County of Pope v. Sloan

Mr. Justice Sheldon delivered the opinion of the Court: This was a bill in chancery to enjoin the collector of Pope county from collecting a special tax of §1 on each §100 valuation of property of said county ordered by the county board at its September term, 1877, to be extended against the taxable property of the county for the year 1877, for paying indebtedness of the county existing at the time of the adoption of the present constitution, on the ground that the tax is unconstitutional and unauthorized by law. The court below overruled a demurrer to the bill, and the defendants standing by their demurrer, there was a decree of the relief prayed. The defendants appealed to this court. Section 8, article 9, of the constitution of 1870, provides as follows: “ County authorities shall never assess taxes the aggregate of which shall exceed 75 cents per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless submitted to a vote of the people of the county.” It appears from the showing of the bill that the indebtedness of Pope county, at the adoption of the constitution of 1870, did not exceed $30,000, and was about $28,000; that after the adoption of the constitution, the county board of the county during the years 1870, 1871, 1872, 1874, 1875 and 1876, in addition to the taxes assessed for county purposes, also assessed for those years for the purpose of paying county indebtedness existing at the time of the adoption of the constitution the aggregate sum of $56,957.54, from which, deducting $6500 for delinquent taxes, commissions, etc., left a balance of $50,-457.54, which was assessed and collected to pay such county indebtedness, being upwards of $20,000 more than the whole amount of such county indebtedness; that the amount of $8000 of this county indebtedness still remains unpaid, and $28,457.54 of the tax collected to pay such indebtedness has been diverted from its purpose and used for general county purposes unconstitutionally and without authority of law; that the county board, at its September term, 1877, assessed 75 cents on the $100 valuation for county purposes, and $1 on the $100 valuation to pay county indebtedness existing at the adoption of the constitution, said special tax amounting to $13,109.53. The bill alleges that it is unauthorized by law, and that its payment will be enforced by the county collector, unless restrained by the court. The claim of the bill is, that when the county authorities have once exercised the power to assess a tax in addition to the 75 cents on the $100 valuation, to pay off county indebtedness existing at the time of the adoption of the constitution, and have assessed taxes to the full amount of such indebtedness, and the same have been paid by the tax-payers, then such power of assessment becomes exhausted, and can not be exercised afterward, even though such taxes may have been by the county authorities diverted from and not applied to the purpose for which they were assessed and collected. We are unable to concur in this view. So long as there be county indebtedness which. was existing at the time of the adoption of the constitution, there may be exercised this power to assess a tax in addition to 75 cents on the $100 valuation, for the purpose of the payment of such indebtedness. Any former attempt at payment by the county authorities, in the assessment and collection of a sufficient amount of taxes therefor, accomplishes nothing in the way of payment, if the taxes after being collected are misappropriated to some other purpose. The creditor of the county is entitled to payment, and is not obliged to accept anything short, such as the assessment and collection of taxes for the purpose of his payment. He has no dealing with the tax-payers, and if the latter suffer wrong in the misappropriation of the taxes collected from them to pay county indebtedness, the only remedy is against those guilty of the wrong-doing. The tax-payers, and not the public creditors, must bear the loss and inconvenience from the wrongful diversion by county officials of taxes collected. The proceeding sought to be enjoined is in the interest of creditors of the county to raise the means for their payment, and it should not be defeated because of the misappropriation by county officials of former taxes which had been collected for this same purpose. Being of opinion the demurrer should have been sustained to the bill, the decree will be reversed, and the cause remanded for further proceedings consistent herewith. Decree reversed.