252 F. 673 | 8th Cir. | 1918
Lead Opinion
The plaintiffs in error in this case are J. T. Bunch, W. H. Duncan, and W. P. Tucker, who are the county judges of St. Clair county, Mo., and William J. Mathews, the collector, George Virgil Higgins, the clerk, and E. M. Terry, the treasurer, of that county. They complain that the court below, notwithstanding their return to an alternative writ of mandamus served upon them, issued its peremptory writ commanding the judges to levy $2.50 on each $100 of the assessed value of the property in St. Clair county, and the collector, clerk, and treasurer to make return of their willingness to collect such levy and pay over the proceeds thereof to the relators, who are the owners of that certain judgment in favor of Joseph B. Townsend, Jr., J. Barton Townsend, and Charles C. Townsend, for $338,162.43, and against St. Clair county, rendered in the court below on the 4th day of May, 1914.
A brief statement of the origin of this judgment will materially aid in a ready understanding of the issues to be considered. Under an act to incorporate the Osage Valley & Southern Kansas Railroad Company, approved November 21, 1857 (Session Raws of Missouri 1857, p. 59), and an act to incorporate the Tebo & Neosho Railway Company, approved January 16, 1860 (Session Raws of Missouri 1859-60, p. 402), St. Clair county issued and delivered its bonds and coupons. Joseph T. Murtagh brought an action in the United States Circuit Court for the Western District of Missouri, the predecessor of the court below, against the county on some of these bonds and coupons, and on April 24, 1884, recovered a judgment against it thereon. Upon that judgment of April 24, 1884, Murtagh brought an action in the same court against the county and recovered a judgment against it thereon on November 29, 1895. Upon that judgment of November 29, 1895, Murtagh brought an action against the county in the same court and on December 16, 1905, recovering a judgment against it thereon. Upon that judgment of December 16, 1905, the relators, .to whom Murtagh had assigned the judgment, brought an action against the county in the court below, and on May 4, 1914, recovered the judgment against it thereon for $338,162.43, upon which the peremptory writ of mandamus in this case is based.
The conclusion of the whole matter is that by the special acts which have been cited the state of Missouri conferred upon St. Clair comity the power to issue the bonds and coupons In controversy; that from this grant of ¡lower the authority of the county court, to levy sufficient taxes to pay them is conclusively implied in the absence of counter legislation (Loan Association v. Topeka, 20 Wall. 655, 22 L. Ed. 455; United States v. New Orleans, 98 U. S. 381, 25 L. Ed. 225); that this authority was expressly conferred upon the county court by the express grant of power to “take proper steps to protect the interest and credit of the county”; and that this power is not limited or restricted by the general statutes to which attention has been called. Further discussion of the reasons for these conclusions is omitted from Ihis opinion, because they have been authoritatively set forth and the conclusions stated
Indeed, a proceeding for a mandamus against the judges of the county court and the other officers of a county whose duty it is to participate in either the levy, the collection, or the payment of a judgment against the county, to compel them to discharge their respective duties, is in reality a proceeding against the county itself. The duty to levy, collect, and pay is imposed upon all officers of the county so far as they respectively have any duty to perform, either in the levy, the collection, or the payment, and the writ binds, not only such officers named, but also their successors in office. Thompson v. United States, 103 U. S. 480, 483-485, 26 L. Ed. 521; People v. Collins, 19 Wend. (N. Y.) 56, 65; Commissioners v. Sellew, 99 U. S. 624, 627, 25 L. Ed. 333; Hollon Parker, Petitioner, 131 U. S. 221, 226, 9 Sup. Ct. 708, 33 L. Ed. 123; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 33, 17 Sup. Ct. 225, 41 L. Ed. 621; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 603, 18 Sup. Ct. 441, 42 L. Ed. 873; Murphy v. Utter, 186 U. S. 95, 99, 101, 102, 103, 22 Sup. Ct. 776, 46 L. Ed. 1070.
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Dissenting Opinion
(dissenting), The plaintiffs in error claim in their return that the judgments were void for fraud, because the residents and citizens of Missouri, who they claim were and are the real owners of the bonds, caused the plaintiffs in these various judgments to represent themselves falsely aiid fraudulently as the owners of the bonds, in order to give a colorable diversity of citizenship of parties, and thus lodge jurisdiction in the court; that these acts were intended to be and constituted frauds upon the court; that the falsity of these representations was unknown to the county, and was fraudulently concealed from it until after this alternative writ of mandamus was issued.
In my judgment this presents a question of fact going to the vital- . ity of the judgments, which should have been determined in the trial court.' It is true that under many circumstances the only orderly way to challenge judgments for such causes as here involved would be through an equitable proceeding. In this case, however, is the allegation made by the county as a statement of fact that it bad no information of the fraud until after the. issue of the writ in the present proceeding. This, in my judgment, creates a situation necessitating, and therefore authorizing, Ihe presentation of the above defense in the mandamus proceeding.