MARION COUNTY et al. v. COLER et al., 75 F. 352

PARDEE, Circuit Judge. This cause has been presented to this court on an assignment of errors complaining that the trial court refused a jury trial; that J. C. Hart, tax collector, and J. E. Cooke, tax assessor, were improperly included in the judgment awarding a mandamus, because no .demand and refusal were shown against them; and that, as to Marion county, Ihe judgment awarded was excessive, illegal, and oppressive. Tlie material facts in the case were admitted in the pleadings, and the trial in the court below was practically upon the petition and answers.

If no material faet was at issue, a jury was unnecessary. The defendants J. O. Hart, tax collector, and J. E. Cooke, tax assessor, appeared in the court below, and filed a demurrer to the plaintiffs’ petition on the ground that the same did not show any legal duty resting on the defendants to do anything which they had failed to do, and did not show any demand on them to do anything w'hich they, refused to do. \\ hat disposition was made of this demurrer in the court below does not appeal*. The court, however, in awarding judgment, directs that the said defendants, J. E.

Cooke, assessor of taxes for Marion county, and J. C. Hart, collector of taxes for Marion county, proceed forthwith, as provided by the laws for the assessment and collection of state and county taxes, to assess and collect the said taxes to be levied as aforesaid, and keep the same separate and apart from other taxes, etc.

The plaintiffs’ petition, in addition to showing their right to have a tax levied and assessed in Marion county to pay their judgment, set forth the machinery for levying and collecting taxes under the laws of Texas, by which it appears that the said tax collector and tax assessor have certain duties to perform after the county court has levied the necessary taxes. If the plaintiffs were entitled to a mandamus to compel'the levy and collection of taxes, they were certainly entitled to one which would set all the machinery necessary for the levy, assessment, and collection of taxes in motion.

It does not appear from the record that, the mandamus to officers in Marion county to levy a tax to pay the plaintiffs’ judgment is otherwise excessive, illegal, and oppressive than w'ould he any other legal remedy to compel Marion county to pay its debts. The amount of tax ordered to be levied, based upon the taxable property in the county of Marion, as admitted in the pleadings, is hardly sufficient to pay the accruing interest on the plaintiffs’ demands and provide a small amount for a sinking fund.

It would take, at the same rate of taxation on the same valuation of property, at least 20 year's to pay off the plaintiffs’ judgment. On the whole case, we find no reversible error suggested by counsel, or patent upon the record. Judgment affirmed.