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
MR. JUSTICE SWAYNE delivered the opinion of the Court, having
first stated the case.
We have not had the benefit of an oral argument upon either
side. The case was submitted upon printed briefs. We shall confine
our examination to the points thus brought to our attention.
In the return of the respondents to the alternative writ,
numerous objections were taken in regard to which their brief is
silent. We take it for granted they have been abandoned, and shall
not consider them.
I. It is said the court below, in rendering the judgment,
allowed interest upon the coupons from the time they became
due.
The judgment cannot be thus collaterally questioned. It can be
impeached only in a proceeding had directly for that purpose.
[
Footnote 1]
Page 71 U. S. 445
II. A statute of Illinois provides 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."
Such a warrant was applied for and refused after the rendition
of the judgment. If the judgment of the court below is sustained, a
warrant can yet be issued when the fund to pay the judgment is
provided if a warrant be necessary to complete the obedience of the
respondents in paying over the money according to the command of
the writ. There is nothing in the objection as a matter of
error.
III. The important question in the case is whether the
respondents are compellable to levy and collect, by taxation, the
amount specified in the order of the court below.
The writ, if issued, must conform to the order.
The court below proceeded upon the act of February 16th, 1863.
We have not found it necessary to consider any of the other acts
referred to in the briefs.
That act declares that
"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 or board of
supervisors, as the case may be, in liquidation of such
indebtedness."
The counsel for the respondent insists, with zeal and ability,
that the authority thus given involves no duty; that it depends for
its exercise wholly upon the judgment of the supervisors, and that
judicial action cannot control the discretion with which the
statute has clothed them. We cannot concur in this view of the
subject. Great stress is laid by the learned counsel upon the
language,
"may, if deemed advisable,"
Page 71 U. S. 446
which accompanies the grant of power, and, as he contends,
qualifies it to the extent assumed in his argument.
In
The King v. Inhabitants of Derby, [
Footnote 2] there was an indictment against
"diverse inhabitants" for refusing to meet and make a rate to pay
"the constables' tax." The defendants moved to quash the
indictment, "because they are not compellable, but the statute only
says that
they may, so that they have their election, and
no coercion shall be." The court held that
"'may,' in the case of a public officer, is tantamount to
'shall,' and if he does not do it, he shall be punished upon an
information, and though he may be commanded by a writ, this is but
an aggravation of his contempt."
In
The King and Queen v. Barlow, [
Footnote 3] there was an indictment upon the same
statute, and the same objection was taken. The court said:
"When a statute directs the doing of a thing for the sake of
justice or the public good, the word 'may' is the same as the word
'shall.' Thus, 23 Hen. VI, says the sheriff 'may' take bail. This
is construed he 'shall,' for he is compellable to do so."
These are the earliest and the leading cases upon the subject.
They have been followed in numerous English and American
adjudications. The rule they lay down is the settled law of both
countries.
In
The Mayor of the City of New York [
Footnote 4] and in
Mason v. Fearson,
[
Footnote 5] the words "it
shall be lawful" were held also to be mandatory. [
Footnote 6]
The conclusion to be deduced from the authorities is that where
power is given to public officers, in the language of the act
before us, or in equivalent language -- whenever the public
interest or individual rights call for its exercise -- the
Page 71 U. S. 447
language used, though permissive in form, is in fact peremptory.
What they are empowered to do for a third person the law requires
shall be done. The power is given not for their benefit, but for
his. It is placed with the depositary to meet the demands of right
and to prevent a failure of justice. It is given as a remedy to
those entitled to invoke its aid and who would otherwise be
remediless.
In all such cases it is held that the intent of the legislature,
which is the test, was not to devolve a mere discretion, but to
impose "a positive and absolute duty."
The line which separates this class of cases from those which
involve the exercise of a discretion, judicial in its nature, which
courts cannot control, is too obvious to require remark. This case
clearly does not fall within the latter category. [
Footnote 7]
The circuit court properly awarded a peremptory writ of
mandamus. We find no error in the record. The judgment below is
Affirmed.
[
Footnote 1]
Bank of Wooster v. Stevens, 1 Ohio St. 233.
[
Footnote 2]
Skinner, 370.
[
Footnote 3]
2 Salkeld 609.
[
Footnote 4]
3 Hill 614.
[
Footnote 5]
50 U. S. 9 How.
248.
[
Footnote 6]
See The Attorney General v. Locke, 3 Atkyns 164;
Blackwell's Case, 1 Vernon 152; Dwarris on Stat. 712;
Malcom v. Rogers, 5 Cowen 188;
Newburg Turnpike Co. v.
Miller, 5 Johnson's Chancery 113;
Justices of Clark County
Court v. P. & W. & K. R. T. Co., 11 B.Monroe 143;
Minner v. Merchants'
Bank, 1 Pet. 64;
Com v. Johnson, 2 Binney
275;
Virginia v. Justices, 2 Virginia Cases 9;
Ohio ex
Rel. v. Governor, 5 Ohio St. 53;
Coy v. City Council of
Lyons, 17 Ia. 1.
[
Footnote 7]
The People v. Sup. Court, 5 Wendell 125;
The People
v. Sup. Court, 10 Wendell 289;
The People v.
Vermilyea, 7 Cowen 393;
Hull v. Supervisors, 19 John.
260.
