# Supervisors v. United States (85 U.S. 71)

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## Dissenting Opinion

    Clifford
United States Supreme Court
85 U.S. 71
Supervisors v. United States
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 Junuary 1st, 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 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 2d, 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 is this:
'The county judge [or as in consequence of the abovementioned 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 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.
Mr. Isaac Cook, for the plaintiffs in error:
The Supreme Court of Iowa has held uniformly that section 3275 does not invest corporations with the power to levy taxes. That court holds that this section directs duties to be performed by the taxing officers, under powers given elsewhere in the statute, but does not extend their powers beyond the limits prescribed in other parts of the statutes, where the power to levy taxes is expressly given, and the limit fixed beyond which taxes cannot be levied. The decisions of that court on this subject have been uniform, and extend through a term of about ten years. This was the point adjudged in Clark, Dodge & Co. v. The City of Davenport, decided in 1863; and in The Iowa Railroad Land Company v. Sac County and Duffy, and in the case of the Same Plaintiff v. Sac County and Hobbs, decided in 1873, and not yet officially reported.
In addition to the decisions of the Supreme Court of Iowa above cited, attention must be called to the fact, of which this court will take judicial cognizance, that the legislature by a code of 1873, has re-enacted in the same language the material parts of section 3275 of the revision of 1860. The legislature has thus adopted the construction given to that statute by the Supreme Court. The re-enactment of a previous statute operates as a legislative adoption of the judicial construction of such statute. It is, therefore, as fully settled as legislative enactments and judicial determination can settle anything, that by the laws of Iowa, a special tax cannot be levied to pay a judgment against a county rendered upon ordinary county warrants. And that when the board of supervisors have levied an ordinary county tax of four mills on the dollar, they have levied the greatest tax which they have the power to levy for the payment of such judgment.
The construction given to a statute of a State by the highest judicial tribunal of such State, is regarded as a part of the statute, and is as binding upon the courts of the United States as the text.
Mr. James Grant, contra:
We are aware of the construction put by the Supreme Court of the State of Iowa upon section 3275. But with that construction full before it, this court, in Butz v. City of Muscaline, has put an exactly opposite construction on it. Speaking by SWAYNE, J., this court there said that 'the limitation . . . touching the power of taxation by the city council, applies to the ordinary course of their municipal action. . . .
'But when a judgment has been recovered, the case is within the regulation of the code. . . . The extent of the necessity is the only limitation expressed or implied in the code, of the amount to be levied.'
The learned justice still speaking for the court says, in words which apply directly to the present case:
'If these views be not correct the position of the judgment creditor is a singular one. All the corporate property of the debtor is exempt by law from execution. The tax of 1 per cent. is all absorbed by the current expenses of the debtor. There is neither a surplus nor the prospect of a surplus, which can be applied upon the judgment. The resources of the debtor may be ample, but there is no means of coercion. . . . The judgment though solemnly rendered is as barren of results as if it had no existence. . . . Nothing less than the most cogent considerations could bring us to the conclusion that it was the intention of the law-making power of so enlightened a State, to produce by its action such a condition of things in its jurisprudence.'
After such language as this, it is no answer to us to say that the case of Butz v. City of Muscatine differed in some minor points of fact or date from this case.
So in repect to the obligation of this court to follow the decisions of the Supreme Court of Iowa, 'more or less adverse' to the views above expressed, the leared justice continues:
'Entertaining the highest respect for those by whom they were made, we have yet been unable to concur in the conclusions which they announce. It is alike the duty of that court and of this to decide the questions involved in this class of cases as in all others when presented for decision. This duty carries with it investigation, reflection, and the exercise of judgment. It cannot be performed on our part by blindly following in the footsteps of others and substituting their judgment for our own. Were we to accept such a solution we should abdicate the performance of a solemn duty, betray a sacred trust committed to our charge, and defeat the wise and provident policy of the Constitution which called this court into existence.'
This court accordingly-disregarding the construction put upon the Code of Iowa by the Supreme Court of that State-reversed a judgment which refused a mandamus, and ordered a contrary judgment.
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ Revision of 1860, or § 114 of the Code of 1851.
* ↑ 14 Iowa, 494.
* ↑ Section 3049.
* ↑ Leffingwell v. Warren, 2 Black, 599; Christy v. Pridgeon, 4 Wallace, 196.
* ↑ 8 Wallace, 575.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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