Hendrickson v. Apperson

Citation62 L.Ed. 178,245 U.S. 105,38 S.Ct. 44
Decision Date05 November 1917
Docket NumberNo. 427,427
PartiesHENDRICKSON, County Judge, v. APPERSON
CourtUnited States Supreme Court

[Syllabus from 105-106 intentionally omitted] Mr. Helm Bruce, of Louisville, Ky., for petitioner.

[Argument of Counsel from page 106-107 intentionally omitted] Mr. L. A. Faurest, of Elizabethtown, Ky., for respondent.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Seeking to enforce a long-standing judgment against Taylor county, respondent instituted this proceeding (May, 1916) in the United States District Court at Louisville against County Judge Hendrickson and justices of the peace constituting the fiscal court. The judgment was based on bonds authorized by a special act of the Kentucky Legislature approved in 1878 and 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); they had been used to compromise and take up others issued under an act of 1869, entitled 'An act to incorporate the Cumberland & Ohio Railroad Company' (1 Acts 1869, p. 463).

He asked a——

'writ of mandamus, commanding and requiring the defendants to levy a tax upon each one hundred dollars of property assessed for valuation in said county for the year 1916, sufficient to pay plaintiff's aforesaid judgment, interest and costs, and that they be required to include in the order making the levy for ordinary county purposes the aforesaid levy for the purpose of paying the aforesaid judgment, and to further direct the said W. T. Hendrickson, as county judge of Taylor county, that when he next appoints a collector whose duty it shall be to collect any or all items by a levy made by the fiscal court of Taylor county for any purpose, he shall embrace in said order of appointment a direction to the officer appointed to collect both the levy made to pay this judgment and the levy made and to be made for any item which may be levied by said fiscal court, and that said county judge shall continue to so embrace said directions in the same order of appointment until a collector is appointed who shall qualify as such collector, and said* county judge shall exact of him but one and a single bond to cover the collection of the levy made to pay this judgment, as aforesaid, and the item or items of any levy made by the fiscal court of Taylor county for any other purpose.'

Answering, defendants set up:

'That under the statutes of Kentucky, as construed by the Court of Appeals of Kentucky, the county court of Taylor county has a discretion as to whether it will appoint one person to collect all moneys due the state and the county, and taxing districts therein, or as to whether it will appoint separate collectors and designate in the order of appointment of each collector what he shall collect, including the right and discretion to appoint one collector to collect taxes levied by the fiscal court of the county for ordinary county purposes, and another collector to collect taxes levied by the fiscal court for other purposes, such as the payment of judgments against the county, and to direct in each order of appointment what taxes the appointee thereunder shall collect, and for the collection of which he should be required to give bond. And they respectfully submit that this honorable court cannot, by its judgment, control the aforesaid discretion of the county court of Taylor county, given it by the statutes of Kentucky as construed by the Court of Appeals of Kentucky.'

Having heard the cause on demurrer to the answer, the trial court directed that appropriate levies be made during 1916, 1917, and 1918, to raise funds to satisfy respondent's judgment at the same time and by the same order which should provide for other county taxes; and further:

'That said defendants and their successors in office, as the fiscal court of Taylor county, be, and they are hereby, ordered to place the tax bill for each of the aforesaid levies for collection in the hands of the sheriff of Taylor county, and his successor in office, if any, and upon default of said sheriff to execute bond and qualify for said office, then W. T. Hendrickson, county judge, and his successor in office, if any, constituting the county court of said county, is directed when he next appoints a collector whose duty it shall be to collect any or all items of any levy made, or which may hereafter be made by the fiscal court of Taylor county for any purpose, to embrace in said order of appointment a direction to such officer appointed to collect both the levy made or which may hereafter be made to pay this judgment and the levy made or which may hereafter be made for any and all items which are levied or which may be levied by said fiscal court; and said county judge, acting as said county court, shall continue to so embrace such directions in the same order of appointment until a collector is appointed who shall qualify as such collector by executing proper bond; and said county judge shall exact of him but one and a single bond to collect the levy made, or which may hereafter be made to pay this judgment as aforesaid, and the item or items for any levy made, or which may hereafter be made by said fiscal court for any other purpose. * * *'

The Circuit Court of Appeals affirmed the action of the District Court, but upon a different view, following Tucker et al. v. Hubbert, 196 Fed. 849, 117 C. C. A. 365, and Graham v. Quinlan, 207 Fed. 268, 124 C. C. A. 654.

Petitioners maintain that section 4131, Kentucky Statutes, as amended in 1906 and construed by the Court of Appeals (Commonwealth, etc., v. Moody, 150 Ky. 571, 150 S. W. 680), empowers the Taylor county court to appoint one collector of all county taxes, or, if so advised, to designate more than one and direct each to collect certain taxes, under a bond covering only those specified, and that such discretion cannot be interfered with by mandamus.

Respondent maintains that, properly construed, section 4131 permits appointment of only one such collector, and that if the 1906 amendment (Acts 1906, c. 22, art. 8, § 3) means what petitioners assert, it impairs his contract with the county, contrary to the federal Constitution. Article 1, § 10.

It is stated, without contradiction, that prior to 1906 section 4131 embodied the applicable statutory provision concerning a collector in effect when the refunding bonds were issued. See Kentucky General Statutes (1873) c. 92, art. 8, § 2; Kentucky Statutes of 1894, § 4131.

The original section follows:

'Section 4131. On the failure of the sheriff or collector to execute bond and qualify as hereinbefore provided, he shall forfeit his office, and the county court may appoint a sheriff or collector to fill the vacancy until a sheriff or collector is elected, or it may appoint a...

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    • United States
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    ...318; State ex inf. v. Curtis, 319 Mo. 316; District v. Turney, 235 Mo. 80; State ex rel. v. Hughes, 296 Mo. 1; Hendrickson v. Apperson, 245 U.S. 105, 62 L. Ed. 178; Cole v. Drainage Dist., 270 U.S. 46, 70 L. Ed. 463; Olcott v. Supervisors, 83 U.S. 382. And is invalid because of the violatio......
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    • June 23, 1933
    ...... Sydnor, 172 Mo. 318; State ex inf. v. Curtis, 319 Mo. 316; District v. Turney, 235 Mo. 80; State ex. rel. v. Hughes, 296 Mo. 1; Hendrickson v. Apperson, 245 U.S. 105, 62 L.Ed. 178; Cole v. Drainage Dist., 270 U.S. 46, 70 L.Ed. 463; Olcott v. Supervisors, 83 U.S. 382. And is ......
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