Deuel County v. First Nat. Bank of Buchanan County

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. . The questions open for review in this court upon the present record are: First, whether the motion to quash the alternative writ of mandamus was properly overruled; and, second, whether a peremptory writ of mandamus was properly awarded on the facts found and reported by the trial judge. The principal ground urged by the respondents below in support of their motion to quash the alternative writ of mandamus is that, as the authority to issue a writ of mandamus against a county must be found in the laws of the state, and as the laws of the state of Nebraska quoted above only authorize an application for a writ of mandamus against a county to be made to a particular court, to wit, the district court of the county, the circuit court of the United States had no right to entertain the application for a writ of mandamus, and in granting it acted wholly without jurisdiction. With reference to this contention it is only necessary to say that it has long been settled that the federal courts may issue writs of mandamus to compel the levy of a tax to pay judgments which they have rendered against counties or other municipal corporations, when, by the laws of the state, it is expressly or impliedly made the duty of the officers of such municipalities to make provision for the payment of such judgments by an exercise of the power of taxation. This power has been exercised repeatedly by the federal courts, and of its existence at the present time there can be no reasonable doubt. If the courts of Nebraska can compel the officers of a county to levy a tax to pay a judgment rendered against a county, — as they doubtless may do, —then the circuit court of the United States for the district of Nebraska can exercise a similar jurisdiction to compel the payment of a judgment by it rendered. Stryker v. Board, 40 U. S. App. 585, 599, 23 C. C. A. 286, and 77 Fed. 567; Riggs v. Johnson Co., 6 Wall. 166; Von Hoffman v. City of Quincy, 4 Wall. 535; Butz v. City of Muscatine, 8 Wall. 575, 581; U. S. v. New Orleans, 98 U. S. 381, 393; Loan Ass’n v. Topeka, 20 Wall. 660; Wolff v. New Orleans, 103 U. S. 358; U. S. v. Clark Co., 96 U. S. 216; Ralls Co. Ct. v. U. S., 105 U. S. 733. Another ground upon which the motion to quash appears to have been based was as follows: That the information upon which the alternative writ had been obtained was fatally defective, in that it did not show the nature of the original cause of action on which the judgment was founded, so that the court could decide whether, [267] under the laws of the state, the right existed to compel an exercise of the power of taxation for its payment. Thife position, however, must be regarded as untenable, for the reason that the federal courts take judicial notice of the general laws of the several states, and by the laws of Nebraska it is made the duty of county officials to levy a tax to pay all judgments which are recovered against their respective counlies, when such judgments remain unpaid for want of sufficient funds wherewith to pay them. A prima facie right to a writ of mandamus was, therefore, made out by the information, which alleged the recovery of a judgment against Deuel county, and the failure of the county officials of that county to pay it, or to take any steps looking to its payment. The constitution of Nebraska adopted in 1875 (article 9, § 5), which is still in force, provided, in substance, that county authorities should never assess taxes for county purposes the aggregate of which should exceed $1.50 per $100 valuation, except for the payment of indebtedness existing at the adoption of the constitution, unless otherwise authorized by a popular vote. This limitation, it seems, was applicable to the indebtedness represented by the relator's judgment. In view of that provision of the organic law, the trial court found, in substance, that on January 12, 1897, the board of county commissioners of the county of Deuel met, as required by law, for the purpose of making their annual estimate of the expenses of the county for that year; that the relator’s attorney was present, and requested the board to include in their annual estimate of expenses the amount requisite to pay the relator’s judgment, interest, and costs; that such request was denied, and that said board failed to include in said estimate any sum whatsoever for the payment of said judgment. It further found that the assessed valuation of county property for the year 1896 was $816,467, that the estimated assessed value of county property for the year 1897 would not exceed the valuation for the year 1896, and that the estimated county expenses as fixed by the board in January, 1897, amounted to 814,370. It further found that it would be burdensome on the taxpayers of said county if the board of commissioners was obliged to levy a tax sufficient to pay off the entire amount of the relator’s judgment, interest, and costs, in addition to the necessary current expenses of the county for the year, but that it would not be burdensome to levy a tax sufficient to pay one-third of said judgment, interest, and costs. It accordingly concluded as a matter of law that it was the duty of the board of county commissioners to have included in their estimate of the expenses of said county for the year-1897 the amount of the relator’s judgment, and it therefore ordered a levy of taxes for the year 1897 adequate to pay one-third of said judgment and the accrued costs, amounting in the aggregate to the sum of $1,872.49. Such action on the part of the trial court necessarily required the board of county commissioners to appropriate to the payment of the relator’s judgment a portion of the county revenue for the year 1897, which the board had intended to apply exclusively to the discharge of the [268] estimated county expenses, inasmuch as a levy of 1\ per cent, on the assessed valuation of county property would not produce a fund adequate to pay one-third of the relator’s judgment and the other estimated expenses. It is strenuously urged that this was an unauthorized interference with a discretionary power Tested in the board of county commissioners. The supreme court of Nebraska, however, in State v. Weir, 33 Neb. 85, 39, 49 N. W. 785, has decided, in effect, that a board of county commissioners in that state may be compelled by mandamus to appropriate a part of the county revenue to the payment of a judgment against the county, notwithstanding the fact that the other estimated expenses are enough to absorb the entire revenue, provided the amount devoted to such object is not so large as to leave the county board practically without means to meet the necessary current expenses of the county government. The court in that case remarked, in substance, that, if such control could not be exercised over the action of the board, then it would be entirely feasible for the board to exhaust all the revenues of the county in the payment of current expenses, without making any provision for the payment of the just indebtedness of the county already incurred, and that by this means judgment creditors might be deprived of all means of enforcing the payment of their claims. We do not un-Jerstand that the doctrine enunciated in the cáse last cited has been overruled or disturbed by the recent decision in the case of State v. Sheldon (Neb.) 73 N. W. 694. It seems to us to be an entirely just and reasonable view that boards of county commissioners, under the laws of Nebraska, are not vested with such an absolute control over the disposition of the county revenues as will enable them to defeat the claims of judgment creditors by swelling the estimate for county expenses to such a sum as will exhaust the entire county revenue for a given year, or a series of years. If a judgment is recovered against a county, its board of commissioners ought to make a fair effort to pay it, — if need be, by cutting down to some extent the outlay for current expenses. Such expenses, by judicious management, are usually capable of being reduced to some extent without serious injury to the public service; and when they can be so reduced, and a. portion of the current revenue applied to the payment of judgment creditors, that course ought to be pursued, and the courts may properly require that it shall be pursued. In view of the special finding of facts contained in the present record, we understand that th*e trial court was satisfied by the evidence that the public would suffer no harm, and that the board of county commissioners of the defendant county would not be seriously embarrassed in maintaining the county government, if enough of the current revenue for the year 1897 to pay one-third of the relator’s judgment was applied to that purpose. We must accept that finding by the trial court as conclusive, and it results therefrom that the judgment awarding a peremptory writ should be affirmed. It is so ordered.