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
539. The judgment of the circuit court was affirmed, and the record
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
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.
10 Wheat. 22. Has it done so?
By the 14th section of the Judiciary Act of 1789, it is
"That courts of the United States shall have power to issue
writs of scire facias,
habeas corpus, and all other
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
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
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
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
The judgment of the circuit court is therefore affirmed with