CONCURRING OPINION. Under House Bill No. 1064, chapter 768, Loc. Priv. Laws 1928, Marion county issued and sold 150 negotiable notes of said county in denominations of $1,000 each, payable to bearer, with 5 1/2 per cent. interest, the interest *Page 20 payable semiannually. Ten of these notes or bonds matured on March 15, 1932, and were owned by one Ralph May, appellant's assignor. By the act aforesaid the board of supervisors of the county were "authorized and empowered to make a special tax levy annually at the time provided by law for making the general tax levy for the purpose of paying said loan warrants or notes at maturity, together with the interest thereon."
The notes or bonds maturing during the years previous to 1932 had been fully paid with interest, but the board for the reasons hereinafter to be mentioned, failed to levy such a tax in 1931 to meet the said bonds owned by May, or to meet $25,000 in bonds owned by others, maturing in 1932. Instead of so doing, the county issued its refunding bonds under the authority of section 5986, Code 1930, in the sum of $35,000, with 6 per cent. interest, and took such steps that these refunding bonds were validated on December 21, 1931; the purpose or anticipation being that, at the increased rate of interest, the holders of the said bonds maturing in 1932 would be willing to exchange their old bonds for the refunding bonds, or else that the refunding bonds, bearing such a high rate of interest, could be readily sold, and the money thus realized used to pay off the maturing bonds.
The other bondholders accepted the refunding bonds, but May refused, and the county failed in its efforts to sell the refunding bonds by which to obtain the money to pay May, who thereupon sued the county in the federal court, obtained judgment, and procured also a writ of mandamus to the board, requiring them to levy and have collected a sufficient special tax to pay the said May's bond with interest. The writ was obeyed by the board and other officers of the county, and the May bonds, with all interest and the court costs, were fully paid.
May having died, appellant, the lawful assignee of his estate, filed its action in the circuit court of said county, *Page 21 to recover of the members of the board of supervisors of the county and the sureties on their official bonds, the sum of $1,500, attorney's fees, which May had been obliged to pay out in the matter of enforcing his demands aforesaid in the federal court, the present action being predicated upon section 5993, Code 1930, a section near the conclusion of said chapter 152, Code 1930. Said section reads as follows: "For failure or refusal to comply with the foregoing provisions any official charged with any duties hereunder shall be liable on his official bond to any holder of any bond or coupon for any and all expenses incident to the collection of same, and for all damages which may have accrued on account of the failure to pay same promptly at the place of payment at maturity." It is the contention of appellant that section 5984, Code 1930, a foregoing provision in said chapter 152 of the Code, required boards of supervisors to annually levy a special tax sufficient to pay the principal and interest of bonds as they fall due, and that the failure of the board to make such annual special levy is sufficient to bring into operation the quoted section in regard to the recovery of expenses.
Although the quoted statute is penal in its nature, it may be conceded for the purpose of this case that had the board simply neglected to take any steps at all, they would have been individually liable on their bonds, and it may be further conceded that had the steps taken been such as to amount to no more than a formal maneuver which they should have known would not procure the money due, and when due they would still be liable. But the statutory duty imposed upon them was to raise the money due, and the penalty prescribed was to incite them to action in that respect. They were not, however, confined to one method only for the raising of the money. Two statutory methods were placed at their disposal, one to levy a special tax and the other to issue refunding bonds. Section 5986 of the same chapter 152. Whether they should pursue one method or the other *Page 22 was a matter committed to their judgment and discretion, according to the exigencies of the situation and as was best in their opinion, so long as in pursuing the alternative method they acted upon reasonable or substantial grounds.
There is no fact of common knowledge more readily acceptable as such, and as to its extent, than that bearing upon the deep depression which had settled over this country, and upon every part of it, in 1931. The pervading extent of this calamitous country-wide misfortune was such that an exceedingly large portion of property owners were unable to pay their ad valorem taxes, and millions of acres of land were being sold to the state for delinquent taxes. It was impossible for a board of supervisors to estimate with even a working approximation as to what rate of a special levy would be required to produce a given sum, and to be certain to produce it, the levy would have to be made so high as to be unbearably burdensome upon those of the taxpayers still able to pay.
In this calamitous situation the board here availed of the alternative course of issuing refunding bonds — a course which was pursued at that time in a great majority of such cases throughout the state. They issued these refunding bonds at a higher rate, at 6 per cent., a rate so high that never before had county-wide bonds, duly validated and rendered beyond question of legality, failed to find a ready sale and produce the money. Under the adverse and almost impossible conditions then confronting them, having pursued the alternative method allowed to them to raise this money, and having done it upon good reasons and in such manner as to have justified every reasonable expectation that their efforts would be successful, they are, in my opinion, not justly liable under the penal statute here invoked, and the judgment of the trial court was correct. *Page 23