STRYKER v. BOARD OF COM'RS OF GRAND COUNTY, COLO., 77 F. 567

THAYER, Circuit Judge, after stating the case as above, delivex*ed the opinion of the court. It is a familiar doctrine that, the federal courts have no power to issue a writ of mandamus commanding state officers to levy a tax, or to do any other act, unless such power is exercised as ancillary to a jurisdiction already acquired. “The power to issue a writ of mandamus as an original and independent proceeding does not * * * belong to tlie circuit courts” of the United States.

It is a power which' is derived solely from the fact that jurisdiction to hear and decide a given case has already attached, and that the issuance of the writ is necessary to render that jurisdiction effectual. Bath Co. v. Amy, 13 Wall. 244; Graham v. Norton, 15 Wall. 427; County of Greene v. Daniel, 102 U. S. 187; Davenport v. County of Dodge. 105 U. S. 237; McIntire v. Wood, 7 Cranch, 504.

Equally well settled is the further proposition that a writ of mandamus will not be issued requiring a state officer to levy a tax, or to do any other specific act, unless authority for the doing of that act can be found either in the express or implied provisions of some local statute. As was said, in substance, by the supreme court in Supervisors v. U. S., 18 Wall. 71, 77, and in U. S. v. Macon Co., 99 U. S. 582, 591, and by this court in Board v. King, 32 U. S. App. 1, 14 C. C. A. 421, and 67 Fed. 202: State officers have no powers except such as have been conferred upon them by the laws of the state.

They cannot be armed by the mandate of any court with an authority which they do not already possess; and no court, state or federal, can compel a municipal corporation to levy a tax which the laws of the state do not authorize it to levy. Moreover, it is not the office of a writ of mandamus to create rights or impose duties; its sole function is to compel the performance of those duties which already exist.

It has been held in some cases that when, for the purpose of aiding in the execution of some public work, a municipal corporation has been empowered to borrow money and to issue bonds, a power will be implied to levy a tax for an amount adequate to discharge such obligations, although no such power appears to have been expressly granted when the debt was authorized. U. S. v. New Orleans, 98 U. S. 381; Wolf v. New Orleans, 103 U. S. 358; Loan Ass’n v. Topeka, 20 Wall. 655; Ralls Co. Ct. v. U. S., 105 U. S. 733.

But when the laws of a state do prescribe the method of paying an indebtedness which a municipal corporation has contracted, and limit the rate of taxation for that purpose, such method of payment is exclusive. No court has the power to vary the mode of payment, or to increase the rate of taxation, although it may be that the means provided by the legislature for canceling the indebtedness are defective or insufficient.

Persons who become purchasers of the securities of a municipal corporation, whether they are bonds or warrants, must take notice of any limitations that have been imposed upon the power of taxation for their payment, and of the provisions that have been made by law to that end. Where some provision has been made to enable a municipal corporation to discharge-its debts, the fact that the provision so made is inadequate will not authorize a court to devise a different plan, or to compel a larger exercise of the power of taxation. U. S. v. Macon Co., 99 U. S. 582, 590; Supervisors v. U. S., 18 Wall. 71.

The foregoing propositions are not in terms denied, but it is contended that by the laws of the state of Colorado which were in force when the warrants in controversy were issued, and when the judgment thereon was rendered, the duty was imposed on the board of county commissioners, hereafter termed the “defendants,” to levy a special tax adequate to pay the petitioner’s judgment. The first statute which is invoked as imposing the alleged duty is

section 8 of

an act approved on March 24, 1877, entitled “An act concerning counties, county officers, and county government, and repealing laws on these subjects’'' (Laws Colo. 1877, pp. 218, 219), which is as follows: “Sec. 8.

When a judgment shall be rendered against the board oí county commissioners of any county, or against any county officer, in an action prosecuted by or against him in his name of office, when the same shall be paid by the county, no execution shall issue upon said judgment, but the same shall be levied and paid bj the tax, as other county charges, and when so collected shall be paid by the county treasurer to the person to whom the same shall he adjudged, upon the delivery of a proper voucher therefor: provided, that nothing in this

section shall prohibit the county commissioners from paying such judgment by a warrant upon the county treasurer.’' Tills

section of the act remained in force until April 28,1887, when it was amended in the manner hereinafter stated. The ad: of March 24, 1877, above referred to, also prescribed the manner in which the finances of the various counties of the state should be administered by means of county orders or warrants.

Sections 44, 10(5, 112, 111, and 115 of said act (Laws Colo. 1877, pp. 231, 244-24(5) provided, in substance, that county orders might be issued for audited claims against the county; that the number, date, and amount of each warrant, and the name of the person to whom it was issued, should be entered in a book kept for that purpose; that county orders should be entitled to a preference in payment according to the order in which they were presented to the county treasurer for payment; that said treasurer should keep a register of county orders, wherein should be entered the date of presentation of each county order, whether it was paid or otherwise, the amount thereof, the name of the person to whom payable, and the name of the person presenting the same, which register should be open to public inspection at all reasonable hours.

The act further provided that every fund in the hands of a county treasurer should be paid out by him in the order in which the warrants drawn thereon should be presented for payment, and that: any county treasurer who should pay a county order when there was not sufficient money in his hands to pay all orders that had been previously presented against said fund should be deemed guilty of a high misdemeanor. These latter provisions of said act have remained practically unchanged from the date of their enactment, in March, 1877, to the present time. Mills’ Ann. St. Colo. c. 33, 900, 90(5, 909.

Four days prior to the passage of the act of March 24, 1877, to wit, on March 20, 1877, the legislature of (he state of Colorado passed another act: entitled, “An act to provide for the assessment and collection of revenue, and to repeal certain acts in relation thereto.” Laws Colo. 1877, pp. 741, 742. The sixth

section of said act: declared that: “There shall be levied and assessed upon taxable, real and personal property within this state in each year the following taxes: * * * for interest and payments on county bonds, such rate as may be necessary to pay said interest and payments; for ordinary county revenue, including the support of the poor, not more than ten mills on the dollar; for the support of schools, not less than two nor more than live mills on the dollar; for road purposes, not more than five mills on the dollar, and a poll tax not to exceed one dollar for such purposes, as shall be determined by the county commissioners of each comity.” This latter provision, limiting the rate of taxation for ordinary county revenue, including the support of the poor, to 10 mills on the dollar, appears to have remained in force until April 1, 1891, when that clause was changed so as to permit a levy thereafter for such amount as was “sufficient to defray the ordinary county expenses.” Laws Colo. 1891, pp. 111, 112.

In view of the local legislation aforesaid, the question arises whether, upon a true construction of

section 8 of the act of March 24, 1877, it should be held to authorize and require the levy of a special tax to any amount that may be found necessary to pay a judgment which is founded, like the one at bar, upon warrants issued for ordinary county expenses. Counsel for the petitioner insist upon an affirmative answer to this question, but, in our opinion, the position so taken is untenable. The acts of March 20,1877, and March 24,1877, were passed by the same legislature, at about the same time. They are, therefore, in pari materia, and must be construed together, as forming parts of the same law.

Now, in view of the provision limiting the rate of taxation for ordinary county revenue to 10.mills on the dollar, found in the act of March 20,1877, it is obvious, we think, that the legislature did not intend to declare that, if the holder of warrants issued for ordinary county expenses saw fit to reduce them to a judgment, instead of waiting for their orderly payment in the mode provided by law, it should thereupon become the duty of the board of county commissioners to levy a tax for the special benefit of the judgment creditor, adequate to pay his judgment, and to make such a levy although it raised the rate of taxation for ordinary county expenses to a sum exceeding the limit of 10 mills on the dollar.

The legislature must have foreseen that a provision of that character would necessarily derange the plan for paying warrants issued for ordinary county expenses, in the order of their presentation; that it would necessarily lead to great confusion in the administration of the county finances, and that it might cause the annual levy for ordinary county expenses to exceed 10 mills on the dollar. We must accordingly adopt a more reasonable construction of the

section of the act now under consideration, — a construction which is more in harmony with other provisions of the act, and that will best promote the- object which the lawmaker seems to have had in view. Eecurring to the act of March 24, 1877, we find that the various counties of the state of Colorado were thereby authorized, under certain conditions, which need not be stated in detail, to contract what may be termed an extraordinary indebtedness for the erection of public buildings, and for the repair of roads and bridges, and to issue bonds for the amount of the indebtedness so created.

They were also authorized to issue bonds to refund county orders that had been issued by them respectively prior to July 1, 1876; that is to say, before Colorado became a slate. Laws Colo. 1877, §§ 21 to 29, both inclusive. It must also be borne in mind that the counties of the state were liable to be sued on other obligations growing out of contract or tort, and that it was necessary to make some provision for the payment of judgments that might be recovered in actions of that character. It is most probable, we think, that the authority conferred on the board of county commissioners by

section S of the act of March 24,1877, fco levy a tax in case a judgment was recovered against a county, unless there happened to be funds in the county treasury on which a warrant could be drawn, had reference to judgments recovered against the county on account of some extraordinary expense or obligation, and that it had no reference to judgments recovered ou warrants issued for the customary or ordinary expenses of the county.

The legislature doubtless assumed that expenses of the last-mentioned character would be kept within the limits of the sum authorized to be raised annually by taxation to meet such expenses, and that the orders or warrants drawn for those expenses would be paid with reasonable promptness in the order of their presentation to the county treasurer.

It is clear, we think, that the legislature did not intend that the holder of such warrants should have the right to induce them to a judgment, and to demand the levy of a special tax to pay the same when recovered, without reference; to the question whether there were other warrants entitled to priority of payment, and without reference to the question whether such levy would increase the annual tax for ordinary county expenses to a sum exceeding 10 mills on the dollar.

We would not be understood as deciding that a suit cannot be maintained on warrants issued for ordinary county expenses, for such suits can unquestionably be maintained, at least in the federal courts. But what we do mean to decide is that, if a judgment is recovered on county warrants of that class,

section 8 of the act of March 24, 1877, does not authorize the levy of a special tax to any amount that may be necessary to pay such judgment. The; most that such a judgment creditor, who relies on the provisions of said section, can lawfully demand, is that the board of county commissioners shall thereafter levy in each year, for ordinary county expenses, a tax to the amount of 10 mills on the dollar, until his judgment is discharged. This is the view that was taken in the case of Supervisors v. U.

S., 18 Wall. 71, which arose in Iowa. .A statute of the state of Iowa provided for the levy of a fax upon the taxable property of the county for ordinary county revenue, including the support of the poor, not more than 4 mills on a dollar, and a poll tax of 50 routs. Another statute of the state, found in the

chapter concerning executions, provided that, in case of a judgment being rendered against a corporation, “if the debtor corporation issues no scrip or evidence of debt, a lax must be levied as early as practicable, sufficient to pay off the judgment, with interest and costs.” It was held that the latter statute found in Hie

chapter ou Executions did not authorize the levy of a special tax to pay a judgment recovered for ordinary expenditures, but that the county was limited to a tax of not more than four mills annually to pay debts of that character. See, also, Clay Co. v. McAleer, 115 U. S. 616, 6 Sup. Ct. 199.

Inasmuch, then, as the laws of the state placed a limit upon the rate of taxation which could be levied for ordinary county expenses, and inasmuch as the answer which was filed by the defendants contained repeated averments that taxes had been levied in every year at the highest rate authorized by law. we are constrained to hold that the answer disclosed a good and sufficient reason why a writ of mandamus ought not to be awarded, so far as the right to the writ was predicated on

section 8 of the act of March 24, 1877. It may be conceded that because the petitioner’s warrants, now merged in a judgment, were issued and registered prior to the repeal of said section, such repeal could not operate to deprive him of the remedy for their collection which was provided thereby, unless the repealing act provided an equally efficacious remedy. Louisiana v. Police Jury of St. Martin’s Parish, 111 U. S. 716, 4 Sup. Ct. 648.

But, if the averments of the answer are true, that taxes at the highest rate allowed by law for ordinary county expenses have been levied continuously in the county of Grand in each and every year since the warrants were issued, the petitioner would not be entitled to a writ of mandamus, although

section 8, above quoted, had not been repealed. It is next insisted that, notwithstanding all the averments contained in the answer, the defendants were in duty bound to levy a special tax adequate to pay the petitioner’s judgment, under the provisions of

an act passed by the legislature of the state of Colorado on April 28, 1887. Laws Colo. 1887, pp. 240, 241. The first

section of that act amended

section 8 of the act of March 24, 1877, and is as follows: “* * * When a judgment shall be given and rendered against a county of this state in the name of its board of county commissioners, or against any county officer, in an action prosecuted by or against him in his official capacity, or name of office, when the judgment is for money and is a lawful county charge, no execution shall issue thereon, but the same may be paid by the levy of a tax upon 1he taxable property of said county, and when the tax shall be collected by the county treasurer, it shall be paid over, as fast as collected by him, to the judgment creditor, or his or her assigns, upon the execution and delivery of proper vouchers therefor; but nothing contained in this

section shall operate to prevent the county commissioners from paying all or any part of any such' judgment by a warrant, drawn by them upon the ordinary county fund in the county treasury: provided, that the power hereby conferred to pay such judgment by a special levy of such tax, shall be held to be in addition to the taxing power given and granted to such board, to levy taxes for other county purposes, but the board of county commissioners shall levy under this law only such taxes as they, in their discretion, may deem expedient or necessary, and all taxes levied by authority of this act shall not exceed one .and one-half per centum on the dollar of assessed property for any one fiscal year; and provided further, that the powers herein given to the board of county commissioners shall not be construed as requiring said board to levy any special tax to pay any judgment, unless in its discretion the said board shall so determine. * ;s *” Tlie second

section of the same act provided, in substance, that all claims against a county should be presented for allowance to the board of county commissioners before a suit should be brought thereon; that all audited claims against a county should be paid by warrants drawn on the proper county fund; that the county fund's should be divided into two funds, known as the “Ordinary County Revenue Fund,” and the “Road Purposes Revenue Fund”; that no warrants should thereafter be drawn on a fund unless there was money in the treasury standing to the credit of the fund adequate to pay it; and that whenever there were no moneys in the treasury to meet the necessary county expenses, it should be lawful for the board of county commissioners to order warrants to be drawn in anticipation of the payment of taxes actually levied to the extent of 80 per cent, thereof. • The foregoing act having been passed after the issuance and registration of the petitioner’s warrants, it may be remarked at the outset, (hat the petitioner cannot claim the benefit of any new or additional remedy thereby provided for the collection of a judgment, except on the conditions prescribed by the legislature.

If, by the terms of the act, the board of county commissioners were left at liberty to determine, in the exercise of their discretion, whether in a given case a special tax should or should not be levied, a federal court in a mandamus proceeding cannot undertake to revise or control the exercise of that discretion. Board v. King, 32 U. S. App. 1, 14 C. C. A. 421, and 67 Fed. 202.

In the case last cited this court considered the question whether, by the act of April 28, 1887, the legislature did intend to vest the board of county commissioners with such discretion, and the conclusion was reached that such was the obvious purpose of the act. It further decided that it was competent for the legislature to confer such discretionary power upon the board of county commissioners when dealing with judgments thereafter rendered, unless the judgment was founded on county obligations contracted under the provisions of some prior law which provided a more efficacious remedy.

Looking at the language of the act of April 28, 1887, particularly the second proviso of the

section above quoted, we then thought, and are still of opinion, that we can discern a manifest purpose to vest the board of county commissioners with the discretion to levy a special tax or not to levy it, as they might deem best.

It seems to us most probable that the legislature, in framing the act in question, was actuated by the belief that the financial affairs of some of the counties in the state had been carelessly administered; that some counties had issued warrants without aulhority of law, for which they had received no consideration; that judgments had perhaps been rendered on some of such warrants, either by default or through lack of a proper defense, which would foreclose all further inquiry in a mandamus proceeding as to the merits of the claims; and that it was best, for these reasons, to leave the board of,county commissioners at full liberty to determine what demands were meritorious, and ought to be paid by the levy of a special tax, and what claims ought not to he thus paid.

Whether it was wise or unwise to vest boards of county commissioners wilh such discretionary power is not a proper subject for judicial consideration. On the argument of the case at bar, our attention was directed to a decision by the court of appeals of Colorado in People v.

Board of Com'rs of Rio Grande Co.. 42 Pac. 1032, where the conclusion appears to have been reached that seel ion 1 of the act of April 28, 1887, does impose on the board of county commissioners the absolute duty of levying a special tax to discharge a judgment against a county, when there are no funds in the county treasury applicable to its payment.

The conclusion thus announced as to the meaning of the act of April 28. 1887, seems to have been influenced to some extent by the terms of a subsequent act of the legislature heretofore referred to (Laws Colo. 1891, pp. 111, 112), which made it the duty of the hoard of county commissioners, in place of levying a tax of 10 mills annually, as theretofore, to levy a tax thereafter at no greater rate than was necessary to defray the ordinary county expenses.

While the decision in question is persuasive authority, and is entitled to the highest respect, and to careful consideration, because it construes a local statute, and emanates from one of the appellate courts of the state, yet we are constrained to hold that it is not conclusive on this court, for the reason that it is not a final decision by the highest judicial tribunal of the state, and therefore does not conclusively settle the local law; and for the further reason that the decision was not promulgated until nearly a year after this court had had occasion to place a definite construction upon the local statute in question.

Burgess v. Seligman, 107 U. S. 20, 35, 2 Sup. Ct. 10. When the case of Board v. King was under consideration by this court, it was an open question in the state of Colorado whether the act of April 28, 1887, when properly construed, was intended to vest the board of county commissioners with a discretion to determine, as it deemed best, whether a special tax ought to be levied to pay a judgment recovered against the county. So far as we are aware, no state court had at that time had occasion to consider it, but the question was res nova.

In the case last referred to this court carefully considered the act of April 28, 1887, in the light of other cognate local laws, and reached the conclusion that the exercise of the power to levy a tax, which was conferred by said act, was intended to be wholly discretionary with the board of county commissioners, and that no federal court could lawfully control the exercise of that discretion. Further consideration of the' subject has but served to strengthen our conviction that such was the purpose of the act.

We think it might be justly charg’ed that we had ignored the clearly expressed will of the lawmaker if, notwithstanding the provision “that the powers herein given to the board of county commissioners shall not be construed as requiring said board to levy any special tax to pay any judgment unless in its discretion, the said board shall so determine,” this court should declare that when a judgment has been recovered against a county, and there are no funds in the treasury on which a warrant can be drawn, such board can exercise no discretion, but must of necessity levy a special tax.

Under these circumstances, it can hardly be contended that it is .the duty of this court to surrender its convictions, and reverse its previous judgment in deference to a contrary decision made else: where, although we would cheerfully adopt the views of the state court if we felt that the construction by it placed on the local statute was right, or that the proper construction of the statute, in the respect above indicated, was involved in doubt. By the provisions of

an act passed on April 1, 1891 (Laws Colo. 1891, pp. 111, 112), it was made the duty of the board of county corn-missioners to levy a.tax of three mills on the dollar in each year “for the purpose of paying outstanding warrants and other floating indebtedness”; and by another act, passed on April 8, 1893 (Laws Colo. 1893, pp. 100-102), it was made the duty of the board of county commissioners of any county in the state, “which has or shall have; any unliquidated and unpaid county warrants or orders1 drawn on any fund, for the payment of which there are no funds in the county treasury of such county, and to pay which the incoming taxes already levied are insufficient, at the same time other county taxes are annually levied for the current year, in addition to the other taxes provided by law, to levy a sufficient tax, not exceeding five mills on the dollar of assessed' property, as shown by the assessment roll of such county of the current year, for the purpose of creating a special fund for the liquidation, payment and redemption of all such unliquidated and unpaid warrants or orders,” and to make a like levy annually until all such unpaid warrants or orders are fully liquidated.

It would seem, therefore, that the legislature of the; state of Colorado has made some provision since the act of April 28, 1887, was passed for the relief of warrant holders, and for the gradual payment of the outstanding debts of such counties as have heretofore become involved by reckless expenditures, or by the careless management of their financial affairs.

We do not understand, however, that any complaint is made in the present proceeding of a failure on the part of the defendants to discharge their duty under the provisions of either of these acts, or that the right to relief is in any respect predicated thereon. The claim is that the petitioner is entitled to a writ of mandamus under the acts of 1877 and 1887 heretofore considered.

As we art1 unable, for the reasons heretofore stated, to assent to that view, and as we are of the opinion that the answer which was filed by the defendants showed sufficient cause why a writ of mandamus ought, not to he awarded, the judgment of the circuit court is hereby affirmed.