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Statement of Facts.

MERIWETHER v. MUHLENBURG COUNTY COURT.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY.

Argued January 5, 1887. — Decided January 31, 1887.

Following the decisions of the Supreme Court of Kentucky, this court holds that the justices of the peace of Muhlenburg County, in that state, do not form a necessary part of the county court when levying a tax to satisfy a judgment against the county, under § 9 of the Act of the Legislature of Kentucky, of February 24, 1868, amending the charter of the Elizabethtown and Paducah Railroad Company.

MERIWETHER, the plaintiff in error, obtained a judgment in the court below against the county of Muhlenburg, in the State of Kentucky, for the amount of certain unpaid coupons of bonds, issued by it in payment of a subscription to the capital stock of the Elizabethtown and Paducah Railroad Company. Execution having been returned "no property found to satisfy the same or any part thereof," and the county court of the county having refused to levy a tax sufficient to pay the judgment, Meriwether filed the petition in this case against the judge of that court, praying for a mandamus compelling the levy and collection of such tax. The plaintiff based his right to relief upon the ninth section of an act of the General Assembly of Kentucky, approved February 24, 1868, amending the charter of the Elizabethtown and Paducah Railroad Company. That section provided:

"That in case any county, city, town, or election district shall subscribe to the capital stock of said Elizabethtown and Paducah Railroad Company, under the provisions of this act, and issue bonds for the payment of such subscription, it shall be the duty of the county court of such county, the city council of such city, and the trustees of such town, to cause to be levied and collected a tax sufficient to pay the semiannual interest on the bonds issued and the cost of collecting such tax, and paying the interest, on all the real estate and personal

Opinion of the Court.

property in said county, city, or town, subject to taxation under the revenue laws of the state, including the amounts owned by residents of such county, city, or town, or election districts, which ought to be given in under the equalization laws." Sess. Acts 1867-8, p. 622.

This proceeding having been instituted against the judge of the county court alone, a demurrer to the petition, on the ground of defect of parties, raised the objection that, within the meaning of the foregoing statute, the justices of the peace of the county must be a part of the court when making a levy for the purpose asked by the plaintiff. The court below, being of opinion that the point was well taken, sustained the demurrer. An amended petition was filed, stating among other facts, that there were no justices of the peace of the county; that the justices elected from time to time, and who had qualified, resigned their positions in order that there might be no officers in existence who could, under the theory of the defendant, levy the required tax. A demurrer to the amended petition having been sustained, and the plaintiff having elected not to amend further, the action was dismissed.

Mr. Alexander P. Humphrey for plaintiff in error. Mr. W. 0. Dodd, Mr. J. L. Dodd, Mr. John Mason Brown, and Mr. George M. Davie were with him on the brief.

Mr. T. W. Brown for defendant in error.

MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.

The only question necessary to be considered is, whether the justices of the peace of Muhlenburg County constitute a necessary part of the county court when levying a tax to pay plaintiff's judgment.

The constitution of Kentucky, adopted in 1850, provided for the organization of a county court in each county, to consist of a presiding judge and two associate judges, any two of the three to constitute a quorum; with power in the General Assembly to abolish the office of associate judges whenever it

Opinion of the Court.

was deemed expedient, "in which event they may associate with said court any or all of the justices of the peace” elected in the several districts into which the county is divided. Constitution, Art. IV. It is also declared in the same instrument that "the General Assembly may provide, by law, that the justices of the peace in each county shall sit at the court of claims and assist in laying the county levy and making appropriations." Ib. § 37. The words "court of claims" are here employed to designate the county court when it sits for the purpose, among others, of ascertaining the claims against, and the expenses incurred by, the county, and of providing for their payment by appropriations out of the county levy — such levy being the annual tax imposed for county purposes, not upon property, but upon persons residing in the county, without reference to the value of their property. 1 Rev. Stat. Ky. 296, c. 26. The county court is also described as "the county court of levy and disbursements," when reference is made to its duty "to erect and keep a sufficient county jail." Ib. 329, c. 27, Art. 21, § 7.

The Revised Statutes provide that the county courts shall have jurisdiction to lay and superintend the collection and disbursement of the county levy; to erect, superintend, and repair all needful county buildings and structures; and "to superintend and control the fiscal affairs and property of the county, and to make provision for the maintenance of the poor. Ib. 327, c. 27, Art. XIX. They also provide that "the office of associate judge of the county court is abolished," and that "a county court shall be held in each county at the seat of justice thereof by a presiding judge of the court, on the days prescribed by law," except that "at the court of claims

the justices of the peace of the county shall sit with the presiding judge and constitute the court"; and "justices of the peace shall only compose a part of the court when it is engaged in laying the county levy, and in appropriating money and in transacting other financial business of the county." Ib. 328, Art. XXI, § 2.

The same provisions substantially are to be found in the General Statutes of the state which went into effect in 1873. Gen. Stat. Ky. 269, c. 27; Ib. 304, c. 28, Art. 15. 16, and 17.

Opinion of the Court.

It is clear that the levying and collection of a tax to meet a county subscription to the stock of a railroad company, is not a business connected with the laying of the county levy, or with appropriations of money out of such levy. But it is insisted that it is a matter relating to the "fiscal affairs" of the county, and is "financial business of the county," the control or management of which belongs, under the law, to the county court, composed of the presiding judge and the justices of the peace. On the other hand, the plaintiff in error contends, this case is taken out of the operation of the general statute, by the fact that the special statute under which the county made the subscription and issued the bonds in question imposes upon the county court, held by the presiding judge, the absolute duty of levying the necessary tax.

Upon this point there seems to be a settled course of decision in the highest court of Kentucky; and upon such a subject as the organization or composition of a tribunal established by the fundamental law of the state, those decisions are, at least, entitled to great weight. Burgess v. Seligman, 107 U. S. 20, 34; Claiborne County v. Brooks, 111 U. S. 400, 410; Norton v. Shelby County, 118 U. S. 425.

The first case in the Court of Appeals of Kentucky upon this question is Bowling Green and Madisonville Railroad Company v. Warren County, 10 Bush, 711, decided in 1875. That was a proceeding to compel the county court to execute and deliver bonds in payment of a subscription to the stock of the railroad company,-a subscription sustained a subscription sustained by a majority of the legal voters at an election held under the order of the county court, composed of the presiding judge alone. The defence was that the county court, held by that officer, the justices being absent, was without authority to call the election there in question. The court, speaking by Pryor, J., after observing that, as a general rule, when reference is made to a county court, or the action of a county court, it is understood as a court presided over by the county judge alone, said:

"A county court, held by the county judge or by the judge in conjunction with the justices, has no power to impose such taxation as this on the people of the county or to submit the

Opinion of the Court.

question of taxation to the popular vote, without some special legislative enactment; and in the absence of any such original jurisdiction belonging to either mode of organization, it remains to be determined whether the legislative intent, to be gathered from the provisions of appellant's charter, and particularly the sixteenth section, was to empower the county judge alone to exercise this right, or to require that the justices of the county should be associated with him. If the direction of the legislature had been imperative on the county court to enter the order submitting the question of subscription to the people, there would be little difficulty in determining this question; for, if the county court had been deprived of all discretion and compelled to obey a mandatory act, it would be immaterial whether the county court, composed of the justices or the county judge, made the order, as either or both must obey.

"In this case the legislature seems to have departed from the usual course of legislation with reference to such charters, and instead of exercising its own judgment as to the interests of the people in this particular locality, or of permitting them primarily to do so, required that the county court, preliminary to a vote on the question by the people, should first, in its discretion, determine the propriety of such legislative action. This action on the part of the county court was certainly not judicial. The appellant had no right or claim on the people to make the subscription or upon the county court to order the vote. The company was empowered by this act to make a request only of the county court that it might in its discretion accede to or refuse. It was a matter of vital importance to the people of the county of Warren, as well as the other counties to whom such a proposition might have been made by appellant, that they should fully understand the nature of the burden they were about assuming, and the legislature in its wisdom saw proper to give them the benefit of the judgment of those who represented the various localities and interests in each county, in order that they might determine whether the benefits to be derived from the construction of this railway would be an equivalent for the large expenditure to be made."

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