In re Copenhaver

• Decision Date: 04 December 1893
• Citation: 24 S.W. 161,118 Mo. 377
• Parties: In Re Copenhaver et al
• Court: Missouri Supreme Court

24 S.W. 161

118 Mo. 377

In Re Copenhaver et al

Supreme Court of Missouri

December 4, 1893

Writ denied.

Wallace W. Lawton, Prosecuting Attorney of St. Clair county, for petitioners.

(1) The object and purpose of this imprisonment is to coerce the payment of a debt through a levy. Imprisonment for debt has been abolished in this state. Constitution of Missouri, art 2, sec. 16; Robert v. Stoner, 18 Mo. 484; Coughlin v. Ehlert, 39 Mo. 283; Ex parte Crenshaw 80 Mo. 447; Mallory v. Fox, 20 F. 409; The Blanche Page, 16 Blatch. 1. (2) The petitioners would have violated their oaths of office, and subjected themselves to criminal prosecution under the laws of Missouri, had they obeyed the order of the United States court. Revised Statutes, 1889 secs. 7653, 7654. (3) The county court has no implied power to levy a tax. Such power must be clearly given by statute and if the legislature in conferring the power imposes conditions upon which it may be exercised, such conditions must be observed before the power can be lawfully exercised. State ex rel. v. Railroad, 87 Mo. 236; Same v. Same, 92 Mo. 137; Same v. Same, 97 Mo. 297. The assessed valuation of St. Clair county is $ 4,000,000. These petitioners have no authority to exceed fifty cents on the one hundred dollars valuation. They have levied the full constitutional limit at the time of levying the regular taxes for the year 1893. Sec. 7662, art. 5, ch. 138, Revised Statutes 1889. The whole of the sum of money derived therefrom is necessary and will be used and needed in the necessary payment of current county expenses. And these justices have appropriated, apportioned and subdivided the revenues as provided in sec. 7663, art. 5, chap. 138, Revised Statutes, 1889. State ex rel. v. County Court, 101 Mo. 137. (4) The writ of mandamus and commitment require a levy to be made to pay particular judgments and particular individuals, when the court could only, in any event, even if it possessed the authority, make a levy for the purpose of paying railroad indebtedness to be applied on the whole indebtedness aggregating the sum of $ 1,000,000, which is unpaid in the form of judgments in the United States circuit courts, said judgments belonging to numerous and divers parties. State ex rel. v. Smith, 105 Mo. 6. (5) Said orders direct the rendition of a particular judgment and require the county court to exercise its judgment in a particular way, and command a court of record to exercise its discretion in a certain way, and compel the performance of a particular judicial act. A superior court may command a lower court to move, but not to move or decide a judicial act in a particular way. State ex rel. v. County Court, 68 Mo. 48; State ex rel. v. Laughlin, 75 Mo. 366; State ex rel. v. Court of Appeals, 87 Mo. 376; State ex rel. v. Garesche, 65 Mo. 489; State ex rel. v. County Court, 41 Mo. 224; High on Extraordinary Legal Remedies, sec. 533; State ex rel. v. Field, 37 Mo.App. 83. (6) The levy of fifty cents on the one hundred dollars valuation already having been made, these justices could not increase the levy, except as provided by the laws of the state of Missouri. A county court has no implied power to levy a tax; such power must be clearly and expressly given by statute. State ex rel. v. County Court, 56 Mo. 126; Same v. Same, 68 Mo. 29; Same v. Railroad, 87 Mo. 236; Same v. Same, 92 Mo. 137; Same v. Same, 97 Mo. 299; Supervisors v. United States, 18 Wall. 77; Reardon v, St. Louis County, 36 Mo. 560. (7) The petitioners are officers of the state of Missouri and are subject to the laws of the state of Missouri, and they are prohibited by the laws of the state of Missouri from doing and performing the acts and things commanded by the writs of mandamus. The acts and commands so made in said writs of mandamus were, and are, null and void, and are contrary to the constitution of the United States, contrary to the laws of the United States, and are contrary to the constitution and laws of the state of Missouri. State ex rel. v. County Court, 68 Mo. 41; Supervisors v. United States, 18 Wall. 77. (8) Petitioners are prevented from doing and from performing their duties as officers of the state of Missouri and as members of the county court of St. Clair county at the present time or at any future time. There is no other tribunal authorized under the laws of the state of Missouri to transact the business of the county and carry on the county government in the absence of these justices. There is now important business requiring the judicial determination and adjustment of said county court in said county, without the attention of which by these justices and without the holding of the regular terms of the county court as provided in section 3428, Revised statutes, 1889, and the special terms which may be called as provided by law, the county will become disorganized, bankrupt and insolvent. The court has no power to block the county government and disorganize the county. Grant v. Davenport, 36 Iowa 401; Land Co. v. County, 39 Iowa 134; French v. Burlington, 42 Iowa 618; Price v. Commissioners, 1 Whar. 1; Com. v. Commissioners, 6 Binney, 5. (9) The federal court has no power or jurisdiction to compel these justices to do the acts commanded in said mandamus named in the commitment, and has no power, authority or jurisdiction to issue any process for the imprisonment of these petitioners as members of the county court of St. Clair county, Missouri. The writ of mandamus commanded a levy and that they cause the same to be collected and to pay the same. This the county court could not do. The county court establishes the rate and the collector makes the collection. The county court has no authority over this officer. The writ of mandamus was void upon its face for this reason. Ex parte Terry, 128 U.S. 305; Ex parte Rowland, 104 U.S. 604; In re Ayers, 123 U.S. 443; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18; In re Sawyer, 124 U.S. 200; Ex parte Siebold, 100 U.S. 371; In re Taylor, 149 U.S. 164; Ex parte Virginia, 100 U.S. 339; Ex parte Fisk, 113 U.S. 713; Ex parte Yeager, 8 Wall. 85.

John B. Henderson and John H. Overall for respondent.

Black, C. J. Barclay, J., absent.

OPINION

In Banc

Habeas Corpus.

Black C. J.

The three petitioners are the justices of the county court of St. Clair county. They file in this court their petition for a writ of habeas corpus, setting out fully and at length the facts and circumstances leading to their confinement, which are to the following effect:

In 1870, the county of St. Clair issued $ 250,000 of bonds, under the act of the sixteenth of January, 1860, incorporating the Tebo and Neosho Railroad Company, and the act of twenty-first of March, 1868, to aid in the construction of the Clinton and Memphis branch. The Ninth National bank of the city and state of New York recovered two judgments against the county on some of the bonds and coupons, in the circuit court of the United States. Such proceedings were had on on these judgments that the circuit court of the United States for the western division of the western district of this state, issued a peremptory writ of mandamus in each case, commanding the petitioners as justices of the county court, "to levy, at the time of making the next annual levy, and cause to be collected, upon all the real and personal property in said county, subject to taxation, a tax for the payment of said judgment, and to pay the same according to law, and that you have said special taxes extended in a column of the regular tax book in the same manner," etc.

The writs were issued on the twenty-fifth of April and duly served on the first of May, 1893. Such other proceedings were had that on the tenth of May, 1893, the court entered the following judgment in each case: That the respondents, the petitioners here, "are guilty of contempt in disobeying as well as continuing to disobey the said peremptory writ of mandamus and the order and command therein, and for such contempt each of said respondents is here and now sentenced by this court to imprisonment in the county jail in the county of Jackson * * * until such a time as they shall comply with such mandate and order of this court, or until otherwise discharged therefrom by the order of this court, or otherwise pursuant to law."

Pursuant to these judgments, commitments were issued, by virtue of which the petitioners were and now are confined in the jail of Jackson county, and from which imprisonment they seek to be discharged by the writ of habeas corpus.

We have not set out the various averments made in the petition for the purpose of showing that the bonds were issued without authority of law and should have been held illegal and void, because the question as to the validity of the bonds is not an open one. The circuit court of the United States had undoubted jurisdiction of the parties to, and the subject-matter of, those suits, and the judgments are final and conclusive. We have no right or power to go behind the judgments; and, for all the purposes of this application, it must be assumed that the bonds were, and are, valid obligations of the county.

Counsel for the petitioners insists in an elaborate brief, and earnestly insisted on the argument of this cause, that the petitioners are illegally imprisoned for various reasons. Some of the reasons assigned show, and only show, that the circuit court of the United States committed error in awarding the peremptory writs of mandamus. Such reasons would not justify any court in releasing the petitioners on habeas corpus ; for that writ cannot be used as a mere writ of error. This is well settled law. Other of the reasons assigned for the discharge of the petitioners strike much deeper. Thus, it is insisted that the...