REPORTS

OF

CASES DETERMINED

IN THE

Circuit Courts of the United States,

FOR THE

EIGHTH JUDICIAL CIRCUIT.*

ZENAS E. BRITTON V. PLATTE CITY.

1. Under the General Statutes of Missouri a judgment creditor of a municipal corporation where an execution has been returned unsatisfied, is entitled to a writ of mandamus to compel its officers to levy and collect, under the direction of the court which rendered the judgment, a special tax to pay such judgment and costs.

2. This power and duty on the part of the municipality is not restricted by a provision in the charter of a city, authorizing it to levy for ordinary municipal purposes a general tax not exceeding a specified rate.

(Before DILLON, TREAT, AND KREKEL, JJ.)

Municipal Corporations. -Mode of Enforcing Judgments.— Mandamus to Collect Tax.- Construction of General Act and Special Charter as to Rate of Taxation.

BRITTON obtained judgment in this court, November 5, 1870, for $8,458, damages and costs, against the corporation

*Formerly the organization of the circuit court for the eastern district and the western district of Missouri was peculiar (1 Dillon, C. C. 1). In the year 1872, Congress established a separate circuit court in each of these districts. Some of the cases here reported were decided before and some after this change was made. By what court each case was decided and what judges were present is indicated in the reports,

Britton v. Platte City.

named The Inhabitants of the town of Platte City, in an action on the case for injuries received by reason of a defective sidewalk of the city. An execution was issued November 29, 1870, and on December 15, 1870, it was returned nulla bona. Whereupon, this application for a writ of mandamus was made on the 29th day of June, 1871, against the respondents, the trustees of said corporation. An alternative writ was issued returnable to this term. The city by its trustees return to the writ, in substance, that by its charter the city is authorized to levy a tax not exceeding one-half of one per cent per annum; that the assessed value of all the taxable property of the city does not exceed $200,000; that a tax of one-half of one per cent as well as the poll tax authorized by the charter has been already levied and is being collected with a view to pay the judgment of the relator, which will yield not to exceed $1,000. To this return the relator demurs.

The several charters and laws applicable to the present inquiry are as follows:

Act of February 3, 1853 (Laws 1853, p. 61), incorporating the town of Platte City. By the seventeenth section the act is made a public act; by the first section the corporation may sue and be sued. Sec. 9. "The said board of trustees shall have power by ordinance to levy and collect not exceeding fifty cents in any one year on all white male inhabitants of the town over the age of twenty-one years; also to levy and collect taxes on all real and personal property within the limits of said town, not exceeding one-half of one per cent upon the assessed value thereof."

By an amendatory act, approved January 14, 1860 (Laws 1859-60, p. 379), it is provided: The board of trustees shall have power to levy and collect taxes on all real and personal property within the limits of said town, not exceeding five per cent on the assessed value thereof; provided, a majority of the legal voters of said town of Platte City shall so in