After judgment at law for a sum of money against a municipal
corporation, sued execution returned unsatisfied, mandamus, not
bill in equity, is the proper mode to compel the levy of a tax
which the corporation was bound to levy to pay the judgment.
A bill had been filed in that court to compel the authorities of
the City of Muscatine to levy a tax upon the property of the
inhabitants, for the purpose of paying the interest on certain
bonds, to the amount of $130,000, that had been issued for the
benefit of the Mississippi & Missouri Railroad Company. It
appeared that a judgment had been recovered in the same court
against the city for $7,666, interest due on the bonds held by the
plaintiff; that execution had been issued and returned unsatisfied,
no property being found liable to execution; that the mayor and
aldermen had
Page 73 U. S. 482
been requested to levy a tax to pay the judgment, but had
refused; that the city authorities possessed the power under their
charter to impose a tax of one percent on the valuation of the
property of the city, and had made a levy annually, but had
appropriated the proceeds to other purposes, and wholly neglected
to pay the interest on the bounds before the judgment, or to pay
the judgment since it was rendered. The bill prayed that the mayor
and aldermen might be decreed to levy a tax, and appropriate so
much of the proceeds as might be sufficient to pay the judgment,
interest, and costs. An answer was put in, and replication and
proofs taken. On the hearing, the court dismissed the bill. The
creditor appealed.
MR. JUSTICE NELSON delivered the opinion of the Court.
We are of opinion the complainant has mistaken the appropriate
remedy in the case, which was by writ of mandamus from the circuit
court in which the judgment was rendered against the defendants.
The writ affords a full and
Page 73 U. S. 483
adequate remedy at law. There are numerous recent cases in this
Court on the subject. [
Footnote
1]
We have been furnished with no authority for the substitution of
a bill in equity and injunction for the writ of mandamus. An
injunction is generally a preventive, not an affirmative remedy. It
is sometimes used in the latter character, but this is in cases
where it is used by the court to carry into effect its own decrees
-- as in putting the purchaser under a decree of foreclosure of a
mortgage into the possession of the premises. Even the exercise of
power to this extent was doubted till the case of
Kershaw v.
Thompson, [
Footnote 2] in
which the learned chancellor, after an examination of the cases in
England on the subject, came to the conclusion he possessed it;
not, however, by the writ of injunction, but by the writ of
assistance. Chancellor Sanford, who adopted the practice in
Ludlow v. Lansing, [
Footnote 3] observed that it was not usual before the case
of Kershaw v. Thompson, but that he had examined all the cases
cited, and that the English cases seemed to warrant the decision.
He further observed that if the decision of the late chancellor was
in any respect new, the innovation was, in his opinion, judicious
and fit.
The counsel for the complainant has referred to some expressions
by the learned judge in the opinion delivered in the case of
Board of Commissioners of Knox County v. Aspinwall, as
giving countenance to the remedy by bill in equity, but this is a
clear misapprehension. It is there observed "that a court of equity
is sometimes resorted to as auxiliary to a court of law in
obtaining satisfaction of judgments. But no court," he observes,
"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." We add, that a court of
equity is invoked as auxiliary to a court of law in the
enforcement
Page 73 U. S. 484
of its judgments in cases only where the latter is inadequate to
afford the proper remedy. The principle has no application in the
present case.
Decree affirmed.
[
Footnote 1]
Board of Commissioners of Knox
County v. Aspinwall, 24 How. 376;
Supervisors v. United
States, 4 Wall. 435;
Von
Hoffman v. City of Quincy, 4 Wall. 535;
City of Galena v.
Amy, 5 How. 705.
[
Footnote 2]
4 Johnson's Chancery 609.
[
Footnote 3]
Hopkins 231;
see also Valentine v. Teller, id.
422.
