Section 3275 of the Code of Iowa, which says:
"In case no property is found upon which to levy which is not
exempted by the last section (section 3274), or if the judgment
creditor elect not to issue execution against such corporation (a
municipal one), he is entitled to the amount of his judgment and
costs in the ordinary evidences of indebtedness issued by that
corporation. And if the debtor corporation issues no scrip or
evidences of debt, a tax must be levied as early as practicable
sufficient to pay off the judgment with interest and costs"
confers no independent power to levy a specific tax in order to
pay a judgment recovered against a municipal corporation on
warrants for ordinary county expenditures issued by such
corporation since 1863, in which year (as repeatedly since) the
Supreme Court of Iowa decided this to be the true interpretation of
the section, and that where the power bad not otherwise been
conferred it was not given by that section.
Page 85 U. S. 72
Butz v. City of Muscatine, where some language tending
perhaps to a different conclusion was used, distinguished from this
case, in that here the judgment was obtained after 1863, when the
meaning of the section had been passed on by the Supreme Court of
Iowa, and that there the bonds sued on were issued prior to 1863,
and when no decision as to the meaning of the section had been made
by the Supreme Court of Iowa, and when this Court
"felt at liberty to adopt its own construction and apply it to
the case of the holder of the bonds, though it was adverse to that
announced by the state court years after the bonds had been
issued."
In error to the Circuit Court for the District of Iowa, the case
being thus:
On the 13th of May, A.D. 1869, one Reynolds obtained in the
court just named a judgment against Carroll County, Iowa, for the
sum of $19,946. The judgment was for the amount due upon sundry
county warrants issued
for the ordinary expenditures of the
county, all issued after January 1, 1865. An execution having
been awarded upon the judgment and returned "
nulla bona,"
Reynolds sued out a writ of mandamus to compel the board of
supervisors of the county to levy a specific tax sufficient to pay
the debt, interest, and costs, and to apply the same, when
collected, to the payment. To this writ the supervisors returned,
in substance (after averring that the judgment had been obtained
upon ordinary county warrants issued
for the ordinary
expenditures of the county), that they had levied a county tax
for the current year of four mills on the dollar of the taxable
property of the county, and that they proposed to levy a similar
tax for each succeeding year until the judgment should be paid.
They further returned that they had no power to levy a tax at any
higher rate. A general demurrer to this return was then interposed,
and the circuit court sustained it. Hence this writ of error.
The question was whether, under the laws of Iowa, the board of
supervisors had power to levy a special tax, beyond four mills on
the dollar of the county assessment, in order to pay the relator's
judgment.
The solution of this question and the consequent correctness of
the action of the circuit court depended upon the
Page 85 U. S. 73
fact whether that court had rightly interpreted certain sections
in the Revised Code of Iowa.
Section 710 of the revision of 1860 is as follows:
"The board of supervisors of each county in this state shall
annually, as hereinafter provided, levy the following taxes upon
the assessed value of the taxable property in the county:"
"1st. For state revenue, one and one-half mills on a dollar,
when no rate is directed by the census board, but in no case shall
the census board direct a levy to be made exceeding two mills on
the dollar."
"2d.
For ordinary county revenue, including the support of
the poor, not more than four mills on a dollar, and a poll tax
of fifty cents."
"3d. For support of schools, not less than one nor more than two
mills on a dollar."
"4th. For making and repairing bridges, not more than one mill
on the dollar, whenever the board of supervisors shall deem it
necessary."
By an Act of April 2, 1860, which took effect on the 1st of
January, 1861, the board of supervisors became the financial agents
in place of the county judge.
Section 250 [
Footnote 1] is
this:
"The county judge [or as in consequence of the above-mentioned
act, it now was
the board of supervisors] may submit to
the people of his county at any regular election, or a special one
called for that purpose, the question whether the money may be
borrowed to aid in the erection of public buildings; whether the
county will construct or aid to construct any road or bridge which
may call for an extraordinary expenditure; whether stock shall be
permitted to run at large, or at what time it shall be prohibited,
and the question of any other local or police regulation not
inconsistent with the laws of the state. And when the warrants of
the county are at a depreciated value, he may in like manner submit
the question whether a tax of a higher rate than that provided by
law shall be levied, and in all cases when an additional tax is
laid in pursuance of a vote
Page 85 U. S. 74
of the people of any county, for the special purpose of repaying
borrowed money or of constructing or aiding to construct any road
or bridge, such tax shall be paid in money and in no other
manner."
The sections following, to 260, contain the details for the
submission of questions, and provide for carrying into effect the
propositions mentioned in section 250, which may be adopted by a
vote.
Section 252 declares:
"When a question so submitted involves the borrowing or the
expenditure of money, the proposition of the question must be
accompanied by a provision to lay a tax for the payment thereof in
addition to the usual taxes, as directed in the following section,
and no vote adopting the question proposed will be of effect unless
it adopt the tax also."
Sections 3274 and 3275, in a chapter entitled "EXECUTION," are
as follows:
"SECTION 3274. Public buildings owned by the state, or any
county, city, school district, or other civil corporation, and any
other public property which is necessary and proper for carrying
out the general purposes for which any such corporation is
organized, are exempt from execution. The property of a private
citizen can in no case be levied upon to pay the debt of a civil
corporation."
"SECTION 3275. In case no property is found on which to levy
which is not exempted by the last section, or if the judgment
creditor elect not to issue execution against such corporation, he
is entitled to the amount of his judgment and costs in the ordinary
evidences of indebtedness issued by that corporation.
And if
the debtor corporation issues no scrip or evidences of debt, a tax
must be levied as early as practicable sufficient to pay off the
judgment with interest and costs."
The circuit court, in overruling the demurrer, considered of
course that the provision in italic letters in the above-quoted
section 3275 authorized a levy sufficient to pay the judgment.
Page 85 U. S. 77
MR. JUSTICE STRONG delivered the opinion of the Court.
It is very plain that a mandamus will not be awarded to compel
county officers of a state to do any act which they are not
authorized to do by the laws of the state from which they derive
their powers. Such officers are the creatures of the statute law,
brought into existence for public purposes, and having no authority
beyond that conferred upon them by the author of their being. And
it may be observed that the office of a writ of mandamus is not to
create duties, but to compel the discharge of those already
existing. A relator must always have a clear right to the
performance of a duty resting on the defendant before the writ can
be invoked. Is it, then, the duty of the board of supervisors of a
county in the State of Iowa to levy a special tax, in addition to a
county tax of four mills upon the dollar, to satisfy a judgment
recovered against the county for its ordinary indebtedness? The
question can be answered only by reference to the statutes of the
state.
Page 85 U. S. 78
By an act of the legislature enacted on the 22d of March, 1860,
[
Footnote 2] it was declared
that in each organized county of the state there should be a board
of supervisors, the duties of which were defined. Prior to that
time, the financial affairs of the several counties had been, by
the law, committed to the charge of a county judge. But on the 2d
of April, 1860, a further act was passed, to take effect on the
first day of January, 1861, which enacted that all laws in force at
the time of its taking effect, devolving any jurisdiction or powers
on county judges, should be held to apply to and devolve such
jurisdiction upon the county board of supervisors in the same
manner and to the same extent as though the words "county board of
supervisors" occurred in said laws instead of the words "county
judge." [
Footnote 3] Whatever
power, therefore, the county judge possessed prior to that
enactment to levy taxes for any purpose was devolved upon the
county board, with all its limitations. They may levy those taxes
which he was empowered to levy, and no more, unless larger
authority has, by other statutes, been given to them. By the Act of
April 3, 1860 (Civil Code, section 710), they are required to levy
the following taxes annually upon the assessed value of the taxable
property in the county:
1st. For state revenue one and one-half mills on a dollar when
no rate is directed by the census board, and that board is
prohibited from directing a rate greater than two mills on a
dollar.
2d. For ordinary county revenue, including the support of the
poor, not more than four mills on a dollar, and a poll tax of fifty
cents.
3d. For support of schools not less than one and not more than
two mills on a dollar. And,
4th, for making and repairing bridges not more than one mill on
the dollar, whenever they shall deem it necessary. This act confers
all the powers which the county board possess to levy a tax for
ordinary county revenue. It is not claimed that larger authority
was ever given. And this, it is to be observed, is expressly
limited to the levy of a tax of not more than four mills upon the
dollar.
Page 85 U. S. 79
The board, however, have authority in certain specified cases to
levy a special tax to defray certain extraordinary expenditures.
Succeeding as they did to the powers and duties of the county
judge, whatever he was authorized to do in this behalf they may do.
He had been empowered by section 250 of the code to submit to the
people of the county at any regular election, or at a special one
called for that purpose, the questions whether money might be
borrowed to aid in the erection of public buildings; whether the
county would construct, or aid to construct, any road or bridge
which might call for an extraordinary expenditure; whether stock
should be permitted to run at large, and generally any question of
local or police regulation not inconsistent with the laws of the
state. He was also empowered, whenever the warrants of the county
were depreciated in value, to submit the question whether a tax of
a higher rate than that provided by law should be levied, and the
252d section enacted that when a question so submitted involved the
borrowing or expenditure of money, the submission of the question
should be accompanied by a provision to lay a tax for the payment
thereof, in addition to the usual tax, and that no vote approving
the borrowing or expenditure should be of any effect unless the tax
was also adopted. Thus it appears that the statutes of the state
have made provision for ordinary county taxes, limiting them to a
rate not exceeding four mills, and also for special taxes beyond
that limit, in certain defined contingencies. No statute was in
existence when this writ was sued out authorizing the county board
to levy a special tax for ordinary revenue, or for ordinary
expenditure, or, indeed, for any purpose except those we have
noticed unless it be found in section 3275 of the code, to which we
shall presently refer. And the legislature of the state has made a
clear distinction between ordinary county taxation, which the board
of county supervisors may, at their discretion, levy within
prescribed limits, and special taxation for extraordinary
emergencies, which can only be imposed in obedience to a popular
vote.
In this case, the warrants upon which the relator's judgment
Page 85 U. S. 80
was obtained were all ordinary warrants, drawn upon the
treasurer of the county, and, as is admitted by the demurrer, drawn
for the ordinary expenses of the county. None of them was issued in
pursuance of a popular vote or for any extraordinary expenditure.
They were such instruments as the legislature contemplated might be
employed in conducting the current and usual business of the
county. The act which empowers the county board to levy a tax for
ordinary county revenue speaks of them and evidently intends that
they shall be satisfied either from the proceeds of that tax or by
their being received in payment thereof. They are simply a means of
anticipating ordinary revenue.
But it has been argued on behalf of the relator that section
3275 of the code confers upon the county board the power, and makes
it their duty to levy a special tax beyond the tax authorized by
section 710, whenever a judgment has been recovered against the
county, even though that judgment may be for ordinary county
indebtedness. That section is found in a statute relating to
executions, and it is as follows:
"In case no property is found upon which to levy which is not
exempted by the last section (section 3274), or if the judgment
creditor elect not to issue execution against such corporation (a
municipal one), he is entitled to the amount of his judgment and
costs in the ordinary evidences of indebtedness issued by that
corporation. And if the debtor corporation issues no scrip or
evidences of debt, a tax must be levied as early as practicable
sufficient to pay off the judgment with interest and costs."
The next preceding section had enacted that public buildings
owned by the state or any municipal corporation, and any other
public property necessary and proper for carrying out the general
purpose for which any such corporation is organized, should be
exempt from execution, and that the property of a private citizen
should in no case be levied upon to pay the debt of such a
corporation. Neither of these sections declares that a special tax
shall or may be levied to pay any judgment against a municipal
body. All that is said is that in certain
Page 85 U. S. 81
contingencies, a tax must be levied sufficient to pay off the
judgment. But whether this tax is to be a special one or the tax
authority to levy which was given to the county board by the 710th
section the act does not say. It is certainly remarkable that if it
was intended to grant a new power to levy a tax for the payment of
ordinary county indebtedness when that indebtedness has been
brought to judgment, the power should be granted in a statute
relating solely to executions, without any direction by whom it
should be exercised, and that the additional grant should be left
to inference, instead of being plainly expressed. The powers
committed to the county board were declared in the statutes
relating to it and to its duties. If others were intended to be
given, it is strange, to say the least, that the gift was not made
when the legislature had the subject of the board and its powers
under consideration. And if a special tax to pay a judgment was
contemplated, it is hard to see why it was not provided for when
the legislature had the subject of special county taxes before it,
and when provision was made for levying such a tax to pay
depreciated county warrants, if approved by a popular vote. We do
not propose, however, to discuss the question now. It has already
been answered, and we must accept the answer. The Supreme Court of
Iowa has decided in several cases that section 3275 confers no
independent power to levy a specific tax in order to pay a judgment
recovered against a municipal corporation, and that when the power
has not otherwise been conferred, it is not given by that act. This
was decided in 1863 in the case of
Clark, Dodge & Co. v.
City of Davenport, [
Footnote
4] before any of the warrants were issued upon which the
relator's judgment was founded, and the construction then given to
the statute has been repeatedly asserted and consistently
maintained. It is therefore and it always has been the settled law
of the state. That the construction of the statutes of a state by
its highest courts is to be regarded as determining their meaning
and generally as binding upon United States
Page 85 U. S. 82
courts cannot be questioned. It has been asserted by us too
often to admit of further debate. [
Footnote 5] We have even held that when the construction
of a state law has been settled by a series of decisions of the
highest state court differently from that given to the statute by
an earlier decision of this Court, the construction given by the
state courts will be adopted by us. [
Footnote 6] And we adopt the construction of a state
statute settled in the courts of the state, though it may not
accord with our opinion. [
Footnote
7] There is every reason for this in the consideration of
statutes defining the duties of state officers. It is true, that
when we have been called upon to consider contracts resting upon
state statutes, contracts valid at the time when they were made
according to the decisions of the highest courts of the state,
contracts entered into on the faith of those decisions, we have
declined to follow later state court decisions declaring their
invalidity. But in other cases, we have held ourselves bound to
accept the construction given by the courts of the states to their
own statutes.
It is insisted, however, that in
Butz v. City of
Muscatine, [
Footnote 8]
this Court ruled that section 3275 of the code did give power to
the City Councils of Muscatine to levy a special tax beyond the
statutory limit of ordinary city taxation sufficient to pay a
judgment which had been recovered against the city. This is true.
But the facts of that case must be considered. The judgment had
been recovered upon bonds issued by the city in 1854. At the time
they were issued, no decision had been made by the supreme court of
the state to the effect that section 3275 was not an enabling
statute authorizing a tax beyond that allowed by other statutes. It
was not until nine years afterwards that the supreme court of the
state was called upon to determine its meaning. Hence this Court
felt at liberty to adopt its own
Page 85 U. S. 83
construction and apply it to the case of the holder of the
bonds, though it was adverse to that announced by the state court
years after the bonds had been issued. But at the same time, it was
said,
"if the construction given to the statute by the state court had
preceded the issuing of the bonds and become the settled law of the
state before that time, the case would have presented a different
aspect."
In the case we have now in hand, it appears that the warrants
upon which the relator recovered his judgment not only were for the
ordinary indebtedness of the county, but that they were issued
after it had become the settled law of the state, announced in the
decisions of its highest court, that the section of the statute
relative to executions now under consideration did not enlarge the
authority of a county board of supervisors and did not authorize
the levy of a tax beyond that provided for in section 710 -- that
is, a tax in excess of the rate of four mills on the dollar. The
holders of the warrants were therefore informed when they took them
that by the laws of the state, no special tax could be levied for
their payment unless the question whether such a tax might be laid
should first be submitted to the people and by them answered in the
affirmative according to the directions of sections 250 and 252, to
which reference has heretofore been made. In this particular, the
case differs from
Butz v. City of Muscatine. Looking at
the difference, we think there is no sufficient reason why we
should now depart from the construction which the courts of the
state have uniformly given to its statutes.
It follows that in our judgment the return to the alternative
mandamus was a sufficient return, that the respondents had no power
to levy the special tax called for, and as a writ of mandamus can
compel the performance only of some act which the law authorizes,
that the demurrer to the return should not have been sustained.
Judgment reversed and the record remitted with directions to
give judgment on the demurrer for the defendants below.
[
Footnote 1]
Revision of 1860, or § 114 of the Code of 1851.
[
Footnote 2]
Civil Code of 1860, § 302,
et seq.
[
Footnote 3]
Ib., § 330.
[
Footnote 4]
14 Ia. 494.
[
Footnote 5]
See numerous cases, Brightly's federal Digest 163.
[
Footnote 6]
Green v. Neal's
Lessee, 6 Pet. 291;
Suydam v.
Williamson, 24 How. 427;
Leffingwell v.
Warren, 2 Black 599.
[
Footnote 7]
McKeen v.
Delancy, 5 Cranch 22.
[
Footnote 8]
75 U. S. 8 Wall.
575.
MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE SWAYNE,
dissenting:
I dissent from the judgment of the Court in this case, holding
that this Court should adhere to its former decision, as it appears
that the state statute when the bonds in that case were issued had
not been construed by the state court.
Where the construction of a state statute is involved in a case
presented here for decision and it appears that the statute in
question has not been construed by the state court, I hold that it
is the duty of this Court to ascertain and determine what is its
true construction, and that this Court, under such circumstances,
will not reverse its decision in the same or a subsequent case even
though the state court may afterwards give a different construction
to the same statute.
