Commissioners v. Sellew

• Decision Date: 01 October 1878
• Citation: 99 U.S. 624,25 L.Ed. 333
• Parties: COMMISSIONERS v. SELLEW
• Court: U.S. Supreme Court

99 U.S. 624

25 L.Ed. 333

COMMISSIONERSv.SELLEW.

October Term, 1878

ERROR to the Circuit Court of the United States for the District of Kansas.

The facts are stated in the opinion of the court.

Mr. Matt.H. Carpenter for the plaintiff in error.

Mr. E. Stillings, Mr. L. B. Wheat, and Mr. T. A. Hurd, contra.

MR. CHIEF JUSTICE WAITEdelivered the opinion of the court.

In the State of Kansas counties are bodies corporate and politic, capable of suing and being sued.Their powers are exercised by boards of county commissioners chosen by the electors.The name by which they can sue or be sued is the 'Board of County Commissioners of the County of _____.'In legal proceedings against a county, process is served on the clerk of the board.1 Dassler's Kans. Stat. 217-221, sects. 1, 3, 5, 6, 9.

The boards of county commissioners are authorized 'to apportion and order the levying of taxes as provided by law'(1 id. 224, sect. 16, sub. 4), and they are required to meet on the first Monday in August of each year to 'estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes they may be required by law to levy.'2 id. 1024, sect. 83.

Whenever a judgment is rendered against the board of county commissioners of a county, no execution shall issue, but the judgment 'shall be levied and collected by tax, as other county charges, and, when so collected, shall be paid by the county treasurer to the person to whom the same shall be adjudged, upon the delivery of the proper voucher therefor.'1 id. 221, sect. 8.

By an act of the legislature of the State, approved Feb. 10, 1865, and proceedings thereunder, the board of county commissioners of the county of Leavenworth were authorized to subscribe to the capital stock of the Leavenworth and Missouri Pacific Railroad Company, and to issue bonds in payment of the subscription.Under this authority a subscription was made and bonds issued, bearing date July 1, 1865, and falling due July 1, 1875.

On the 29th of November, 1875, Sellew, the defendant in error, recovered judgment in the Circuit Court of the United States for the District of Kansas against the board of county commissioners of the county of Leavenworth upon part of the bonds so issued for $19,923.40 and costs of suit.On the 9th of October, 1877, he made known to the court, by affidavit, that on the 6th of August previous he had demanded of the board of county commissioners that they should levy a tax to pay his judgment, and that they had failed to do so.He then obtained from the court an alternative mandamus directed to the board of county commissioners, and to John S. Van Winkle, Ebenezer W. Lucas, and William S. Richards, individual members of the board, directing that they levy the tax immediately, or show cause, on the 26th of November, 1877, why it had not been done.Copies of this writ were in due form served on the clerk of the board and upon each of the individual members.On the return-day the board, appearing for the purpose of the motion only, moved to quash the alternative writ because it did not state facts sufficient to authorize the issue of a peremptory writ, and the several individual members answered, stating that the board met on the first Monday in August, 1877, and estimated and determined the amount of money to be raised by taxation for all purposes for the year 1877; that having completed their labor, they adjourned sine die; that in due time afterwards the tax lists were made out, and on the 1st of November put in the hands of the treasurer for collection; that a part of the taxes so levied and collected had already been paid; that the judgment mentioned in the alternative writ was not rendered on any of the kinds of indebtedness mentioned in the proviso of sect. 1, c. 90, of the Session Laws of 1876; and that on the 6th of November, at the general election of county officers, Van Winkle and Lucas were not re-elected as members of the board, but that other persons were elected in their places, and that by reason thereof they would not be members of the board after their present term expired.

Chapter 90 of the Session Laws of 1876 was an act relating to taxation in Leavenworth County, and did not specially authorize a levy of taxes to pay this judgment, but it declared that no more taxes than were therein provided for should...