In that case, the complainant Walkley had procured judgments
against the City of Muscatine for interest on bonds of the city,
executions had been returned "
nulla bona," the mayor and
aldermen had refused to levy a tax for the payment of the judgments
and had used the annual tax for other purposes, and paid nothing to
plaintiff.
Walkley then filed his bill in equity praying a decree that the
mayor and aldermen be compelled to levy a tax and appropriate so
much of its proceeds as might be necessary to pay his
judgments.
This Court said, by Mr. Justice Nelson, that the remedy was by
mandamus at law, and "we have been furnished with no authority for
the substitution of a bill in equity and injunction for the writ of
mandamus," p.
73 U. S. 483,
and he adds that
"a court of equity is invoked as auxiliary to a court of law in
the enforcement of its judgments in cases only where the latter is
inadequate to afford the proper remedy."
Pp.
73 U. S.
483-484.
Page 115 U. S. 554
By inadequacy of the remedy at law is here meant not that it
fails to produce the money -- that is a very usual result in the
use of all remedies -- but that in its nature or character it is
not fitted or adapted to the end in view. This is clearly stated in
the next case in this Court on the same subject, namely
Rees v.
Watertown, 19 Wall. 107.
In that case as in this, execution on a judgment against the
City of Watertown had been returned "no property found." Writs of
mandamus had been issued requiring the levy of a tax to pay the
judgment. These writs had failed by reason of resignations of the
officers of the city to whom they were directed, and this had
occurred more than once. The court was pressed with the doctrine
that, the writ of mandamus having proved inadequate, a court of
equity should provide some other remedy. To this it replied:
"We apprehend that there is some confusion in the plaintiff's
proposition upon which the present jurisdiction is claimed. It is
conceded, and the authorities are too abundant to admit a question,
that there is no chancery jurisdiction where there is an adequate
remedy at law. The writ of mandamus is, no doubt, the regular
remedy in a case like the present, and ordinarily it is adequate
and its results satisfactory. The plaintiff alleges, however, in
the present case that he has issued such a writ on three different
occasions; that by means of the aid afforded by the legislature and
by the devices and contrivances set forth in the bill, the writs
have been fruitless; that in fact they afford him no remedy. The
remedy is in law and in theory adequate. The difficulty is in its
execution only. The want of a remedy and the inability to obtain
the fruits of a remedy are quite distinct, and yet they are
confounded in the present proceeding. To illustrate: the writ of
habere facias possessionem is the established remedy to
obtain the fruits of a judgment for the plaintiff in ejectment. It
is a full, adequate, and complete remedy. Not many years since,
there existed in central New York confederations of settlers and
tenants disguised as Indians, and calling themselves such, who
resisted the execution of this process in their counties, and so
effectually that for some years no landlord could gain possession
of the land. There was a
Page 115 U. S. 555
perfect remedy at law, but through fraud, violence, or crime its
execution was prevented. It will hardly be argued that this state
of things gave authority to invoke the extraordinary aid of a court
of chancery. The enforcement of the legal remedy was temporarily
suspended by means of illegal violence, but the remedy remained as
before. It was the case of a miniature revolution. The courts of
law lost no power, the court of chancery gained none. The present
case stands upon the same principle. The legal remedy is adequate
and complete, and time and the law must perfect its execution."
Pp.
86 U. S.
124-125.
The language here used is not only applicable to the case under
consideration, but in regard to the facts they are the same.
In that case, the Court said:
"The plaintiff further invokes the aid of the principle that all
legal remedies having failed, the court of chancery must give him a
remedy, and that there is a wrong which cannot be righted
elsewhere, and hence the right must be sustained in chancery. The
difficulty arises from too broad an application of a general
principle. . . . Generally its jurisdiction (chancery) is as well
defined and limited as is that of a court of law. . . . Lord Talbot
says there are cases indeed in which a court of equity gives remedy
where the law gives none, but where a particular remedy is given by
law, and that remedy bounded and circumscribed by particular rules,
it would be very improper for this court (chancery) to take it up
where the law leaves it, and extend it further than the law allows.
. . . Generally its jurisdiction depends on legal obligations, and
its decrees can only enforce remedies to the extent and in the mode
established by law. A court of equity cannot, by averring there is
a right but no remedy known to the law, create a remedy in
violation of law, or even without the authority of law. It acts
upon established principles not only, but through established
channels."
Pp.
86 U. S.
121-122.
The court also said the power to direct a tax to be levied is
the highest attribute of sovereignty, and is exercised by
legislative authority only. It is a power that has not been
extended to the judiciary. "Especially," says the opinion,
"is it beyond
Page 115 U. S. 556
the power of the federal judiciary to assume the place of a
state in the exercise of this authority at once so delicate and so
important."
Pp.
86 U. S.
116-117.
These propositions are reasserted in a later case of the same
term of the court.
Heine v. Levee
Commissioners, 19 Wall. 655.
It was, like the present, a bill in chancery to enforce
collection of taxes where no officers could be found whose duty
could be enforced by mandamus. "There does not," said the
Court,
"appear to be any authority, founded on recognized principles,
of a court of equity on which the bill can be sustained. If
sustained at all, it must be on the broad ground that because the
plaintiff finds himself unable to collect his debt by proceedings
at law, it is the duty of a court of equity to devise some mode by
which it can be done. It is, however, the experience of every day
and of all men that debts are created which are never paid, though
the creditor has exhausted all the resources of the law. It is a
misfortune which, in the imperfection of human nature, admits of no
redress. The holder of a corporation bond must, in common with
other men, submit to this calamity when the law affords no
relief."
P.
86 U. S.
660.
The Court added that the exercise of the power of taxation
belonged to the legislature, and not to be judiciary, and, in that
case, it had delegated the power to the levee commissioners.
"If that body has ceased to exist, the remedy is in the
legislature either to assess the tax by special statute or to vest
the power in some other tribunal. It certainly is not invested as
in the exercise of an original jurisdiction in any federal court. .
. . It is not only not one of the inherent powers of the court to
levy and collect taxes, but it is an invasion by the judiciary of
the federal government of the legislative functions of the state
government."
Ib. And it cites
Walkley v. Muscatine and
Rees v. Watertown as in point.
MR. JUSTICE BRADLEY, who decided the case on the circuit, had
there elaborately discussed the whole subject.
See Heine v.
Levee Commissioners, 1 Woods 246. This language is
repeated
Page 115 U. S. 557
and approved in
State Railroad Tax Cases, 92 U.
S. 615.
The same principles are laid down in
Barkley v. Levee
Commissioners, 93 U. S. 258, in
which the whole subject is reviewed. It is said there that the
power to compel by mandamus municipal officers to perform the
ministerial duty of levying proper taxes is a distinct power from
the levy and collection of taxes by a court of chancery, and
"the truth is that a party situated like petitioner (where there
were no such officers) is forced to rely on the public faith of the
legislature to supply him a proper remedy. The ordinary remedy
having failed by lapse of time and the operation of unavoidable
contingencies, it is to be presumed that the legislature will do
what is equitable and just, and, in this case, legislative action
seems to be absolutely requisite."
In the case of
Meriwether v. Garrett, 102
U. S. 501, the Legislature of Tennessee had repealed the
charter of the City of Memphis and abolished the city organization
at a time when there were taxes assessed and uncollected amounting
to several millions of dollars and debts of the city to a much
larger amount. Some of these taxes had been levied under compulsion
of writs of mandamus from the circuit court of the United States. A
bill in chancery was filed in that court by some of these creditors
praying the appointment of a receiver, who should take charge of
all the assets of the City of Memphis, collect these taxes, and pay
them over to the creditors, and generally to administer the
finances of the extinct city as a court of equity might administer
the insolvent estate of a dead man.
The decree of the circuit court granting relief according to the
prayer of the bill was reversed in this Court, and the bill
dismissed. Owing to a division in the Court, no elaborate opinion
representing the whole Court was given, but THE CHIEF JUSTICE
announced eight propositions, on which the majority were agreed. Of
these propositions the following are pertinent here:
"3. The power of taxation is legislative, and cannot be
exercised otherwise than under the authority of the legislature.
"
Page 115 U. S. 558
"4. Taxes levied according to law before the repeal of the
charter, other than such as are levied in obedience to the special
requirements of contracts entered into under the authority of law
and such as were levied under judicial direction for the payment of
judgments recovered against the city, cannot be collected through
the instrumentalities of a court of chancery at the instance of
creditors of the city. Such taxes can only be collected under
authority from the legislature. If no such authority exists, the
remedy is by appeal to the legislature, which alone can grant
relief. Whether taxes levied in obedience to contract obligations
or under judicial direction can be collected through a receiver
appointed by a court of chancery if there be no public officer
charged with authority from the legislature to perform that duty is
not decided, as the case does not require it."
But though the question was not then decided, and it is urged
upon us now, we see no more reason to hold that the collection of
taxes already assessed is a function of a court of equity than the
levy or assessment of such taxes. A court of law possesses no power
to levy taxes. Its power to compel officers who are lawfully
appointed for that purpose, in a case where the duty to do so is
clear and is strictly ministerial rests upon a ground very
different from and much narrower than that under which a court of
chancery would act in appointing its own officer either to assess
or collect such a tax.
In the one case, the officers exist, the duty is plain, the
plaintiff has a legal right to have these officers perform that
duty for his benefit, and the remedy to compel this performance --
namely the writ of mandamus -- has been a well known process in the
hands of the courts of common law for ages. In the other, there
exists no officer authorized to levy the tax or to collect it when
levied. The power to enforce collection when the tax is levied or
to cause it to be levied by existing officers is a common law
power, strictly guarded and limited to cases of mere ministerial
duty, and is not one of the powers of a court of chancery. It would
require in this Court not the compulsory process against some
existing officer to make him
Page 115 U. S. 559
perform a recognized duty, but the appointment by the court of
such an officer and a decree directing him what to do.
In the one case, his power proceeds from the law and he is
compelled to exercise it; in the other, it proceeds from the court
which first makes its own decree and makes an officer to enforce
it. No such power has ever yet been exercised by a court of
chancery. The appointment of its own officer to collect taxes
levied by order of a common law court is as much without authority
as to appoint the same officer to levy and collect the tax. They
are parts of the same proceeding, and relate to the same matter. If
the common law court can compel the assessment of a tax, it is
quite as competent to enforce its collection as a court of
chancery. Having jurisdiction to compel the assessment, there is no
reason why it should stop short, if any further judicial power
exists under the law, and turn the case over to a court of equity.
Its sheriff or marshal is as well qualified to collect the tax as a
receiver appointed by the Court of Chancery.
The difficulty is that no power exists in either court to fill
the vacancy in the office of tax collector, and the case of
Lee County v.
Rogers, 7 Wall. 175, where the laws of the State of
Iowa expressly authorize the court to enforce its writ of mandamus
by making such appointment, the only case in which it has ever been
done, shows that without such legislative authority, it cannot be
done.
It is the duty of the marshals of the federal courts and the
sheriffs of state courts to levy executions issuing from these
courts on the property of defendants and sell it to raise money to
pay their judgments. Let us suppose that, for some reason or other,
the office of marshal or sheriff became vacant for a while. Would
that authorize the court of equity of the federal or state
government to appoint a sheriff or marshal? or to appoint a
receiver to levy the execution? or, if it had been levied, to sell
the property, collect the purchase money, and pay it to plaintiff?
If this cannot be done, if it never has been done, why can it do a
much more unjudicial act by appointing a collector to collect the
taxes or, what is still less appropriate, appointing a receiver,
and endow him with that power.
Page 115 U. S. 560
To appoint a marshal or a sheriff to execute the process of a
court to enforce the judgment of that court is not such a wide
departure from the judicial function as to appoint a receiver to
collect taxes, but no case has been cited of the exercise of even
the former power by the court, much less the appointment, by a
court of chancery, of an officer to execute the processes of a
court of law. The appointment of special masters or commissioners
to make sales under decrees in chancery is the ordinary mode of
that court to enforce its decrees in cases where the court has
jurisdiction of the subject matter of the suit.
Not only are the decisions here reviewed of our own court
clearly opposed to the exercise of this power by the court of
equity, but the decisions of the highest court of the State of
Kentucky are equally emphatic. It is the powers derived from the
statute law of that state under which alone this tax can be
collected. The issue of the bonds on which the judgment was
obtained was by virtue of a special statute, and that statute
prescribed the mode of levying and collecting this tax.
It enacted that its collection should not be by the sheriff who
collected the ordinary taxes for the state and county, but that a
special tax collector should be appointed for that purpose by the
justices of the county court who levied the tax. The Court of
Appeals, construing this statute, which was in existence when the
bonds were issued, holds that no other officers but these can
collect the taxes, and has decided, both in reference to this law
and the constitution of the state, that a court of chancery cannot
appoint such an officer or exercise this function of tax collector.
McLean County Precinct v. Deposit Bank, 81 Ky. 254.
This decision, if not conclusive, is entitled to great weight as
construing the statute under which alone this tax can be levied and
collected.
These considerations require that the answers to each of the
three questions certified to us by the judges of the circuit court
be in the negative, and that the decree of that court dismissing
the bill be
Affirmed.
Page 115 U. S. 561
MR. JUSTICE HARLAN, dissenting.
The present case presents a question not heretofore decided by
this Court.
The appellant has judgments against the County of Allen in the
Commonwealth of Kentucky, which were rendered in the Circuit Court
of the United States for the Kentucky District, for the amount of
unpaid interest on bonds issued by that county in payment of its
subscription to the capital stock of a railroad company, the
subscription having been made and the bonds issued under express
legislative authority. The county court refused to levy a tax to
satisfy such judgments, although it was authorized and required by
the act in virtue of which the bonds were issued to levy
"as listed and taxed under the revenue laws of the state a sum
sufficient to pay the interest on such bonds as it accrues,
together with the costs of collecting the same."
It was further provided by the same act that the county court
"may appoint collectors for said tax," or may require the sheriff
to collect the tax.
In 1876, the General Assembly of Kentucky passed a special act
releasing the Sheriff of Allen County from the duty of giving bond
for the collection of any railroad tax and providing that the
"county court shall at the instance or motion of any person, or
by request, appoint a special collector to collect all taxes or
levies on said county for railroad purposes, and shall require
bonds, with security, to be approved by the court, for the faithful
discharge of all duties incumbent on him."
Execution upon Thompson's judgments having been returned "no
property" and the county court having refused to levy a tax to pay
them, the circuit court, upon Thompson's application, issued a
mandamus against the judge and justices constituting the county
court commanding them to perform the duty enjoined by statute of
levying and cause to be collected from the taxable property of the
county a sum sufficient to satisfy the before-mentioned judgments
and the costs of collecting the same. Subsequently, on May 28,
1881, the county court, in conformity with the foregoing order,
made a levy upon the taxable property of the taxpayers of the
county "to pay the judgments in favor of T. W. Thompson against
said
Page 115 U. S. 562
county." It was further ordered by the county court
"that J. T. Stark be, and is hereby, appointed collector of said
levy, upon his executing bond, with approved security, before the
county court, and he will proceed at once to collect said levy, and
pay the same over in satisfaction of the judgments heretofore named
in favor of T. W. Thompson or his attorney."
Stark declined to accept the office of collector. It is alleged
in the bill and admitted in the answer
"that the sentiments and feelings of a large majority of the
citizens and taxpayers of the said Allen County are very hostile
and outspoken against the collection or payment of the said
tax."
The county court having announced that it was unable to find any
person who was willing to accept the appointment of collector and
undertake the collection of the levy, and Thompson being unable, as
he alleges, to find any person within the county who is willing to
qualify as collector, the present suit in equity was commenced
against the county, and a large number of its taxpayers, whose
names are given in the bill, together with the amount of their
taxable property as assessed by the proper county authorities, with
the taxes due from each, as shown by the public records of the
county. The bill sets out the foregoing facts and asks that the
several taxpayers, who are made defendants, be required to pay into
court the several sums due from them, as shown by the levy made by
the county court, and that other taxpayers not specifically named
as defendants be required to pay into court or to some person
appointed by it as receiver the amount due from them respectively,
such sums to be applied in satisfaction of Thompson's judgments.
There is also a prayer for general relief.
The parties, by their counsel, stipulated at the hearing of the
cause, and it is to be taken as true, that the county court
"has in good faith and diligently endeavored to find a fit and
proper person to act as collector of the railroad taxes in said
county, and the special levies of taxes in the bill of complaint
set forth,"
that "no such fit and proper person can be found who will
undertake and perform the office and duty of such collector," and
that
"the complainant is without remedy for the collection of the
debt herein except through the aid of this
Page 115 U. S. 563
court in the appointment of a receiver as prayed for in the bill
or other appropriate orders of the court."
Under this state of facts, my brethren, affirming the decree
below, hold that the circuit court, sitting in equity, was entirely
without authority in any way to cause the taxpayers of Allen County
to bring into court the sums due from them respectively, that the
same may be applied in satisfaction of Thompson's judgments. In my
judgment there is nothing in our former decisions which prevents a
court of equity from giving substantial relief to the complainant.
In
Walkley v. City of
Muscatine, 6 Wall. 482, the application was to a
court of equity to compel the levy of a tax. The only point decided
was that where a municipal corporation refused to levy a tax to
satisfy a judgment against it, the remedy of the creditor was a
mandamus to compel such levy, and that
"a court of equity is invoked as auxiliary to a court of law in
the enforcement of its judgments in cases only where the latter is
inadequate to afford the proper remedy."
In
Rees v. City of
Watertown, 19 Wall. 107, a federal court sitting in
equity was asked, in the absence of a levy, to subject the property
of the taxpayers of a city to the payment of complainant's
judgments against it, and that the marshal of the district be
empowered to seize and sell so much of their property as might be
necessary for the satisfaction of such judgments. In other words,
the court was asked to make a levy of taxes. And in
Heine v. Levee
Commissioners, 19 Wall. 655, it appears that
holders of bonds issued by the levee commissioners --
no
judgment at law having been recovered on the bonds nor any attempt
made to collect the amount due by suit in a common law court
-- brought a suit in equity and prayed that the commissioners be
required to assess and collect the tax necessary to pay the bonds
and interest, and if, after reasonable time, they failed to do so,
that the district judge of the parish, who was by statute
authorized to levy the tax when the commissioners failed to do so,
be ordered to make the levy. It was decided that the power of
taxation belonged to the legislative, not to the judicial, branch
of the government, that in that case the
Page 115 U. S. 564
power must be derived from the legislature of the state; if the
body known as levee commissioners had, by resignation of their
members, ceased to exist, the remedy was in the legislature either
to assess the tax by special statute or to vest the power in some
other tribunal; that in any event, a federal court was without
power to levy and collect a tax authorized by a state law. That
such was the extent of the decision in that case is shown in
state Railroad Tax Cases, 92 U. S.
575, where, referring to
Heine v. Levee
Commissioners, it was said:
"The levy of taxes is not a judicial function. Its exercise, by
the constitutions of all the states and by the theory of our
English origin, is exclusively legislative."
In
Barkley v. Levee Commissioners, 93 U. S.
258, the Court was asked to compel, by the process of
mandamus, a board of levee commissioners, the members of which had
resigned, to assess and collect a tax for the payment of a certain
judgment against the parish, or, if that could not be done, that
the police jury of the parish be required to make such assessment
and collection, or, if that could not be done, that the United
States marshal should be required to assess at once or by
installments, from year to year, and collect sufficient taxes upon
the property subject to taxation for levee purposes to pay the
judgment. It was held that a mandamus could not issue because the
board of levee commissioners had become extinct as a body, and that
the court had no general power to commission the marshal to levy
taxes for the purpose of satisfying a judgment.
These cases only establish the doctrine that the levying of
taxes is not a judicial function.
It seems to me that the granting of relief to Thompson will not
in any degree disturb the principles announced in the foregoing
cases. The bill does not ask the court to usurp the function of
levying taxes. That duty has been performed by the only tribunal
authorized to do it,
viz., the County Court of Allen
County. Nothing remains to be done except to collect from
individuals specific sums of money which they are under legal
obligation to pay. The collection of these sums will not interfere
with any discretion with which
Page 115 U. S. 565
the Allen County Court is invested by law, for by its own order,
made in conformity with the law of the state, and by the judgment
in the mandamus proceedings, the sums due from the individual
defendants and from other taxpayers has been set apart for the
payment of Thompson's judgments. Those sums, when collected, cannot
be otherwise used. As the county court cannot find anyone who will
accept the office of special collector, and as the parties agree
that there is no mode of collecting the sums set apart in the hands
of the individual defendants and other taxpayers for the payment of
Thompson, I am unable to perceive why the circuit court, sitting in
equity, may not cause these sums to be applied in satisfaction of
its judgments at law. The plaintiff has no remedy at law, for, the
common law court in rendering judgment has done all that it can do,
and the local tribunal, by levying the required tax and seeking the
aid of a special collector to collect it, has done all that it can
do. There is no suggestion or even pretense that the taxpayers who
are sued dispute the regularity of the assessment made against them
by the county court. Admitting their legal liability for the
specific amounts assessed against them and conceding that what they
owe must, when paid, go in satisfaction of Thompson's judgments,
they dispute the authority of any judicial tribunal to compel them
to pay it over. With money in their hands equitably belonging to
the judgment creditor, they walk out of the court, whose judgments
remain unsatisfied, announcing in effect that they will hold
negotiations only with a "special collector" who has no
existence.
That the court below, sitting in equity -- after it has given a
judgment at law for money and after a return of
nulla bona
against the debtor -- may not lay hold of moneys, set apart
by
the act of the debtor in the hands of individuals
exclusively for the payment of that judgment, and which
money, the parties agree, cannot be otherwise reached than by being
brought into that court, under its orders, is a confession of
helplessness on the part of the courts of the United States that I
am unwilling to make. I therefore dissent from the opinion and
judgment in this case.