State ex rel. Dox v. County Judge of Johnson County

Weight, J. I. For many reasons we think the court did not err in overruling the motion to amend the writ. In the first place, the motion was entirely too general. It does not point out wherein the writ differed from the judgment, to which it is asked to have it correspond. The attention of the court was not by the motion called to any defects or discrepancy, and it might, therefore, be properly disregarded. In the second place, the writ does correspond with the judgment. It is true that the judgment does not follow what is asked for in the information, nor does the command agree with the matter of inducement set out in the writ. As to these matters, however, there is no complaint. The judgment is, that the proper- county officers be required to levy and collect a tax of two mills on the dollar, as shown by the assessment of 1859. The command of the writ follows the judgment literally. Again, it seems that an alternative writ was issued, to which there was no return, and thereupon the peremptory — 242 — Afrit was ordered. This alternative writ is not in the record. The rule is, that the peremptory writ should conform strictly to the alternative. In other words, the court cannot award a peremptory mandamus in a more limited, or other form, than the alternative. It must go in this form, (except that it omits of course the works requiring the respondent to show cause,) or not at all. [Chance v. Temple, 1 Iowa, 197; Code, §§ 2184-5; Tapping 305; Dox v. County Judge of Johnson County, 10 Iowa, 157.] For aught that appears, therefore, there was this necessary agreement. If there was not, then there was error whatever the judgment. If there was (and we are so bound to presume,) there was no more. But once more; we do not understand the judgment and mandate to differ, or be in conflict with the act of the county, authorizing the issuing of the bonds, and providing for their payment. Under the proposition submitted, as we construe it, a tax not exceeding three mills on the? dollar was to be levjed for the first ten years, and after that time not exceeding one per centum per annum, on the county valuation. But for any year the county judge could reduce the rate,in the event that the maximum would yield more than sufficient to raise the amount to be paid in such year. The command to levy two mills, instead of three, was not, therefore necessarily in conflict with the terms of the proposition as adopted. As the record stands, then, we cannot say there was error in overruling the motion. II. The other part of the case presents questions of more importance and difficulty. In 1853, the county of Johnson voted to issue her bonds and take stock in the “Lyons, Iowa Central Railroad Company,” to the amount of fifty thousand dollars, undertaking to pay the- same by a tax as herein-before stated. (And see Ring v. Johnson County, 6 Iowa, 265, and Dox and Whittaker v. Same, 10 Ib., 157 and 161.) It seems that this tax was not levied; nor was the interest on the bonds paid. In May 1859, the relator being the — 243 — owner of a judgment, recovered upon some of the interest notes, as well as some of tbe unpaid coupons filed; bis information, after due notice, asking the writ of mandamus, commanding and compelling the proper county officers to levy and collect a tax for the payment of his demands. An alternative writ was issued, at the June Term, 1859, of the Johnson District Court, to which there was no return. Afterwards, at the same term, the peremptory writ was ordered returnable to the next term. This was issued and returned March 19, 1860, and on the same day the county judge, surveyor and treasurer made a return, showing, as they claimed, that they had obeyed its mandate. Such proceedings were had, that the county judge and surveyor were discharged, and an attachment ordered to issue against the treasurer, returnable to the next term. At the return term of this last process, the treasurer made a further answer, to which there was a demurer by plaintiff. The peremptory writ was served February 24th, 1860, and the return of.the Board of Equalization (the respondents) dhows that on that day they complied with the command of the writ, by levying “ a tax of two mills on the dollar on the valuation of property in the county of Johnson, as shown by the assessment roll for the year 1859, for the purpose of paying,” &c. It was further stated, that “the county clerk was thereupon ordered to make a duplicate thereof, in order that the same may be collected by the county treasurer, and that so soon as said tax duplicate is completed by said clerk, a warrant will be issued thereon, ordering the said county treasurer to collect the said tax according to law.” The further return of the treasurer (filed June 26th, I860,) states that the books were prepared by the clerk with all possible dispatch, and were then placed in his hands; that the respondent commenced receiving and collecting the tax levied as aforesaid; that he has attended at his office- every day since the receipt of said books for the purpose of receiving said tax; that he has given due notice of said levy, and by a cir — 244 — cular (a copy of which he attaches to his answer) urged upon tax-payers the necessity of meeting said levy; that as he is advised he can do nothing further, except to remain in his office to receive said tax, as the same may be tendered by the tax payers, until the 15th of January, 1861, as the same was levied subsequent to January 15th, I860. The substantial question made upon the above facts is, whether it was the duty of the treasurer to proceed to collect this tax by the distress and sale of personal property, and failing this, the sale of real estate, in the same manner as if the tax had been levied in 1859, and become delinquent on the 15th of January, 1860; or whether it was his duty to wait until January 15th, 1861, before treating the same as thus delinquent. In our opinion, appellant's position is the correct one, and that the further return of the treasurer did not purge his contempt. This debt was owing by the county. It was owing and due in 1859, and before that time, as well as after. The duty of the county to pay, to levy and collect a tax for that purpose was as incumbent and obligatory before as after the order of the court compelling the same. This being the plain duty of the officers as the agents of the county, the omission thereof ought not to be allowed to postpone its collection. Not only so, but by the terms of the contract between the holders of the bonds and the county, the faith of the county was pledged to the levy of a tax to meet the accruing interest, and finally liquidate the entire indebtedness. This duty the county was solemnly obligated to perform, each and every year. Not to levy a tax in 1860 to meet the interest due in 1859, but each year, it was contemplated would bear its own burdens. Good faith to the bond holders, therefore, demanded the levy and no postponement should bo allowed because of, as far as shown, an inexcusable neglect of duty in failing to make the same. And while, so — 245 — far as the writer of this opinion is concerned, he has never concurred in the view which sustains the power of the counties to issue such bonds, yet he may be permitted to say in this connection, that as long as the power is recognized and upheld, he believes that public policy and good faith alike demand that the indebtedness should be properly and regularly met according to the terms and specifications of the contract. So long as the validity of the bonds is recognized, neither the agents of the counties, nor the courts should countenance any action or proceeding which would tend to militate against the strict and full legal rights of the holders. Again, it must be remembered that the order of the court and the mandate of the writ was, that the county officers (respondents) should proceed immediately to “levy and collect a tax of two mills on the dollar, on the valuation of property in the county of Johnson, as shown by the assessment roll for the year 1859, for the purpose of paying” &c. It will be seen from this that the mandate was that they should discharge the duty of collecting as well as levying immediately. As a rule, the respondent (the treasurer) could only certify in answer to this writ, that he had complied with or obeyed its requirements. Tapp, on Mandamus, 408; State v. Smith, 9 Iowa, 334. To this there are exceptions in cases where it has improvidently issued, or has commanded the performance of that which the defendant had no legal right to do. Tapp. 337. The writ, however, did not improvidently issue in this case, nor did it command the performance of an illegal act. And while the command was to immediately levy and collect, we are not to understand, therefore, that the collection was to be made, before the same could be accomplished by the use of legal means. These means are not to “sit at the receipt of customs” to receive the taxes, but those which the law points out when taxes are delinquent. — 246 — And finally, the office of this writ is to compel the party addressed to perform a duty which results from his office, trust or station. Code, § 2179. The officer thus addressed should not be allowed to escape this duty or obligation, because of a failure to do that precedent act which would have ensured the ultimate performance of the whole duty, at the time provided by law. And especially is this so, when the relator, as in this case, has been prompt, in invoking the aid of the court in compelling the performance of the duty required. The order overruling the demurrer is reversed, each party-paying half the costs of this appeal.