A statute authorizing an issue of municipal bonds was amended by
an act increasing the amount authorized and also giving special
remedies in addition to, and not in lieu of, those given by the
original act, but directing that the bonds "shall on their face
stipulate" that the holders are entitled to the remedies contained
in the amending, as well as in the original act. The bonds were
issued after the amending act was passed, and contained a statement
that they were issued in pursuance of the original act and only for
the amount authorized thereby. They did not contain any reference
to the amending act or stipulation that the holders were entitled
to the remedies given thereby.
Held that, in the absence of such stipulation, the
holders were not entitled to the remedies given only by the
amending act.
On March 18, 1878, the General Assembly of Kentucky passed an
act authorizing the County of Taylor to compromise its debts and
issue new bonds of the county not exceeding in amount $125,000, and
also authorizing the circuit court, in case of a judgment on any of
such bonds and a refusal by the county within thirty days to levy a
tax sufficient to pay it, to make an order, based on the last
previous assessment, levying a tax and appointing a collector. On
February 27, 1882, an amendatory act was passed increasing the
issuable amount to $150,000, providing that any judgment rendered
thereon should constitute a lien on all the real and personal
property in the county subject to taxation, and also that, if the
court rendering the judgment should be of opinion that such serious
obstruction was likely to be offered as would materially delay the
enforcement of the judgment, it should refer the matter to a
commissioner, with instructions to ascertain and report the amount
proportionally necessary for the holders or owners of any such
property to pay in order to raise
Page 191 U. S. 71
promptly a sum sufficient to pay the judgment. Personal
judgments were authorized against the parties found to be the
owners of property within the limits of the county, to be enforced
by executions as other personal judgments. Section 10, vol. 1, c.
306, p. 558, reads as follows:
"SEC. 10. The bonds to be issued under the act to which this is
an amendment shall on their face stipulate that the holders of any
of them or any coupon thereof shall be entitled to the remedies for
the collection of the same herein and in the act to which this is
an amendment provided for."
Bonds were issued by the county, some of which passed into the
possession of the plaintiff, who brought suit and obtained judgment
against the county in the Circuit Court of the United States for
the District of Kentucky.
The bonds did not contain the stipulation referred to in section
10, but did contain the following recital:
"This is one of an issue amounting in all to $125,000,
authorized by an Act of the General Assembly of the Commonwealth of
Kentucky approved March 18, 1878."
Each bond also bore the following endorsement:
"Issued by authority of an Act of the General Assembly of the
State of Kentucky approved March 18, 1878."
On application for further relief, the circuit court awarded to
the plaintiff the benefit of the special provisions of the
amendatory act of 1882, but the circuit court of appeals held that
he was not entitled to them. 112 F. 718. Thereupon the case was
brought here on certiorari. 186 U.S. 485.
Page 191 U. S. 75
MR. JUSTICE BREWER delivered the opinion of the Court.
Conceding, without deciding, that both acts of the General
Assembly of Kentucky were in all respects constitutional and valid,
and that the proceedings of the circuit court were in strict
compliance therewith, we notice only the single question of the
effect of the omission from the bonds of the stipulation required
by section 10, as well as of any reference to the amendatory act,
and are of opinion that the omission is fatal to the special relief
provided for in that act.
There is nothing in the nature of things nor in the terms of the
two acts which prevents the parties -- the county and the recipient
of the bonds -- from contracting for solely the remedies provided
in the original act. The later act provided remedies not in lieu
of, but in addition to, those given by the former. There is nothing
on the face of the bonds to indicate that either of the parties had
in contemplation the provisions of the amendatory act. On the
contrary, the bonds in terms state that they are of an issue
amounting to $125,000 authorized by the original act. As the
amendatory act authorized the issue of $150,000, and as no
reference is made to that act, the language of the bond plainly
excludes it as
Page 191 U. S. 76
the basis of authority, and therefore as plainly implies that
the remedies by that act were not contracted for by the county.
We need not stop to inquire what would be the effect of a
recital on the face of the bonds that they were issued under the
authority of the amendatory act, or whether such recital would
obviate the necessity of complying with the provisions of section
10, for there is no reference to such act, and the bonds on their
face do not purport to be issued under its authority. So that the
question is whether the plaintiff, in the absence of any such
stipulation as is required by section 10, without any reference in
the bonds to the amendatory act, and when they purport to be issued
under the authority of the original act, can avail himself of the
remedies not provided for by the original, and only granted in the
amendatory, act.
Much is said in the opinion of the, Court of Appeals, as well as
in the briefs of counsel, as to the difference between a directory
and a mandatory provision -- the plaintiff claiming that section 10
is simply directory, while the defendant insists that it is
mandatory. In that opinion, these authorities are cited:
"'By directory provisions,' says Judge Cooley, 'is meant that
they are to be considered as giving directions which ought to be
followed, but not so limiting the power in respect to which the
directions are given that it cannot be effectually exercised
without observing them.' Cooley's Constitutional Limitations, star
page 74."
"Lord Penzance, in
Howard v. Bodington, L.R. 2. P.Div.
211, after commenting on the difficulty of gathering any rule from
the cases, said:"
"I believe, as far as any rule is concerned, you cannot safely
go further than that in each case you must look to the subject
matter, consider the importance of the provision that has been
disregarded and the relation of that provision to the general
object intended to be secured by the act, and, upon a review of the
case in that aspect, decide whether the enactment is what is called
'imperative' or 'directory.'"
Without attempting to state any general rule, if indeed one
Page 191 U. S. 77
such exists, for distinguishing between a directory and a
mandatory provision, it is sufficient to say that when a statute
provides an extraordinary remedy to the holder of bonds containing
an express stipulation that he "shall be entitled" to that remedy,
it should not be adjudged that he is also entitled to it in the
absence of such stipulation, for it is a reasonable presumption
that, if the county, in issuing the bonds, intended to contract for
such extraordinary remedy, it would have complied with the express
provision of the statute and incorporated the stipulation into the
bonds. That the authority in this amendatory act to proceed
directly against the several owners of property in the county is
not an ordinary remedy for the collection of bonds is true of the
State of Kentucky and generally of the states of the Union. Indeed,
the original act gave something more than the ordinary remedy, and
when the amendatory act provides for what must be conceded is,
under the circumstances, an extraordinary remedy, it would seem
reasonable to hold that all of the provisions of the statute which
grant such remedy should be complied with before it can be
considered as contracted for.
We are of opinion that the Court of Appeals did not err, and its
judgment is
Affirmed.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in the
result.
MR. JUSTICE HARLAN , MR. JUSTICE BROWN and MR. JUSTICE PECKHAM
dissent.
