Ex parte Rowland

• Decision Date: 01 October 1881
• Citation: 26 L.Ed. 861,104 U.S. 604
• Parties: EX PARTE ROWLAND
• Court: U.S. Supreme Court

104 U.S. 604

104 U.S. 604

26 L.Ed. 861

EX PARTE ROWLAND.

October Term, 1881

PETITION for a writ of habeas corpus.

This is an application for a writ of habeas corpus to procure the discharge of Peter M. Rowland, D. C. Shultze, and R. C. Germany from the custody of the marshal of the United States for the Middle District of Alabama. The facts, as shown by the return to a rule to show cause heretofore made, may be stated as follows: —

On the 31st of December, 1868, the General Assembly of Alabama passed an act to authorize counties, towns, and cities to subscribe to the capital stock of railroad companies. The sections of the act material to the present case are the seventh, eighth, ninth, and twelfth. These are as follows:——

'SECT. 7. Be it further enacted, that the court of county commissioners of said counties in which the electors shall have voted in favor of said subscription, are hereby authorized and required to levy and assess in the same manner as is now required by law for the collection of State and county taxes, such tax as may be neces- sary to meet the interest falling due semi-annually on said bonds, and such other reasonable amount, to be determined by said court, as will pay the expenses of assessing and collecting said tax and for issuing said bonds: Provided, that in no case shall such tax exceed one per cent per annum upon the value of the real and personal property in said county, as yearly assessed and returned to the proper officers.

'SECT. 8. Be it further enacted, that the courts of county commissioners in the various counties in which such subscriptions shall have been made, as hereinbefore provided, are hereby authorized and required to require the tax-assessors and tax-collectors to assess and collect said tax. Then said courts of county commissioners shall be, and they are hereby, invested with all the powers, privileges, and rights, and bound by the same duty of proceeding against said tax-collectors and tax-assessors, and their sureties, as are vested in, granted to, and imposed upon the auditor of public accounts by law, for the amount of said taxes not assessed, collected, and paid over, or misapplied.

'SECT. 9. Be it further enacted, that the tax assessors and collectors in the various counties which shall have voted for subscription, as hereinbefore provided, are hereby invested and empowered with all the rights and remedies for collecting said tax as are now provided by law for the collection of State and county taxes, and be bound by the same duties, and that the same pains and penalties as are now prescribed by law shall attach to all persons for failing to render a tax-list or for rendering a false list.'

'SECT. 12. Be it further enacted, that the courts of county commissioners of the various counties are hereby vested with power to do any n d all acts to carry out all the provisions of this act, which are not inconsistent with the act itself, and the laws of the State and the United States.' Pamph. Laws, 1868, pp. 516, 517.

Under the authority of this act the county of Chambers issued a series of coupon bonds to the Eufaula, Opelika, Oxford, & Guntersville Railroad Company. On the 25th of May, 1875, Dix & Co., subjects of Spain, recovered a judgment against the county in the Circuit Court of the United States for the Middle District of Alabama, for $2,040.50 and costs on account of unpaid coupons cut from these bonds. Execution was issued on this judgment, and returned 'no property found,' Aug. 6, 1875. On the 19th of November, 1875, an alternative writ of mandamus was issued from the Circuit Court on the petition of Dix & Co., directed 'to P. M. Rowland, judge of probate of Chambers County, Alabama, and ex-officio judge of the court of county commissioners of said county, and J. H. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, members of said court of county commissioners,' commanding them 'to levy and assess, in accordance with the provisions of said act of the General Assembly, . . . such a tax upon the real and personal property in said county of Chambers as will satisfy the said judgment, with interest and costs, and that they continue to levy and assess said tax as aforesaid, from time to time, until said judgment is fully satisfied, with interest and costs,' or show cause on the 3d of December why they ought not to be required to do so. No cause being shown against the writ, the court, on the 17th December, issued a peremptory writ with the following command:——

'Now, therefore, you, the said P. M. Rowland, judge as aforesaid, and R. C. Germany, J. H. Forman, W. J. Grady, and D. C. Shultze, members of and composing the court of county commissioners of said county, are hereby commanded forthwith and without delay to levy and assess, and cause the collection of, in accordance with the provisions of said act of the General Assembly of said State of Alabama, such a tax upon the real and personal property in said county of Chambers as will be sufficient to satisfy said judgment, with interest and costs, and that you continue to levy and assess said tax and cause the same to be collected, as aforesaid, from time to time, until said judgment is wholly satisfied, with interest and costs of suit, and how you shall have executed this writ make known to us, to the judge of this court, at the next term of said court, on the first day of said term, to wit, on the first day of May, A. D. 1876.'

On the 24th of April, 1876, the court of county commissioners, at a regular adjourned term, made the following order, which was duly recorded:——

'On the seventeenth day of December, 1875, a peremptory mandamus was issued out of the Circuit Court of the United States at Montgomery, Ala., and executed on the commissioners of said county on the 14th of February, 1876, at the suit of Dix & Co., commanding the commissioners' court of Chambers County to levy a tax for the purpose of paying a judgment in said court in favor of said Dix & Co. against said county, rendered at the May Term, 1875, for the sum of two thousand and forty and 50/100 dollars, and fifty-one dollars costs, and that they report their action in the premises to the May Term, 1876, of said court. Now, as required by said order, it is ordered that a tax of one-fourth of one per cent, on the value of the real and personal property of Chambers County, be levied for the purpose above set forth, and that the tax-collector proceed to collect said tax as required by law.'

In obedience to, the command of the peremptory writ, the commissioners, on the 3d of May, made return that they had levied the tax as required and accompanied their return with a copy of the order entered to that effect. Nothing more was done in the suit until May 23, 1881, when, on motion of Dix & Co., the return to the peremptory writ was quashed, and a rule entered on the court of county commissioners, 'as wella § the members thereof, to wit, P. M. Rowland, judge of probate and ex-officio judge of the said court of county commissioners, and to J. H. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, who were members of and together constituted said court of county commissioners' when the peremptory writ of mandamus was served, to appear forthwith and show cause why an attachment shoul not issue against them and each of them for not obeying the command of the writ. This rule was served on Rowland, Shultze, and Germany on the 29th of May. Forman and Grady had died before the rule was entered. The surviving members of the court of county commissioners made return to the rule on the 16th of July, as follows:——

'In this case a rule nisi having, on the twenty-fifth day of May, 1881, issued out of said court, commanding P. M. Rowland, as probate judge of Chambers Co., Ala., and ex officio a member of the court of county commissioners in and for said county, and J. N. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, members of said court of county commissioners, to appear instanter, or as soon as duly served with said rule nisi, show cause why an attachment should not issue against them and each of them for violating and disregarding the peremptory writ of mandamus heretofore issued and served upon them at the suit of said Dix & Co., the said P. M. Rowland, judge of probate and ex officio a member of said court as aforesaid, begs leave to make the following return, and to show cause under oath as follows why he should not be attached for contempt of the said Circuit Court of the United States:

'He respectfully states that he was at the service of said peremptory writ of mandamus, has ever since been, and is now, judge of the court of probate in and for said county of Chambers, and as such ex officio a member of the court of county commissioners in and for said county, and that on the twenty-fourth day of April, 1876, the court of county commissioners of said county of Chambers, at a regular term of said court, levied a tax of one-fourth of one per cent on the assessed value of the real and personal property of the taxpayers of said county of Chambers, to pay off and discharge the judgment mentioned in the peremptory writ of mandamus issued and served on him and the members of said court, as aforesaid, which said levy is sufficient to pay off and discharge said judgment, together with all interest and costs of suit—the assessed value of the taxable property of said county for said year 1876 being one million six hundred and thirty-one thousand five hundred and sixty-six dollars, and the levy of one-fourth of one per cent thereon is more than sufficient to pay off and discharge the judgment, together with all interest and costs. A copy of said levy is hereto attached, marked 'Exhibit A,' and made part of this return. Affiant, said P. M. Rowland, gave notice of J. G. Weaver, the then tax-collector of said county, and requested him to collect the said one-fourth of one per cent, levied as aforesaid for the purpose aforesaid. Said J. G....