Davies v. Corbin

B. C. Brown, E. W. Kimball, and C. P. Redmond, in support of motion.

A. H. Garland, in opposition.

The facts on which this motion rests are these: Each of the defendants in error recovered a separate and distinct judgment in the circuit court of the United States for the Eastern district of Arkansas against the county of Chicot. The aggregate of all the judgments was much more than $5,000; but the amount due upon each is not stated. After the judgments were recovered, the several plaintiffs commenced proceedings in the circuit court to compel the county court of the county to levy a tax for the payment of the amounts due them respectively. The result of these proceedings was that after several writs of mandamus were issued, 'by the consent of the relators, and by and with the approval and consent of the circuit court, it was agreed that if the county court * * * would levy a tax of ten mills upon the property of said county, and collect the same, said tax to be distributed pro rata among the judgments so recovered by the relators and others against said county' in the circuit court, 'that such levy, collection, and distribution would be accepted by the relators, and the other judgment creditors, as a sufficient compliance by said county court with the commands of the said writs of mandamus.' The county court carried out this agreement and levied the tax, which was in due form of law extended on the tax-books, and placed in the hands of Davies, the collector of the taxes of the county, for collection with the other taxes for that year. After the tax-book was delivered to the collector, he undertook the collection thereof, as he was bound in law to do, and proceeded until, 'on the twenty-ninth day of January, 1884, being the last day of the January term of the Chicot county court, there was filed in open court a complaint in equity, by one Alice R. Hamlet, against' him, 'setting up, among other facts, that she was the owner of certain lands in Chicot county, assessed for the year 1883 at $400; that no valid assessment had been made of said lands for various reasons therein set forth; that the board of equalization for said county, which met on the nineteenth day of June, 1883, was illegally organized, and proceeded, in violation of law, to alter and change the assessments of real and personal property turned over to it by the clerk of said county, and avowing that assessments were not legally equalized, and that there is no valid assessment of property in said county for the year 1883, and that the taxes levied on said assessments cannot be legally enforced, by sale or otherwise, against the objection of the tax-payers of said county.' The complaint further set forth 'the various assessments or rates of taxes levied by the county court for different purposes for the year 1883, including ten mills to pay the judgments against said county' in the circuit court. Under this complaint 'a temporary restraining order was made by the HON. JOHN M. BRADLEY, judge of said court, forbidding' the collector 'from collecting any portion of said ten-mill tax.' In obedience to this injunction, the collector stopped the collection of the 'ten-mill tax,' though he went on with all the rest.

Thereupon all the relators united in an application to the circuit court for a rule on the collector to show cause why a peremptory writ of mandamus should not issue commanding him to proceed with the collection of the 10-mill tax. The collector appeared in obedience to the rule, and for cause showed that he had been enjoined by the state court from making the collection. The parties went to a hearing on the application of the relators and the return of the collector to the rule. The circuit court, after hearing, awarded the writ, and for the reversal of an order to that effect this writ of error was brought by the collector.

Mr. B. C. Brown, Mr. E. W. Kimball and Mr. C. P. Redmond in support of the motion.

[Argument of Counsel from pages 39-40 intentionally omitted]

Mr. A. H. Garland for plaintiff in error, contra.

WAITE, C. J.