Board of Commissioners of Knox County v. Aspinwall
65 U.S. 376 (1860)

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U.S. Supreme Court

Board of Commissioners of Knox County v. Aspinwall, 65 U.S. 24 How. 376 376 (1860)

Board of Commissioners of Knox County v. Aspinwall

65 U.S. (24 How.) 376

ERROR FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF INDIANA

Syllabus

Where the commissioners of a county have authority by statute to issue bonds, and are required to levy a tax to pay the interest coupons as they become due, and, having issued such bonds, they neglect or refuse to assess the tax or pay the interest, a writ of mandamus is the proper legal remedy.

The circuit courts of the United States have authority to issue such writ of mandamus against the commissioners, where it is necessary, as a remedy for suitors in such court.

It is not a sufficient reason for setting aside a peremptory mandamus, that a previous alternative writ had not issued.

The case is stated in the opinion of the court.

Page 65 U. S. 383

MR. JUSTICE GRIER delivered the opinion of the Court.

The plaintiffs in error were defendants in a suit by Aspinwall and others, in which a judgment was recovered for interest coupons on bonds issued by the corporation. The cause was removed to this Court, and may be found reported in 62 U. S. 21 How. 539. The judgment of the circuit court was affirmed, and the record remitted.

In order to enforce the execution of this judgment, the plaintiffs moved for a mandamus to the commissioners to compel them to levy a tax to satisfy the judgment. The record shows that the board of commissioners appeared in the circuit court and resisted the motion, on several grounds, but chiefly that the court had no jurisdiction to issue a mandamus in this case.

The act of assembly of Indiana which authorized the issue of the bonds and coupons which were the subject of the litigation may be found in the former report of the case. 62 U. S. 21 How. 542

It appears that by the 3d section of this act it is made the duty of the commissioners, for the purpose of paying the interest due on the bonds, "at the levying of the county taxes for each year, to assess a special tax, sufficient to realize the amount of the interest to be paid for the year."

This the commissioners had not done, and refused to do so, on notice and request of the defendants in error.

Now it is not alleged nor pretended but that, if this judgment had been obtained against the corporation in a state court, the remedy now sought could have been obtained; for it must be admitted that according to the well established principles and usage of the common law, the writ of mandamus is a remedy to compel any person, corporation, public functionary, or tribunal, to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable. That this case comes completely within the category is too clear for argument, for even assuming that a general law of Indiana permits the public property of the county to be levied

Page 65 U. S. 384

on and sold for the ordinary indebtedness of the county, it is clear that the bonds and coupons issued under the special provisions of this act were not left to this uncertain and insufficient remedy. The act provides a special fund for the payment of these obligations, on the faith and credit of which they were negotiated. It is especially incorporated into the contract, that this corporation shall assess a tax for the special purpose of paying the interest on these coupons. If the commissioners either neglect or refuse to perform this plain duty, imposed on them by law, the only remedy which the injured party can have for such refusal or neglect is the writ of mandamus.

Why should not the circuit court of the United States be competent to give to suitors this only adequate remedy?

By the common law, the writ of mandamus is granted by the King's Bench, in virtue of its prerogative and supervisory power over inferior courts. The courts of the United States cannot issue this writ by virtue of any supervisory power at common law over inferior state tribunals. They can derive it only from the Constitution and laws of the United States.

The jurisdiction of these courts is, by the Constitution, extended to "controversies between citizens of different states." Congress has authority to make all laws which shall be necessary and proper for carrying this jurisdiction into effect. The jurisdiction of the court to give the judgment in this case is not disputed; nor can it be denied that by the Constitution, Congress has the power to make laws necessary for carrying into execution all its judgments. See Wayman v. Southard, 10 Wheat. 22. Has it done so?

By the 14th section of the Judiciary Act of 1789, it is enacted

"That courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles of the common law."

Now the "jurisdiction" is not disputed, and it is "necessary" to an efficient exercise of this jurisdiction that the court

Page 65 U. S. 385

have authority to compel the exercise of a ministerial duty by the corporation, which by law they are bound to perform, and by the performance of which alone the plaintiff's remedy can be effected. The fund to pay this judgment, by the face of the contract, is a special tax laid and to be collected by defendants. They refuse to perform a plain duty. There is no other writ which can afford the party a remedy, which the court is bound to afford, if within its constitutional powers, except that afforded by this writ of mandamus.

It is "agreeable to the principles of the common law," and, consequently, within the category as defined by the statute.

A court of equity is sometimes resorted to as ancillary to a court of law in obtaining satisfaction of its judgments. But no court, having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice. It is no objection, therefore, to the use of this remedy, that the party might possibly obtain another by commencing a new litigation in another tribunal.

We are of opinion, therefore, that the circuit court had authority to issue the writ of mandamus in this case.

It is no reason for setting it aside that a previous alternative writ had not issued. The notices served on the commissioners gave them every opportunity of defense that could have been obtained by an alternative mandamus. There was no dispute about facts which could affect the decision. The court gave them an opportunity to comply with the demand of the plaintiffs; their excuse for not doing so was palpably "a mere colorable adjournment or procrastination of the performances of the act, for the purpose of delay." It is equivalent to a refusal. Having refused to perform the duty which the law imposed upon them on the proper day, without even the pretense of a reason for such conduct, the peremptory mandamus was very properly awarded, commanding the duty to be performed "forthwith."

The judgment of the circuit court is therefore affirmed with costs.

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