defendant, Taylor County," that it or its appointees
were willing and able to execute "this judgment;" that before
proceeding to execute "this judgment," the marshal must execute a
bond, with sufficient sureties, to be approved by the court,
payable to Taylor County, to account for all moneys collected by
him under such levies; that the marshal should not proceed to act
as such collector until the expiration of ninety days from that
date, but if, after the lapse of that period, "the defendant" had
not manifested in the meantime "its willingness and ability,
through its own officials," to proceed in good faith to execute
"this judgment," then the marshal should proceed without further
delay to execute it, and should continue the execution thereof
until it
Page 137 U. S. 462
was fully executed or until his appointment was suspended or
rescinded. To review this judgment, the defendant Bass, Presiding
Judge of the Taylor County Court, has brought a writ or error, the
County of Taylor not being a party to the proceeding or to such
writ of error. The plaintiff has not appeared in this Court by
counsel.
By section 15 of the Act of Kentucky of February 24, 1869, c.
1578, vol. 1, p. 470, a subscription by Taylor County to the stock
of the railroad company in question was authorized, as also the
issue of the bonds on which the plaintiff's judgments were founded,
and the county court of the county was authorized and required to
levy annually, and collect by taxation upon the taxable property in
the county, as listed and taxed under the revenue laws of the
state, a sum sufficient to pay the interest on the bonds as it
should accrue, with the cost of collecting the same, and it was
also authorized to establish a sinking fund, there being a
provision for exchanging the tax receipts for stock, the holders
thereof to become stockholders. The railroad company was authorized
to pay to the county the amount of tax levied by reason of the
bonds, "and thus stop the collection of tax for that year," and the
county court was empowered to appoint collectors of the tax or to
require the sheriff to collect it, the sheriff to have the same
powers, and to proceed in the same way for the collection of such
tax as the sheriff in the collection of the state revenue.
By section 4 of the Act of March 11, 1870, Laws of Kentucky of
1869-1870, c. 610, vol. 2, p. 226, it was provided that the sheriff
of the county in which the tax should be levied should collect it
at the same time he collected the state revenue, and that he and
his securities on his official bond should be responsible for the
same and for the same damages for the failure to collect, or
nonpayment of the same that sheriffs were by law liable for on
account of not paying over the state revenue to be collected in the
same way. By section 12 of the same act, it was provided that the
county court should annually levy a tax upon all of the property in
the county subject to taxation for state revenue sufficient to pay
the interest on the bonds when due and the principal thereof at
maturity.
Page 137 U. S. 463
By section 4 of the Act of February 13, 1872, Laws of Kentucky
of 1871-1872, c. 265, vol. 1, p. 318, it was provided that the
sheriff of any county who should collect such taxes should pay over
the same to the commissioners of the sinking fund, who should apply
the taxes to pay the interest on the bonds.
By section 1 of the Act of March 11, 1873, Laws of Kentucky of
1873, c. 375, vol. 1, p. 478, it was made the duty of the county
court of any county that might have issued or might thereafter
issue bonds in payment of subscriptions to the capital stock of the
railroad company annually at the April or May term of the court to
levy a tax on the property of the county subject to taxation for
revenue purposes sufficient to pay one year's interest on the
bonds. By section 2 of the same act, it was made the duty of the
sheriff to collect the tax and pay over the same to the sinking
fund commissioners for the county, he and his securities on his
official bond to be liable for a failure to collect or pay over the
tax, with a proviso that if the county court should appoint a
special collector of the tax other than the sheriff, and such
appointee should qualify, the sheriff should not be required to
collect the tax for that year.
By these provisions, it was made the duty of the county court to
levy the tax annually to pay the interest on the bonds for that
year. In view of the provision that the railroad company might pay
the interest on the bonds to the county, and stop the tax for that
year, it is manifest that it was not intended that the interest
should be allowed to accumulate, and a tax covering several years'
interest be levied at one time. Neither was it intended that a
separate levy should be made for each bondholder, but only one tax
was authorized to be levied by the county court, and such tax was
to pay all the interest for the year and such part of the principal
as might be proper for the sinking fund.
The presumption under these statutes is that the County Court of
Taylor County had levied annually, for all the years prior to 1887,
a tax on the property in the county subject to taxation for state
revenue sufficient to pay the interest for each year, and that this
tax was collected and paid over to
Page 137 U. S. 464
the commissioners of the sinking fund. If this be true, and it
is not denied, the defendant, Bass, was not in default. The county
court can do only what is authorized by the statutes.
The petition does not allege that the county court, in any year
in which the plaintiff's coupons became due, failed to levy an
annual tax on the property in the county subject to taxation for
state revenue sufficient to pay the interest on the bonds for that
year, nor does it allege that the county had never levied or
collected such tax since that time. As it appears that the
defendant levied the tax in question and appointed Gaddie a special
collector of it, the defendant had exhausted his authority.
These are all the questions which concern the defendant. He has
nothing to do with the question of the appointment of the United
States marshal as collector or with so much of the judgment as
relates to the County of Taylor as a "defendant" when it is not a
defendant. The only matter in which the defendant Bass was
interested was as to that part of the judgment which compelled him
to perform an alleged duty. It being clear that he had performed
all the duty which was enjoined upon him by the statute,
The judgment of the circuit court must be reversed as to so
much of it as holds the answer of the defendant insufficient in
regard to the appointment of a collector, and as sustains the
demurrer to that part of the answer, and as sustains the motion for
a peremptory writ of mandamus against the defendant in relation to
the appointment of a collector, and the case is remanded to the
circuit court with a direction to take such further proceedings as
shall be in conformity with the opinion of this Court.