This is a proceeding by mandamus, commenced in the circuit court of the United States for the Eastern district of Missouri. The information is based upon a judgment obtained by the relator in that court, April 7, 1881, for the sum of $6,659.80, the amount of certain past-due coupons of bonds issued by the county of Cape Girardeau, in that state, for the payment of a subscription made by the township of the same name to the capital stock of the Cape Girardeau & State Line Railroad Company. The authority for making the subscription and issuing the bonds was a popular vote at a township election held on the thirteenth of April, 1869, under a statute of March 23, 1868, entitled 'An act to facilitate the construction of railroads in the state of Missouri.' Laws Mo. 1868, p. 92. The first section of that act prescribes the condition upon which such elections could be ordered by the county court, and requires coupon bonds to be issued in payment of any subscription voted, 'if it shall appear, from the returns of such election, that not less than two-thirds of the qualified voters of such township voting at such election are in favor of such subscription.' By the second section it is made the duty of the county court, from time to time, in order to pay any subscription so voted, or the interest and principal of any bond issued on account of such subscription, to 'levy and cause to be collected, in the same manner as county taxes, a special tax, which shall be levied on all the real estate lying within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes.' By an act passed March 10, 1871, the second section of the last-mentioned statute was so amended as to require this special tax to be 'levied on all the real estate and personal property, including all statements of merchants doing business within the said city, town, township, or county, lying and being within the township making the subscription, in accordance with the valuation then last made by the county assessor for county purposes: provided, however, that no county, city, town, or township shall ever, in the aggregate, subscribe a sum exceeding ten per cent. of the last annual assessment within said county, city, or township.' Laws Mo. 1871, p. 55.
It is averred in the information that a demand was made upon the county court and the judges thereof to pay the said judgment, interest, and costs, or that they levy and cause to be collected upon the real estate and personal property in the township subject to taxation, including merchants' licenses, a tax according to law, for the purpose of paying the said judgment, interest, and costs; that such demand was refused; and that the county has no property out of which the judgment, interest, and costs can be made. The return to the alternative writ of mandamus admits the right of the relator to a levy of a tax upon the real estate in the township, but to so much of the information as seeks to compel a levy upon personal property and merchants' licenses the county makes the following defense: That the act of March 10, 1871, was repealed by the general assembly of Missouri in 1879, before the relator obtained his judgment; and that the county court has not had since such repeal, and has not now, any authority to levy taxes upon personal property or merchants' licenses, in the township of Cape Girardeau, for the purpose of paying relator's judgment.