County officers of a state to do any act which they election, take scrip in payment of his judg are not authorized to do by the laws of the statement, but cannot be compelled to do so under from which they derive their powers. 2. It is not 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, under the statutes of the state. 3. This court will adopt the construction of a state statute settled in the courts of the state, though it may not accord with it in opinion. [No. 78.] this section. In the case of a judgment rendered upon ordinary indebtedness, payable from the ordinary revenues of the corporation, the judgment creditor can look only to the ordinary revenues for payment, and cannot enforce the levy and collection of a special tax for that purpose. The courts will, however, compel the levy of the highest rate of ordinary tax for the purpose of paying judgments ren Submitted Nov. 5, 1873. Decided Nov. 24, 1873. dered upon ordinary indebtedness. ERROR to the Circuit Court of the United IN ERROR the The case is stated by the court. Mr. Isaac Cook, for plaintiff in error: The judgment in this case having been rendered upon ordinary warrant, payable from the ordinary revenue of the county, and the board of supervisors having levied four mills ordinary county tax, which is the highest rate, as limited by section 710, that they could levy, their return to the alternative writ setting forth these facts was a complete answer to the information, and a bar to the issuance of the peremptory writ, unless some other statute gives the power to levy a special tax for the payment of the judgment. The claim is that section 3275 of revision of 1860, gives the power; and it is not claimed that any other statute does. Sections 3274 and 3275 of the revision of 1860 are as follows: 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 statute, 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 period of about ten years. Clark v. Davenport, 14 Ia. 494; R. Land Co. v. Sac Co. 39 Ia. 124, and R. Land Co. v. Sac Co., and William H. Hobbs, Treasurer, not yet reported; Coy v. City of Lyons, 17 Ia. 1; Oswald v. Thedinga, 17 Ia. 13; Porter v. Thomson, 22 Ia. 391; Coffin v. Davenport, 26 Ia. 515; McCready v. Sexton, 29 Ia. 356. "Sec. 3274. Public buildings owned by the The construction given by the supreme court state or any county, city, school district, or of Iowa to section 3275, in the cases cited, has other civil corporation, or any other public been uniform since the first case arose under property which is necessary and proper for car-that section in 1863. The decisions have all rying 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." "Sec. 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." been consistent with each other and they stand, I respectfully submit, upon well established principles. "Specific provisions relating to a particular subject, must govern in respect to that subject as against general provisions in other parts of the law, which might otherwise be broad enough to include it.' Felt v. Felt, 19 Wis. 208; De Winton v. Brecon, 26 Beav. 533; Pretty v. Solly, 26 Beav. 606. Section 3275, being general, and applying to all corporations alike, and merely directing how the payment of judgments is to be provided for, must, upon the principle stated in the last quotation, be controlled and limited by the specific enactments which, in any given case, expressly give to particular officers the power to levy taxes, and at the same time limit the rate of the levy; as, for example, section 710, which provides that the board of supervisors shall levy annually an ordinary county tax, which shall not exceed four mills on a dollar. The intention of the legislature, as plainly expressed in the statutes we have cited, is to limit the levy of county taxes to four mills on dollar, unless the tax payers themselves by a vote authorize an additional special levy. See, Rev. § 250 et seq., above cited. The revision of 1860 was the law in force when the judgment below was rendered in this case. The law of 1860 seemed to contemplate that a judgment might be discharged by scrip or evidences of debt, and that only in cases where no scrip was issued, taxes were to be levied; but in the cases from the Iowa reports, the Iowa courts have held that corporations that do issue scrip can be compelled to levy the highest rate of tax which the law empowers them to levy for the purpose of paying judg-a ments. Following the courts in this respect, the legislature, in the last revision, left out all that was said about paying a judgment with scrip. In every other respect the one statute is the exact equivalent of the other. See, State v. Davenport, 12 Ia. 342, where the court holds that a creditor might, at his NOTE-Adoption by Federal courts of inter pretation of state statutes by the state courtse notes, 11 C. C. A. 72; 29 C. C. A. 556. If section 3275 creates the power to levy special taxes to pay judgments, rendered upon ordinary indebtedness, then all these provisions. intended to limit the power of public officers and protect the tax payers, are nullified by the simple process of procuring a judgment to be rendered upon liquidated county indebtedness. In addition to the decisions of the supreme "The re-enactment of a previous statute operates as a legislative adoption of the judicial construction of such statute." Bk. v. Meagher, 33 Ala. 622; McKee v. McKee, 17 Md. 352; Drenan v. People, 10 Mich. 169; Draper v. Emerson, 22 Wis. 147. The law of Iowa is, under the 34th section of the judiciary act, 1 Stat. at L. 92, the law of this court in this case. Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261; Christy v. Pridgeon, 4 Wall. 196, 18 L. ed. 322. The only answer that I have ever heard to the view stated above, and all the answer that I apprehend can be made is to refer to the opinion of this court in the case of Butz v. Muscatine, 8 Wall. 575, 19 L. ed. 490. But I respectfully submit that that case furnishes no answer at all to the propositions urged by the plaintiff in error in this. cution having been awarded upon the judgment and returned, "Nulla bona," the relator sued out this 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 propose 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, which the circuit court sustained. Hence this writ of error. It is very plain that a mandamus will not be awarded to compel county omcers 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 It is proper to remember that all the cases of their being. And it may be observed that the that have been before this court from Iowa, office of a writ of mandamus is not to create relating to county or city indebtedness, arose duties, but to compel the discharge of those upon special indebtedness contracted in aid of already existing. A relator must always have railroads under section 250, above cited in the a clear right to the performance of a duty restcase of counties, and under some like provision ing on the defendant before the writ can be inof the city charter in the case of cities. I need voked. Is it, then, the duty of the board of not refer to the cases in detail to support this supervisors of a county in the state of Iowa to statement, for I believe the fact will not be levy a special tax, in addition to a county tax questioned. All the cases cited above from of four mills upon the dollar to satisfy a judg Iowa, in which the supreme court of the state ment recovered against the county for its ordihas held that a special tax could not be levied nary indebtedness? The question can be anto pay a judgment, are cases in which the judg-swered only by reference to the statutes of the ment was rendered upon ordinary indebtedness. state. The Iowa court has held that the mandamus will lie to compel the levy of a special tax to pay a judgment rendered upon special indebtedness. See Dox v. Johnson Co. 12 Ia. 237; Clark v. Davenport, 12 Ia. 335 and 14 Ia. 494. Since, therefore, no case has ever been before this court, in which the question of levying a tax to pay a judgment against a county in Iowa, rendered upon ordinary indebtedness, was involved, it is impossible that there can be any conflict or difference in the decisions of the two courts upon the question presented in this case. Messrs. Grant & Smith and Jno. B. Sanborn, for defendant in error: The question as to the duty of the defendants to levy a tax sufficient to pay the judgment, without regard to the ordinary power of taxation, has been settled by the court and requires no argument now. Butz v. Muscatine, supra. Mr. Justice Strong delivered the opinion of the court: On the 13th day of May, A. D. 1869, the relator obtained in the court below a judgment against the county of Carroll, for the sum of $19,946.76. The judgment was for the amount due upon sundry county warrants, issued for the ordinary expenditures of the county, and all of them issued after January 1, 1865. An exe *By an act of the legislature enacted [*78 on the 22d of March, 1860 (Civil Code, 1860, § 302, et seq.), 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 sald laws instead of the words "county judge." Civil Code, § 330. 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, 710), they are required to levy the following taxes annually upon the assessed value of the taxable property in the county: 1. 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. 2. 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. 3. For support of schools not less than one and not more than two mills on a dollar. And, 4, 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 express ly limited to the levy of a tax of not more than four mills upon the dollar. 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 re80*] lator's judgment *was obtained were all ordinary warrants, drawn upon the treasury of the county, and, as is admitted by the demurrer, drawn for the ordinary expenses of the county. None of them were 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 judg ment 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 mu nicipal 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 contingencies, a tax must be levied suf- [*81 ficient 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 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 the question whether such a tax might be laid 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 v. Davenport, 14 Iowa, 494, 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 deter-tax could be levied for their payment, unless mining their meaning and generally as binding 82*] upon United States *courts, cannot be questioned. It has been asserted by us too often to admit of further debate. See numerous cases, Bright. Fed. Dig. 163. 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. Green v. Neal, 6 Pet. 291; Suydam v. Williamson, 24 How. 427, 16 L. ed. 742; Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261. And we adopt the construction of a state statute settled in the courts of the state, though it may not accord with our opinion. McKeen v. Delancy, 5 Cranch, 22. 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. Judgment reversed and the record remitted, with directions to give judgment on the demurrer for the defendants below. *Mr. Justice Clifford, dissenting: [*84 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. Mr. Justice Swayne also dissented from the judgment upon the same ground. It is insisted, however, that in Butz v. Muscatine, 8 Wall. 575, 19 L. ed. 490, 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 83*] *construction and apply it to the case of the holder of the bonds, though it was ad- MAX verse 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 THE BATESVILLE INSTITUTE and William v. KAUFFMAN, L. Kauffman and C. (See S. C. 18 Wall. 151-155.) Assignment of debt carries mortgage-trust, how enforced-statute of limitations suspended by war. NOTE.-Suspension of statute of limitations dur ing war-see note to Hanger v. Abbott, 18 L. ed. U. S. 939. The assignment of a debt or demand, transfers collateral securities. The assignment of a debt or demand carries with it as an incident all securities which the debtor notes and in the judgment, and by their assignment had vested the entire title thereto in their assignees. The sole right of recovery is in the latter parties; and if equities exist between them and their assignors, they are to be settled between them at their convenience and in their own manner. These defendants have no interest in that part of the transaction. Allen v. Brown, 44 N. Y. 228; Danklessen v. Braynard, 3 Daly, 183. Again; no principle is better settled than this, that the assignment of a debt carries with Submitted Nov. 19, 1873. Decided Dec. 1, 1873. PPEAL from the Circuit Court of the Unit-it an assignment of a judgment or mortgage ed States for the Eastern District of Ar A kansas. The case is stated by the court. Mr. A. H. Garland, for appellants. Mr. Justice Hunt delivered the opinion of the court: The plaintiffs, who are citizens of the state of Louisiana, filed their bill against the defendant, a corporation of the state of Arkansas, to enforce and foreclose a builder's lien. In January, 1861, Womach and Welch obtained judgment against the Batesville Institute, and filed a builder's lien to secure the same. Being indebted to Hirsch and Adler, they made a deed of trust of their lien for their benefit, to W. E. Gibbs. Hirsch and Adler assigned the notes of Womach and Welch, as well as the deed of trust, to the appellees. Before the filing of this bill in 1868, Gibbs, the trustee, died, and no trustee has been substituted. The bill was filed to enforce the lien of this deed of trust. Thomas Cox, who had received a deed of the premises from the corporation, was made a party defendant. Cox and the corporation demurred to the bill, and the principal questions arise upon this demurrer. The defendant, Womach, interposed a defense of payment of the notes to Hirsch and Adler. by which it is secured. If a part only of the debt is assigned, a pro tanto portion of the security follows it. Pattison v. Hull, 9 Cow. 447; Jackson v. Blodget, 5 Cow. 202; Green v. Hart, 1 Johns. 580; Martin v. Mowlin, 2 Burr. 979; Prescott v. Hull, 17 Johns. 284. There is no force in the first objection. The third and fourth points of the demurrer rest upon the objection that Gibbs, the trustee, being dead, and, no successor having been appointed, the trust cannot be enforced. That the court have power to appoint a new trustee, and to compel the performance of the trust by him, is quite certain. It is, however, equally within the power of a court of equity to decree and enforce the execution of the trust, through its own officers and agents, without the intervention of a new trustee. Story, Eq. Jur. §§ 976, 1060, 1061. If by the deed to Cox the legal title to the property is now in him or his representatives, a perfect execution of the trust may be effected through a decree that they shall convey the property to the parties entitled to it; or the property may be decreed to be sold, and payment made from the proceeds of sale. The remaining point of the demurrer alleges that the lien of the judgment has been lost by lapse of time; that the *judgment was [*155 recovered more than three years before the fil The demurrants object, first, that the coming of the bill, and that no good reason appears plainants show no title which authorizes a suit by them. The point of this objection is that the transfer of the notes of Hirsch and Adler did not pass the title to the judgment on the mechanics' lien obtained for the security of the 154] notes. It is further insisted, under this head, that Hirsch & Adler were necessary parties to the suit. Neither of these objections is sound. Hirsch & Adler had parted with their interest in the may hold collateral to it, and all remedies the assignor had to secure and recover it, though not mentioned. Lindsey v. Bates, 42 Miss. 397; Raintan v. Harding, 3 Phila. 449; Hurt v. Wilson, 38 Cal. 263; Cathcart's Appeal. 13 Pa. 416; Waller v. Tate, 4 B. Mon. 529; Mehaffy v. Share, 2 Pa. 361. An assignment of a bond or note secured by a collateral mortgage or deed of trust, passes the mortgage or deed of trust. Miller v. Hoyle, 6 Ired. Eq. 269; Perot v. Levasseur, 21 La. Ann. 529; Lawrence v. Knap, 1 Root, 248, 1 Am. Dec. 42; Stewart v. Preston, 1 Fla. 10, 44 Am. Dec. 621. Costs which are an incident of a verdict do not pass by an assignment which does not pass the verdict. Lawrence v. Martin, 22 Cal. 173. An assignment of a judgment passes the debt on which it was rendered and a mortgage given to secure that debt. Bolen v. Crosby, 49 N. Y. 183; Vattison v. Hull, 9 Cow. 747. for not enforcing the same within the three years. The bill alleges, "that during the existence of the recent rebellion it was impossible, by reason of the resistance to the laws of the United States, to have said mechanics' lien foreclosed, all judicial proceedings in the courts of the United States being interrupted and suspended during a period of several years within the state of Arkansas." The judgment was recovered in March, 1861. The present suit was A guaranty to "the present holder" of a bond and mortgage, his executors and administrators, is a personal one, and does not pass by assignment. Smith v. Starr, 4 Huu, 123, 6 N. Y. S. C. (T. & C.) 387. Assignment of judgment and execution passes future collections, but not past. Robinson v. Towns, 30 Ga. 818. Assignment of note secured by a lien, passes the lien. Perry v. Roberts, 30 Ind. 244; Forwood v. Dehoney, 5 Bush, 174; Guy v. Butler, 6 Bush, 508. Assignment of a bond for a deed of lands passes rents accruing after assignment, but not accrued rents unless it is so stated in assignment. Van Driel v. Roseirz, 26 Iowa, 575. In Maine the legal estate is in the mortgagee and there can be no assignment of the mortgagee's interest by a mere transfer of the debt, or otherwise except by an instrument under seal. Prescott v. A guaranty of collection of a bond and mortgage Ellingwood, 23 Me. 345: Smith v. Kelley, 27 Me. given by a previous assignor, passes by a subse-237: Dwinel v. Perley, 32 Me. 197; Lyford v. Ross, quent assignment as an incident of the debt, though 33 Me. 196; Mitchell v. Burnham, 44 Me. 286; not mentioned in the assignment. Craig v. Parkis, Johnson v. Leonards, 68 Me. 239. 40 N. Y. 181. |