Graham v. Quinlan

• Decision Date: 30 June 1913
• Docket Number: 2,488,2,489.
• Citation: 207 F. 268
• Parties: GRAHAM, County Judge, v. QUINLAN. SAME v. MURPHY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 268

GRAHAM, County Judge, v. QUINLAN.

SAME v. MURPHY et al.

Nos. 2,488, 2,489.

United States Court of Appeals, Sixth Circuit.

June 30, 1913

Ernest Macpherson, of Louisville, Ky., for plaintiff in error.

George Du Relle, J. B. Baskin, Alex P. Humphrey, James S. Pirtle and Edmund F. Trabue, all of Louisville, Ky., for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

These were mandamus suits brought in the court below to enforce payment of two of its judgments. Peremptory writs were granted, and the defendants prosecute error.

The cases present similar facts, were heard together here, and will be disposed of in this opinion. The judgment in the Quinlan Case was for $89,195.63, with interest, and $289.12 accrued costs, and that in the Murphy Case was for $108,718.20, with interest, and $789 accrued costs. These judgments were based upon bonds and past-due coupons of Green county, Ky., issued under an act of 1869 entitled 'An act to incorporate the Cumberland & Ohio Railroad Company.' 1 Acts 1869, p. 463. The bonds were held valid, and the judgments below were respectively affirmed, in Green County v. Quinlan, 211 U.S. 582, 29 Sup.Ct. 162, 53 L.Ed. 335, and Green County v. Thomas, Ex'r, 211 U.S. 598, 29 Sup.Ct. 168, 53 L.Ed. 343. See, also Quinlan v. Green County, 205 U.S. 410, 27 Sup.Ct 505, 51 L.Ed. 860, where one of two questions certified by this court to the Supreme Court concerning the bonds was answered. The Quinlan Case, as decided by this court, is reported in 157 F. 33, 84 C.C.A. 537, 19 L.R.A. (N.S.) 849, and the Thomas Case, as decided here, appears in 159 F. 339, 89 C.C.A. 405. The judgment recovered in the latter case is the one involved in the present Murphy Case. Nothing could be added to accentuate the obligation of the county to pay these judgments.

It could serve no useful purpose to recite even the substance of the various proceedings which resulted in the levies of the taxes and the orders made for their collection under the writs issued by the court below. Those proceedings were, we think, well within the liberal provisions made for amendments by both the Kentucky and federal statutes. Carroll's Ky. Codes (5th Ed.) Secs. 134, 135; section 954, Rev. St. (U.S. Comp. St. 1901, p. 696); Mitchell v. Toledo, St. L. & W.R. Co., 197 F. 528, 534, 117 C.C.A. 24 (C.C.A. 6th Cir.). It needs only to be said that on June 13, 1910, a writ of mandamus was ordered to be issued in each case against the defendants therein named, who composed the fiscal court of the county, requiring them to assemble as such court within a specified time and to levy a tax upon all the taxable property of the county at a rate sufficient to pay each judgment, interest, and costs, and the costs of collecting the taxes, and to certify the levy of the tax for collection 'to such officer as is or may be authorized by law and the orders of said fiscal court to collect the taxes imposed by law for regular county purposes upon the property subject to taxation in said Green county. ' The fiscal court assembled and levied the necessary taxes; and, there being no sheriff, the court certified the levy to certain collectors, successively, who for one reason or another failed to collect. November 6, 1912, a further writ was ordered to be issued in each case against Elliott Graham, county judge of Green county, one of the defendants below, commanding him:

'Whenever a sheriff or collector of county taxes, or other officer authorized by law to collect the taxes imposed for regular county purposes upon the property subject to taxation in said Green county, shall be elected or appointed, and shall qualify as such officer, to embrace in the order of appointment or qualification a direction to the officer elected or appointed and qualified to collect both the tax heretofore levied to pay plaintiff's said judgment and the tax levied or to be levied for regular county purposes, and to require of such sheriff, collector, or other officer the execution of one bond to secure the collection of each and all of said taxes.'

This enlargement of the order for collection over that of the first order, before quoted, seems from the record to have become necessary to the execution of the original purpose to require both the ordinary county levy and these judgment levies to be collected by the same officer under a single order of appointment and bond.

The cases thus presented are ruled by the decision of this court in Tucker v. Hubbert, 196 F. 849, 117 C.C.A. 365. We shall as far as necessary state the reasons for this conclusion, with the objections urged against the application of the decision:

(1) The judgment as affirmed in that case was based on bonds issued under a special act, entitled 'An act for the benefit of Taylor county, empowering it to compromise its debts, issue bonds, and levy and collect taxes to pay the same' (1 Acts 1877-78, p. 554); but those bonds were issued and in part used by way of compromise to take up bonds previously issued under the special act that is involved here-- that is, 'An act to incorporate the Cumberland & Ohio Railroad Company,' section 12 of that act having authorized the construction of a railroad through several counties, including Taylor and Green (1 Acts 1869, pp. 463, 468).

(2) These acts of 1869 and 1878 differ as respects the levy and collection of taxes to pay the bonded indebtedness they respectively authorized. Under the former, the levy in terms is to be made by the county court (composed of the county judge and the county justices of the peace), or, 'if preferred,' by the county judge alone; while under the latter act such levy and collection were authorized through action of the circuit court. However, for reasons stated later, it is not perceived that the two remedies sanctioned in Tucker v. Hubbert (the one given by the act of 1878, and the other through the fiscal court) differ in principle from the two remedies open here.

(3) True, by Act Feb. 27, 1880 (1 Acts 1879-80, p. 248), the remedy given for the collection of the bonds and coupons authorized by the act of 1869, was in terms made 'exclusive of all other remedies'; but it is averred in each of the petitions in the instant cases, and nowhere denied in the records, that the bonds merged in the present judgments were issued on the 1st day of April, 1871, some nine years before the remedy given by the act of 1869 was so made 'exclusive.' Attention was called in the argument, for a purpose to which we shall allude later, to...