Supervisors v. United States (71 U.S. 435)

ERROR to the Circuit Court of the United States for the Northern District of Illinois, the case being thus:

A statute of Illinois, of February 16th, 1863, enacts as follows:

'The board of supervisors under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent. upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court of board of supervisors, as the case may be, in liquidation of such indebtedness.'

With this statute in force, the State Bank, relator in the case, was the holder of certain coupon bonds of the County of Rock Island, originally issued and negotiated in payment of stock of the Warsaw and Rockford Railroad Company, for which the county had subscribed. They were issued pursuant to law.

The coupons representing the interest for one year were paid by the county; the necessary tax having been levied and collected for that purpose. Subsequent payments, however, were not made, and at the March Term, 1863, the relator recovered a judgment in the court below, upon coupons overdue and unpaid, for $2554, and costs. Nothing was paid upon it, and there was no money in the county treasury which could be so applied.

The relator subsequently requested the supervisors to collect the requisite amount by taxation, and to give him an order on the county treasury for payment. They declined to do either.

He then applied to the court below for a mandamus, compelling the supervisors, at their next regular meeting, to levy a tax of sufficient amount to be applied to pay the judgment, interest, and costs, and when collected to apply it accordingly. An alternative writ was issued.

The supervisors made a return, wherein numerous objections were taken to the issuing of a mandatory writ. Among them were:

1. That the court below, in rendering judgment, had allowed interest on the coupons, from the day they became due.

2. That the respondent had no power to pay the judgment except by issuing an order on the treasurer of Rock Island County; the ground of this objection being a statute of Illinois, which enacts, that when a judgment is rendered against a county, no execution shall issue, byt that the county commissioners' court shall draw a warrant upon the treasurer for the amount, 'which shall be paid as other county debts.'

3. In substance, that the respondent had levied and collected the regular county taxes, and that the same had all been needed and used for the ordinary current expenses of the county.

The court below disallowed the return, and ordered that a peremptory writ should issue, commanding the respondents, at their next meeting for levying taxes, to levy a tax of not more than one hundred cents on each one hundred dollars' worth of taxable property in the county, but of sufficient amount fully to pay the judgment, interest, and costs; and that they set the same apart as a special fund for that purpose; and that they pay it over without unnecessary delay to the relator.

The main question here in the case was whether, under the act of February 16th, 1863, the respondents were compellable to levy and collect, by taxation, the amount specified in the order of the court below; that is to say, in other words, whether that expression of the statute, 'may, if deemed advisable,' was permissive merely, or, under the circumstances of this case, obligatory.

The case was submitted on briefs.

Mr. Cook, for the Supervisors, plaintiffs in error:

I. Under the law, as settled in Illinois, counties cannot be required to pay interest in any case, unless they specially contracted to pay it.

II. Under the statutes of Illinois, there is but one mode in which payment of a judgment against a county can be coerced, and that is by obtaining a county order from the county authorities upon the county treasurer. A statute provides this way, and provides none other. Necessarily, therefore, it is the only mode in which a judgment can be proceeded in.

III. The statute of February 16th, 1863, says the board of supervisors 'may, if deemed advisable, levy a special tax.'

If not deemed advisable, the tax is not to be levied, because these words cannot be rejected, and while they remain there is no room for construction.

If the statute had simply said, 'may levy a tax,' it might then well be argued, that in cases where the interests of a third party were concerned the court would construe may to mean shall, and would enforce the levy. But it is not so here. They may, upon a condition, and that condition is, that the board and none other shall deem it advisable. This statute does not repeal any other, but is in addition-it is cumulative.

Suppose the statute had read, 'shall, if deemed advisable,' certainly its effect would not be in the least changed; because it would still be necessary that the plaintiff deem it advisable before it should levy.

If the words 'may, if deemed advisable,' vest discretion in the plaintiff, then it cannot be controlled by the court. If they vest the discretion in the court to determine when it is advisable to levy a tax, then the board of supervisors could not, in any case, levy a tax under that statute, unless the court had first found it advisable and issued its mandate to that effect direction it to be done.

A statute ought to be so construed that no clause, sentence, or word shall be superfuous, void, or insignificant.

In The King v. The Mayor, Holroyd, J., observes: 'By the charter, the mayor and aldermen are to elect such and so many free burgesses as they shall think fit. It is not competent, therefore, to the court to grant a mandamus directing them to elect any.'

In The Commonwealth v. The County Commissioners, the first section of an act made it the duty of the assessors to receive from parents the names of children residing in their townships, and whose parents were unable to pay for their schooling, &c. The second section directed the assessor to send the list to the teachers of schools within his township &c., 'whose duty it shall be to teach all such children as may come to their schools, in the same manner as other children shall be taught. It required the teachers to keep a day-book and to enter in it the number of days each child should be taught, and the amount of stationery furnished for the use of the child, 'from which book he shall make out his account against the county on oath or affirmation, agreeably to the usual rates of charging for tuition in such schools; which account, after being so examined or revised, he shall present to the county commissioners, who, if they approve thereof, shall draw their order on the county treasurer for the amount, which he is hereby directed to pay out of any moneys in the treasury.'

Upon a motion for mandamus against the commissioners, the court says:

'The law has vested the commissioners with the power of approving or disapproving of the account, and we cannot take it away from them.'

The mandamus was refused.

In The People v. Supervisors of Albany, a leading case, a statute directed supervisors to allow a constable for certain services 'so much money as the supervisors shall judge he reasonably deserves to have.'

On motion for mandamus, to allow a certain sum claimed, the court says:

'In the present case, whatever may be thought of the reasonableness of the allowance of the supervisors to the applicant, he has no legal right to any particular sum. He has no right to any money for the services performed but such as the supervisors shall in their discretion judge him entitled to. Should we grant a peremptory mandamus what would be its command? Certainly not to allow and specific sum. That would be taking upon ourselves a discretion which the legislature have vested in the supervisors; we could only command them to examine the applicant's account, and, in the words of the statute, allow him for his services such sum as they shall judge he reasonably deserves to have; and this has been already done. Where a discretionary power is vested in officers, and they have exercised that discretion, this court ought not to interfere, because they cannot control, and ought not to coerce that discretion. This may be a hard case, and the pary may be remediless; but that consideration cannot induce us to grant an unfit, and, as I believe, a nugatory remedy.'

In a note to Johnson's Cases, the subject is very fully treated, and the authorities cited. It is said:

'The writ of mandamus will not lie to control the discretion of an inferior officer, for otherwise superior tribunals would draw to themselves all matters of judgment, and officers would in reality have none at all.

'Whenever a discretionary power is vested in officers, and that discretion has been exercised, the court ought not to interfere, because they cannot control and ought not to coerce that discretion.

'The writ of mandamus will lie to corporations, as to inferior tribunals and officers, to compel them to exercise their discretion, though not to direct the manner of its exercise.'

In United States v. Seaman, in this court, Taney, C. J., giving the opinion of the court, says: