Cottle v. Union Pac. R. Co.

• Citation: 201 F. 39
• Decision Date: 19 September 1912
• Docket Number: 3,565.
• Parties: COTTLE, County Treasurer, et al. v. UNION PAC. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

201 F. 39

COTTLE, County Treasurer, et al. v. UNION PAC. R. CO.

No. 3,565.

United States Court of Appeals, Eighth Circuit.

September 19, 1912

Walter B. Dunton, of Green River, Wyo., and D.A. Reavill, of Rock Springs, Wyo. (N. E. Corthell, of Laramie, Wyo., on the brief), for appellants.

John W Lacey, of Cheyenne, Wyo. (Herbert V. Lacey, of Cheyenne Wyo., on the brief), for appellee.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

The Union Pacific Railroad extends through Sweetwater county Wyo., and the company owns a large amount of land in that county. The entire levy upon its property in the county for 1909 was $70,813.64. Of this it paid $62,576.48, and brought this suit against the county treasurer and ex officio county collector and the board of county commissioners to perpetually enjoin the collection of the balance of $8,237.16. A decree was rendered for the company and the treasurer, collector, and the board of county commissioners appeal. The taxes sought to be enjoined are of two classes First, a levy for bond redemption purposes; second, a levy for general county, school, and library purposes.

As all the statutes of Wyoming here material have been carried into the Complied Statutes of Wyoming for 1910, references will be made thereto. The county of Sweetwater is a municipal corporation.

'On the first Monday of September of each year, the board of county commissioners shall, by an order to be entered of record among their proceedings, levy the requisite taxes for the year, and the same may be levied any time prior to the first Monday of September, if the statement and notice required by section 2340 has been received from the auditor. ' Compiled Statutes of Wyoming, Sec. 2343.

The statement and notice required by section 2340 of the Compiled Statutes having been received on August 31, 1909, the board levied 6/10 of a mill for bond redemption purposes and 3 1/2 mills for general county, 1 3/10 mill for school and 13/100 of a mill for library, a total of 4 93/100. Subsequently, and after the first Monday in September, the board changed 24/100 of a mill from the general fund to the bond levy. There is doubt about its power to make such change after the first Monday in September. Standard Coal Co. v. Independent District of Angus, 73 Iowa, 304, 34 N.W. 870. This resolution was, however, subsequently rescinded, and, if the board had power to pass it, it undoubtedly had power to rescind it. With limitations not necessary to set out in detail, the county board was authorized to levy for general county expenses, including the school tax, not exceeding 12 mills, for schools not more than 3 mills, and for library not more than 1/2 mill. At the time the bonded debt of Sweetwater county was contracted the following law was in force:

'Sec. 1125. The board (of county commissioners) shall cause to be levied annually upon all taxable property of the county, in addition to other authorized taxes, a sufficient sum to pay the interest on all bonds disposed of, in pursuance of the provisions of this chapter, and shall at least one year before such bonds become due, and in time to provide means for their payment, cause to be levied a sufficient additional sum to pay such bonds as they become due, and all such taxes shall be levied, assessed and collected, as other county taxes, until the bonds so issued are fully paid, including the interest thereof. * * * '

Before the levy of 1909 the following law had been enacted:

'Sec. 2341. It shall be unlawful for the state board of equalization or any board of county commissioners, county board of equalization, county officer, city council, or other officer authorized, or whose duties it may be under the laws of the state to direct, fix or make any tax levy on the assessed valuation of property for purposes of taxation, to direct, fix or make any levy upon the assessed valuation of property within their jurisdiction that will produce a sum of money increasing the total sum produced by the tax levied upon such property for the previous year more than ten per cent.; Provided, that the electors of any county, city, town or school district may, by a direct vote at any general or special election held as provided by law in counties, cities, towns, or school districts respectively, authorize an increase in any levy not in excess of the limitation fixed by the Constitution and laws of this state.

'Sec. 2342. The above section shall in no way limit the amount of any levy necessary to be made for the purpose of paying any judgment or bonded debt against any county, municipality or school district. It shall be unlawful for any officer of any county, city or municipality within the state to enter upon the tax roll of such county, city or municipality, any levy made in violation of the provisions of the preceding section. Any officer of any board, commission, or other officer, who shall violate any of the provisions of the preceding section, shall upon conviction be fined in a sum not less than one hundred dollars, nor more than five hundred dollars, for such offense, and any such conviction shall be sufficient grounds for his removal from office.'

In passing to the consideration of the bond redemption levy, attention is called to the fact that, being unable to limit the taxes for the payment of bonds below that authorized at the time they were issued if the then authorized limit was needed for their payment, it was expressly provided in section 2342 that the above section 2341 shall in no way limit the amount of any levy necessary to be made for the purpose of paying any bonded debt. Under section 1125 separate levies had been made for the bond redemption fund and its bond interest fund. The principal of the bonded debt of the county was $20,900, the last of which became due November 3, 1911. The interest on these bonds and the other interest owed by the county on bonds amounted to $1,868. The county then had on hand in its bond interest fund $3,637.89, so that the money collected for interest in prior years exceeded the amount necessary to pay the interest by $1,769.89. The amount then in the bond redemption fund was $10,095.30. If an excessive interest fund had been collected in prior years, it should have been attacked before collection, and we do not find that there was any authority to compel funds collected for interest to be used in payment of principal.

The assessed value of Sweetwater county for 1909 was $18,981,753, and from this was deducted as improperly assessed $1,126,551, leaving the net amount $17,855,202. Of this amount $2,743,841 was upon what are known as migratory sheep; that is, sheep that graze in one county part of the year and in others the balance. The net assessment after all corrections and deducting migratory sheep was $15,111,361.

'Sec. 2383. Migratory Stock Fund. All taxes collected under the provisions of this chapter shall be held by the county treasurer collecting the same, in a special fund-- to be known as 'The Migratory Stock Fund'-- and such fund shall be paid out and disbursed as provided by section 2382 and not otherwise. Payments from said fund shall be made first to the state. Second, to the several counties interested. Third, the balance remaining in said 'The Migratory Stock Fund' after making the payments hereinbefore provided, shall be covered into the general fund of the county. ' Revised Statutes of Wyoming 1910.

It thus appears that the law, while providing for levying upon these sheep for various purposes, provided the whole amount left to the county should be covered into the general fund instead of distributed. This left for actual appropriation to bond redemptions from the new levy only 6/10 of a mill on $15,111,361 or $9,066.81. There was to be paid upon the principal of the bonded debt above the amount of the sinking fund $10,804.70, so the amount realized from the taxes, if all were collected, would be $1,737.89, less than the amount due. If the entire interest fund was applied to bond redemptions, the levy would produce $32 too much. This would be about 1/500 of a mill in excess of the amount required. The law cares not about very trifling matters.

It is contended that as $1,000 of the bonded debt did not mature until March 1, 1911, and $5,300 not until November 3, 1911, a tax levy in 1910 would have been in ample time to have met these obligations. The statute required the levy to be made at least one year before the bonds became due, and in time to provide means for their payment. There are but two limitations as to time of this levy. First, it shall be made at least one year before the bonds become due; and, second, it shall be made in time to provide means for their payment. The second provision clearly contemplates that it may be necessary to levy more than a year before the maturity of the bonds. Under the law taxes become due and payable after the third Monday in September, and become delinquent on December 31st of each year. It does not appear how soon they are usually collected by distress and sale if not voluntarily paid. In any event, it was for the county board to determine whether a 1910 levy would actually be paid in time to meet these bonds at maturity, and it determined that such levy could not be relied on.

The levy for bond redemption purposes was valid. It is claimed that in applying section 2341 of the Wyoming Statutes migratory stock should not be considered. In this we do not concur. Taxes levied upon such stock and turned over to other counties may be regarded as collected as trustee or agent for the other county, but money from this source actually collected and retained by the county is as much a part of its revenues as any other taxes.

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