Hicks v. Cleveland

• Decision Date: 07 February 1901
• Docket Number: 367.
• Citation: 106 F. 459
• Parties: HICKS, County Auditor, et al. v. CLEVELAND.
• Court: U.S. Court of Appeals — Fourth Circuit

106 F. 459

HICKS, County Auditor, et al. v. CLEVELAND.

No. 367.

United States Court of Appeals, Fourth Circuit.

February 7, 1901

J. A McCullough, for plaintiff in error.

H. J Haynsworth and John K. Shields, for defendants in error.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

SIMONTON Circuit Judge.

This case comes up on writ of error to the circuit court of the United States for the district of South Carolina. Vannoy Cleveland, the defendant in error, obtained a judgment in the circuit court of the United States for the district of South Carolina on 11th day of August, 1897, in the sum of $1,568.41 against Dunklin township, in the county of Greenville, S.C. Execution having been issued on this judgment, it was returned nulla bona. Thereupon Vannoy Cleveland filed his petition in the said circuit court, praying that a writ of mandamus do issue to W. P. Hicks, the county auditor of Greenville county, and to G. L. Walker, the treasurer of said county. The petition sets forth: That the township of Dunklin is a territorial division of the state of South Carolina situate in Greenville county. That it is a corporation created under an act of assembly of that state to charter the Greenville & Port Royal Railroad Company, approved December 23, 1882, and an act amending the same approved December 24, 1884. This amending act changed the name of the corporation to that of the Atlantic, Greenville & Western Railway. That, being the holder of certain coupons cut from bonds of said township, issued under the provisions of said acts, he brought suit upon said coupons, aggregating $2,016, in the circuit court aforesaid. That at the August term of said court, 1897, the cause was tried, and a verdict found for petitioner in the sum of $1,512, with interest from August 11, 1897, and his costs, $56.40. That judgment was entered forthwith on said judgment for such principal sum, interest, and costs, and lodged with the marshal. That the execution has been wholly unsatisfied. The petition further alleges: That by the act of 1885, above referred to, it is, among other things, provided 'that for the payment of the interest on such bonds as may be issued by said counties, cities, towns, or townships, the county auditor, or other officer discharging such duties, or the city or town treasurer, as the case may be, shall be authorized and required to assess only upon the property of said city, town, county or township such per centum as may be necessary to pay said interest of said sum of money so subscribed, which shall be known and styled in the tax book as said railroad tax, which shall be collected by the treasurer under the same regulations as are provided by law for the collection of taxes in any of the counties, cities, towns or townships so subscribing, and which shall be paid over by the said treasurer to the holders of said bonds, and the said interest shall become due on presentation of the coupons.' 19 St.at Large S.C.p. 240, Sec. 9. That at the time of the rendition of said judgment, and also at this time, W. P. Hicks was, and still is, the auditor of Greenville county, and, under the terms of said act, charged with the duty of assessing upon the property in Dunklin township the percentage necessary to pay the said coupons, and that he has filed to do so, after due demand and notice, and that G. L. Walker is treasurer of the said county. That the officers of Greenville county who have been charged with the assessment and collection of the taxes for the payment of coupons upon the said township bonds have for years declined to levy and collect taxes to pay the interest upon said bonds, claiming to have acted upon a decision of the state of South Carolina. 'That any further demand upon the said officers to levy and collect taxes for the payment of the interest on said bonds would, in petitioner's judgment, be useless, and that your petitioner's remedy is by mandamus alone. ' The prayer of the petition is that a writ of mandamus be issued, directed to the said auditor and the said treasurer, directing and commanding the said auditor to assess upon all the property in the township of Dunklin a sufficient per centum to pay the said judgment, with interest and costs, and commanding the said county treasurer to collect the said sum of money and to pay it over upon said judgment until the same shall be wholly satisfied.

Upon filing the petition a rule was issued against W. P. Hicks, county auditor of Greenville county, and G. L. Walker, treasurer of said county, to show cause on a day certain why said mandamus do not issue. Due return was made. The auditor, W. P. Hicks, made his return by way of demurrer, as follows:

'He demurs to the rule and the petition upon which the same is based, upon the following grounds: Because the action, as to him is premature, for the reason that he has no present or existing duty to perform in the premises; it not being his duty, under the law, to collect any tax until there has been a legal assessment thereof by the country auditor, which assessment has never been made. Because there is an improper joinder of causes of action herein; one action being against the county auditor to require him to make an assessment, and the other against this respondent to require him to collect the said tax, when, as a matter of law, this respondent and the said auditor have separate and distinct duties to perform.'

The treasurer answered in full, setting out 22 reasons why the mandamus do not issue. The rule and returns were heard by the circuit court. The demurrer of W. P. Hicks, county auditor, was overruled, and the return of G. L. Walker was held to be insufficient. The judgment of the court concluded as follows:

'It is therefore ordered that the demurrer of G. L. Walker, treasurer for Greenville county, and the return of W. P. Hicks, auditor for Greenville county, be, and the same are hereby, overruled and dismissed. It is further ordered that a writ of mandamus do issue out of and under the seal of this court, directed to G. L. Walker, treasurer for Greenville county, and his successors in office, and W. P. Hicks, auditor for Greenville county, and his successors in office, commanding them forthwith as follows: That the said auditor and his successors in office do assess upon all the property in the township of Dunklin a sufficient per centum to pay the said judgment set forth in the petition, with interest from the date of its rendition, and costs, and commanding the said county treasurer and his successors in office to collect the said sum of money and to pay it over upon the said judgment until the same shall be wholly satisfied, and that the said officers do discharge their said duties so commanded them at the time when they are respectively required by statute to assess and collect taxes for state and county purposes.'

A writ of error was obtained, and the case is here on 28 assignments of error. The first two of these allege error in overruling the demurrer. It will be noted here that the record shows that this is the demurrer of W. P. Hicks, the county auditor. The demurrer itself shows that it is intended to be the demurrer of the county treasurer. Two errors are assigned: First, that as to the treasurer it is premature, his duties to collect the tax not arising until the auditor assesses it; and, second, because of the improper joinder of these two officers, their duties being separate and distinct.

Section 9 of the act of 1885 amending the charter of the Greenville & Port Royal Railroad Company, and providing therein for township subscriptions (19 St.at Large S.C.p. 240), makes provision for the payment of interest on the township bonds, and this duty is imposed both on the auditor and treasurer; the one assessing and the other collecting the tax. In Labette Co. Com'rs v. U.S., 112 U.S. 217, 5 Sup.Ct. 108, 28 L.Ed. 698, it is held that one writ of mandamus against all officers concerned in the separate but co-operative steps for levying and collecting a tax is the proper and effective remedy to enforce its collection. That case is on all fours with this, and meets and decides the very question raised in this demurrer.

Before entering upon an examination of the other assignments of error, we assume that the judgment upon which this mandamus is based is conclusive as to the validity of the bonds, and of the contract under which they were issued. Harshman v. Knox Co. Ct., 122 U.S. 316, 7 Sup.Ct. 1171, 30 L.Ed. 1152. Being coupon bonds payable to bearer, they are negotiable instruments (Gelpecke v. City of Dubuque, 1 Wall. 175, 17 L.Ed. 520); and they and their coupons are protected by all the legislation existing at their creation and their date of issue, and this protection follows them in the hands of every bona fide holder for value. The judgment is also conclusive as to the fact that the plaintiff at law was a bona fide holder for value of the coupons sued upon. Township of Ninety-Six v. Folsom, 30 C.C.A. 657, 87 F. 304; Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865; City of San Antonio v. Mehaffy, 96 U.S. 312, 24 L.Ed. 816.

The 4th, 5th, 8th, 12th, 16th, 18th, 19th, and 20th assignments of error proceed upon the ground that the legislature of South Carolina has forbidden its officers to levy and collect the tax to pay this, and claims of the same character,-- has in fact made it a misdemeanor for them to do so,-- and that mandamus, under these circumstances, will not lie.

The purpose of the general assembly in passing the act to amend the charter of the Greenville & Port Royal Railroad Company approved December 24, 1885 (19 St.at Large S.C.p. 237), was to promote the construction of that road. To accomplish this, it authorized and encouraged townships along the...