# United States ex rel. Harshman v. County Court of Knox Co./Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
122 U.S. 306
United States ex rel. Harshman v. County Court of Knox Co.
It is not denied, and has been so decided by the supreme court of Missouri, that, under section 17 of the general railroad law, just cited, the county court of a county was authorized to subscribe to the stock of railroad companies, though created by special charter, provided the requisite assent of the qualified voters was duly obtained. Cape Girardeau, etc., Co. v. Dennis, 67 Mo. 438; Chouteau v. Allen, 70 Mo. 290. It is also not denied that, by virtue of section 18 of the general railroad law, the special tax therein provided may be levied for the purpose of paying bonds issued in pursuance thereof, and that without limit as to its amount. U.S. v. County of Macon, 99 U.S. 582. As the limit of taxation prescribed and permitted under section 13 of the act incorporating the Missouri & Mississippi Railroad Company to be levied in payment of bonds issued thereunder was not to exceed one-twentieth of 1 per cent. upon the assessed value of the taxable property for each year, the contention of the respondents in the circuit court was that they were entitled to show by the recitals in the bonds themselves, in contradiction to those contained in the judgment founded upon them, that they were in fact issued under the charter of the corporation, and not under the general law. On this point the judgment of the circuit court was in their favor, denying to the relator the peremptory writ of mandamus; and this decision is now alleged as error for which the judgments hould be reversed.
The question is whether the respondents below are estopped in this proceeding, by the judgment in favor of the relator against the county of Knox on the bonds, to deny that the bonds were issued in pursuance of section 17 of chapter 63 of the General Statutes of Missouri of 1865. The averment to that effect in the petition in the action, if material and traversable, was confessed by the default. The judgment recites that the action is founded upon certain bonds, and coupons for interest thereon, issued by said defendant, and described in the petition. The averment as to the character of the bonds, and the grounds and authority upon which they were founded, so as to constitute them legal obligations of the county of Knox, contained in the petition, was clearly material to the plaintiff's cause of action. If the defendant had denied it by a proper pleading, the fact would have been put in issue, and the plaintiff would have been bound to prove it.
It was part of the plaintiff's case to show, not merely the execution of the bonds by the county authorities, but that they were issued in pursuance of a law making them the valid obligations of the county. The power to issue such securities does not inhere in a municipal corporation, so as to be implied from its corporate existance; it must be conferred, either in express words, or by reasonable intendment; and, if the authority to issue them in a given case is challenged by a proper denial, the plaintiff is put to the proof. What it is necessary for him to prove it is proper for him to allege, and the allegation must be proven as made. It follows, therefore, that, if a denial had been made in the action on the bonds in question, the averment that they were issued under section 17 of chapter 63 of the General Statutes of Missouri of 1865, would have been material and traversable, and proof of the fact would have been necessary to support the recovery. In the absence of a denial, the fact, as stated in the petition of the plaintiff, is confessed by the default, and stands as an admission on the record of its truth by the defendant. It is quite true that the judgment would have been the same whether the authority to issue the bonds was derived under the general statutes or under the charter of the railroad company, but good pleading required that the fact, whichever way it was, should be stated, and, when stated, the averment must be proved as laid.
As this is a direct proceeding upon the judgment, its effect as an estoppel is determined by the first branch of the rule as laid down in Cromwell v. County of Sac, 94 U.S. 351. That is: 'It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' And as stated in Burlen v. Shannon, 99 Mass. 200, 203: 'The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded.' It is none the less conclusive because rendered by default. 'The conclusiveness of a judgment upon the rights of the parties does in nowise depend upon its form, or upon the fact that the court investigated or decided the legal principles involved. A judgment by default or upon confession is in its nature just as conclusive upon the rights of the parties before the court as a judgment upon a demurrer or verdict.' Gifford v. Thorn, 9 N. J. Eq. 722. The bar is all the more perfect and complete in this proceeding because it is not a new action. Mandamus, as it has been repeatedly decided by this court in such cases as the present, is a remedy in the nature of an execution for the purpose of collecting the judgment. Riggs v. Johnson Co., 6 Wall. 166; Supervisors v. Durant, 9 Wall. 417; Thompson v. U. . , 103 U.S. 484. Certainly nothing that contradicts the record of the judgment can be alleged in a proceeding at law for its collection by execution.
In Ralls Co. v. U.S., 105 U.S. 733, the chief justice said: 'In the return to the alternative writ many defenses were set up which related to the validity of the coupons on which the judgment had been obtained, as obligations of the county. As to these defenses, it is sufficient to say it was conclusively settled by the judgment, which lies at the foundation of the present suit, that the coupons were binding obligations of the county, duly created under the authority of the charter of the railroad company, and as such entitled to payment out of any fund that could lawfully be raised for that purpose. It has been in effect so decided by the supreme court of Missouri in State v. Rainey, 74 Mo. 229; and the principle on which the decision rests is elementary.' As the execution follows the nature of the judgment, and its precept is to carry into effect the rights of the plaintiff as declared by the judgment, with that mode and measure of redress which in such cases the law gives, so the mandamus in a case like the present can be limited in its mandate only by that which the judgment itself declares.
It was said, however, in Ralls Co. v. U.S., 105 U.S. 733, that, 'while the coupons are merged in the judgment, they carry with them into the judgment all the remedies which in law formed a part of their contract obligations, and these remedies may still be enforced in all proper ways, notwithstanding the change in the form of the debt.' It is argued from this that, as the remedies to be resorted to for the purpose of enforcing the judgment are those given by the original contract, it is necessary to ascertain from the contract itself what those remedies are; but that is the very matter which has been already passed upon in the judgment, which decides, in the present case, by its recital, the character and extent of the obligation created by the law of the contract. It may well be that, in a case where the record of the judgment is silent on the point, the original contract may be shown, notwithstanding the merger, to determine the extent of the remedy provided by the law for its enforcement; but that is not admissible where, as in this case, the matter has been adjudged in the original action. Indeed, in view of the nature of the remedy by mandamus as the means of executing the judgment, it is all the more material and important that the judgment itself should determine the nature of the contract and the extent of its obligation. The averment in the original petition that the bonds were issued under the authority of a particular statute becomes, therefore, an additional element in the plaintiff's case in that action for the purpose of showing with certainty what is the mode and measure of redress after judgment. By the terms of the judgment in favor of the relator it was determined that the bonds sued on were issued under the authority of a statute which prescribed no limit to the rate of taxation for their payment. In such cases, the law which authorizes the issue of the bonds gives also the means of payment by taxation. The findings in the judgment on that point are conclusive. They bind the respondents in their official capacity, as well as the county itself, because, as was said in Labette Co. Com'rs v. Moulton, 112 U.S. 217, 5 Sup. Ct. Rep. 108, 'they are the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty of providing for its satisfaction. They are not strangers to it as being new parties on whom an original obligation is sought to be charged, but are bound by it as it stands without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment.'
The return of the respondents, therefore, to the alten ative writ of mandamus, is insufficient in law, and the circuit court erred in not awarding to the relator a peremptory writ of mandamus. For that error the judgment is reversed, and the cause remanded, with directions to award a peremptory mandamus.

## Notes

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