Thompson v. Allen Company

W. O. Dodd and ''Chas. Eginton'', for appellant, T. W. Thompson.

John M. Brown and ''Geo. M. Davie'', for appellees, Allen Co. and others.

MILLER, J.

This is an appeal from a decree of the circuit court of the United States for the district of Kentucky, dismissing the bill of the appellant, who was plaintiff in that court. The case was tried on bill, answer, exceptions to the answer, and a stipulation as to the facts. The substance of the bill is that plaintiff had obtained against Allen county, in that court, two judgments at law, amounting to over $27,000, on coupons for interest on bonds issued by the county to pay for subscription to the stock of the Cumberland & Ohio Railroad Company; that, after executions on these judgments had been duly returned 'no property found,' the court, at the instance of the plaintiff, issued writs of mandamus to the justices of the Allen county court, under which they levied a tax of $2.08 on every hundred dollars' worth of taxable property in the county to pay said judgments; that, at the same time, they elected one J. T. Stork collector of said tax levy, and made an order that he give bond with good security as such collector, and proceed to collect the levy and pay it over in satisfaction of the judgments; that Stork refused to give bond as required, and refused to accept and qualify as such collector; and that, by reason of the hostility of the citizens and tax-payers of Allen county, no one can be found in the county who will perform the duty of collector. The bill then gives the names of about 30 of the principal taxpayers in the county, with the value of the assessed property of each, and the amount of tax due from him under said levy, alleging that the tax-payers are too numerous to be sued, and praying that these may be sued as defendants representing all others in like circumstances, and be required, with the county, to answer the bill. The prayer of the bill for relief is that, inasmuch as the complainant is without remedy at law, the court, sitting in chancery, will appoint a receiver, who shall collect these taxes, and that the money arising therefrom be from time to time paid over in satisfaction of plaintiff's judgments, and that the several tax-payers of said county, made defendants, be required to pay into court, with like effect, the sums due by them as alleged in the bill. A joint answer was filed by Allen county and the other defendants who were served with process. They admit the recovery of the judgments, the return of the executions 'nulla bona,' the issue of the writs of mandamus, and the levy of the tax by the county court. They also admit the election of Stork as collector and his refusal to serve, and they deny everything else. They say that the bonds were procured by fraud and without consideration, the road was never built, the tax is unjust and oppressive, and they deny the jurisdiction of the court, sitting as a court of equity, to collect these taxes, which can only be done by a collector of taxes for said county, appointed according to law, and not otherwise. Exceptions were filed to this answer, which were not passed upon, but the case was heard on bill, answer, exceptions, and the following stipulation: 'By leave of the court the parties now stipulate of record in this cause: (1) That the county court of Allen county has in good faith and diligently endeavored to find a fit and proper person to act as collector of the railroad taxes in said county, and of the special levies of taxes in the bill of complaint set forth; (2) that no such fit and proper person can be found who will undertake and perform the office and duty of such collector; (3) that the complainant is without remedy for the collection of its debt herein, except through the aid of this court in the appointment of a receiver, as prayed for in the bill, or other appropriate order of the court.' The hearing was had before the circuit justice and the circuit judge, who certified that they were opposed in opinion on the following questions occurring in the progress of the case: '(1) Whether taxes levied under judicial direction can be collected through a receiver appointed by the court of chancery, if there is no public officer with authority from the legislature to perform the duty. (2) Whether taxes levied by state officers under judicial direction can be collected through a receiver appointed by the United States court, where the legislature has provided an officer to collect, but there is a vacancy in office, and no one can be found who is willing to accept the office. (3) Whether a court of chancery can grant any relief to complainant upon the facts recited in the bill, answer, and stipulation, as presented in this record.' A decree was rendered in accordance with the view of Presiding Justice MATTHEWS, whose opinion is found in the record, by which the bill was dismissed.