Holt County v. National Life Ins. Co., 867.

• Decision Date: 19 April 1897
• Docket Number: 867.
• Citation: 80 F. 686
• Parties: HOLT COUNTY et al. v. NATIONAL LIFE INS. CO. OF MONTPELIER, VT.
• Court: U.S. Court of Appeals — Eighth Circuit

80 F. 686

HOLT COUNTY et al. v. NATIONAL LIFE INS. CO. OF MONTPELIER, VT.

No. 867.

United States Court of Appeals, Eighth Circuit.

April 19, 1897

This writ of error was sued out by the county of Holt, in the state of Nebraska, and its county clerk, county treasurer and board of supervisors, the plaintiffs in error, to reverse a judgment of mandamus against them, which directed them to collect and pay over a tax of 50 mills on the dollar which had been levied upon the property in school district No. 44 in that county, to pay a judgment in favor of the National Life Insurance Company of Montpelier, Vt., which had been rendered against that district. The case was tried by the court upon an agreed statement of facts, and the only question presented here is whether those facts warrant the judgment. The facts were these: On November 26, 1894, the National Life Insurance Company of Montpelier, Vt., recovered a judgment in the court below for $5,023.88 against school district No. 44 in the county of Holt. In the case of the United States, on the relation of this insurance company against school district No. 44, its director, moderator, and treasurer, the same court subsequently adjudged that the school district and its officers should make and report to the county clerk and board of supervisors of the county of Holt, annually, for five years, the amount of tax upon the property in that district necessary to be levied and collected to pay one-fifth of the amount due on this judgment, with interest and costs, and that, in case the necessary steps should not be taken to make such reports and to levy and collect such taxes until the entire judgment should be paid, a peremptory writ of mandamus should issue to compel the performance of these duties. On June 25, 1895 pursuant to this judgment, the following taxes were voted by this school district for the ensuing year, viz.: For teachers' fund 15 mills on the dollar; for fuel, repairs, books, and supplies, 10 mills on the dollar; for judgments against the district, 50 mills on the dollar,-- total, 75 mills on the dollar; and the school board of that district certified these taxes to the county clerk of Holt county, and he duly levied them upon the property treasurer of the county for collection, pursuant to the command of the judgment and the provisions of the statutes of Nebraska. On February 7, 1896, the Fremont, Elkhorn & Missouri Valley Railroad Company, a corporation, and one of the taxpayers in school district No. 44, refused to pay the tax of 50 mills which had been levied on its property to pay the judgment, on the ground that that levy was illegal, and thereupon the board of supervisors of Holt county passed a resolution to the effect that the county treasurer of that county might fail to collect that tax, and that the county attorney of that county might enter into an amicable suit with the railroad company upon an agreed statement of facts, to determine the legality of the levy of this 50 mills, which had been made pursuant to the judgment of the federal court. On February 17, 1896, the railroad company brought a suit in one of the state courts in Nebraska against the plaintiffs in error in this suit, and prayed for an injunction forbidding them to collect this tax. The railroad company was careful not to disclose to that court in its complaint in that suit the controlling fact that this tax had been levied under the judgment of the circuit court of the United States, and the state court undoubtedly acted in ignorance of that fact. The plaintiffs in error demurred to this complaint, and an injunction was issued against them as prayed. On May 28, 1896, the United States, on the relation of the National Life Insurance Company of Montpelier, Vt., brought this action, and prayed that the county of Holt and its officers be commanded to collect and pay over the tax which had been levied to pay the judgment of the insurance company against the school district, and, after answer and trial, the prayer of the petitioner was granted.

William B. Sterling, B. T. White, and H. E. Murphy, for plaintiffs in error.

Lionel C. Burr and Charles L. Burr, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The only ground on which it is contended that the judgment below in this case was erroneous is that the tax of 50 mills on the dollar, which was levied on the property in school district No. 44, pursuant to the judgment of mandamus against that district, to raise money to pay a part of the money judgment against it, was in excess of the limitation prescribed by the statutes of Nebraska for the annual levy of taxes by that district, and was therefore illegal and void. The legislature of the state of Nebraska by 'An act to provide for the payment of judgments recovered against municipal corporations,' which took effect on February 18, 1867, provided:

'4112. That whenever any judgment shall be obtained in any court of competent jurisdiction in this territory for the payment of a sum of money against any county, township, school district, road district, town or city board of education, or against any municipal corporation, or when any such judgment has been recovered and now remains unpaid, it shall be the duty of the county commissioners, school district board of education, city council, or other corporate officers, as the case may require, to make provisions for the prompt payment of the same.

'4113. If the amount of revenue derived from taxes levied and collected for ordinary purposes shall be insufficient to meet and pay the current expenses for the year in which the levy is made, and also to pay the judgment remaining unpaid, it shall be the duty of the proper officers of the corporation, against which any such judgments shall have been obtained and remaining unsatisfied, to at once proceed and levy and collect a sufficient amount of money to pay off and discharge such judgments.

'4114. The tax shall be levied upon all the taxable property in the district, county, township, town, or city, bound by the judgment, and shall be collected in the same manner and at the same time provided by law for the collection of other taxes.

'4115. The corporate officers whose duty it is to levy and collect taxes for the payment of the current expenses of any such corporation, against which a judgment may be so obtained, shall also be required to levy and collect the special tax herein provided for, for the payment of judgments.

'4116. If any such corporate authorities whose duty it is, under the provisions of this act, to so levy and collect the tax necessary to pay off any such judgment, shall fail, refuse or neglect to make provisions for the immediate payment of such judgments, after request made by the owner, or any person having an interest therein, such officers shall become personally liable to pay such judgments, and the party or parties (interested) may have an action against such defaulting officers to recover the money due on the judgment, or he or they having such interest may apply to the district court of the county in which the judgment is obtained, or to the judge thereof in vacation, for a writ of mandamus to compel the proper officers to proceed to collect the necessary amount of money to pay off such indebtedness, as provided in this act; and when a proper showing is made by the applicant for said writ, it shall be the duty of the court or judge, as the case may be, to grant and issue the writ to the delinquents, and the proceedings to be had in the premises shall conform to the rules and practice of said court, and the laws of this territory, in such cases made and provided.'

Cobbey's Consol. St. Neb. 1891.

By 'An act to establish a system of public instruction for the state of Nebraska,' approved March 1, 1881, which took the place of similar acts passed or amended in 1867, 1869, 1871, 1873, and 1875, the same legislature enacted that:

'3542. The legal voters at any annual meeting shall determine by vote the number of mills on the dollar of the assessed valuation which shall be levied for all purposes-- except for the payment of bonded indebtedness and purchase or lease of school house-- which number shall not exceed twenty-five (25) mills in any year. The tax so voted shall be reported by the district board to the county clerk, and shall be levied by the county board, and collected as other taxes.

'3543. The legal voters may also, at such meeting, determine the number of mills, not exceeding ten mills on the dollar of assessed valuation, which shall be expended for the building, purchase or lease of school house in said district, when there are no bonds for such purpose, which amount shall be reported, levied and collected as in the preceding section; provided, that the aggregate number of mills voted shall not exceed

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