United States v. County of Clark/Opinion of the Court

The judgment of the Circuit Court was correct. The return of the defendants to the alternative writ set up a complete defence, and its averments of fact are admitted by the demurrer of the United States. It is then, for the purposes of this case, an established fact that the county bonds held by the relator, and the coupons upon which his judgment was obtained, were not issued, and, therefore, did not become a debt of the county until Jan. 1, 1874. Until they were issued, they imposed no liability upon the obligor; and, until the liability arose, there was no obligation resting on the county court to levy the tax of one-twentieth of one per cent, authorized by the charter of the Missouri and Mississippi Railroad Company. That tax was, by the act of the General Assembly conferring that charter, allowed for the specific purpose of providing means for the payment of the bonds which might be issued for the payment for the county's subscription to the capital stock of that company. So long as the bonds remained unissued, the tax remained unauthorized. There never was, therefore, any authority given by law for the levy of that special tax for the years 1872 and 1873. The fact that the bonds, when delivered in 1874, had attached to them coupons for interest, which, apparently, had accrued prior to their delivery, could not enlarge the power of the county court, or confer upon it authority to levy in any year more than one special tax of one-twentieth of one per cent. It need not be said that no court will by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State. A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty. The Circuit Court was, therefore, right in refusing to order a peremptory mandamus to levy and collect the special tax for the years 1872 and 1873, and in directing it only for the subsequent years.

There was also no error in refusing to order the writ to enforce the levy and collection of other taxes. The county court has, by law, no power to levy, in addition to the special tax allowed by the charter of the Missouri and Mississippi Railroad Company, a tax exceeding the rate of one-half of one per cent of the valuation of the taxable property; and the return to the alternative writ avers, that, for the year 1874, a county tax of one-half of one per cent had been fully levied and collected. If this was so, and the demurrer admits it, the county court was in no default in this particular; and as the petition for the mandamus was presented in 1874, before any default in levying a tax, a more favorable judgment on the demurrer could not have been given for the relator than the court gave.

In thus deciding, we are not to be understood as maintaining all that is averred in the defendants' return to the alternative writ. We do not assert that the relator is without remedy against the county, or that his remedy is restricted to a resort to the proceeds of the special tax. It is enough for this case that the judgment of the Circuit Court was correct on the pleadings.

Judgment affirmed.