Although a
mandamus, and
alias mandamus, and
pluries mandamus, commanding a city to levy and collect a
tax upon the taxable property of its citizens in it, to pay
judgments which the relator in the mandamus has obtained against
it, have all, in consequence of the devices of the city
authorities, such as resignation of their offices &c., proved
unavailing to compel the levy and collection of the tax, and though
"the prospect of future success" by the same writ "is perhaps not
flattering," the federal courts sitting in equity do not possess
power to appoint the marshal to levy and collect the tax, nor to
subject the taxable property situate within the corporate limits of
the city in any way to an assessment in order to pay the
judgment.
Rees, a citizen of Illinois, being owner of certain bonds issued
under authority of an act of the Legislature of the State
Page 86 U. S. 108
of Wisconsin, by the City of Watertown, in that state, to the
Watertown & Madison Railroad Company, and by the company sold
for its benefit, brought suit in the Circuit Court of the United
States for the District of Wisconsin, against the city, and, in
1867, recovered two judgments for about $10,000.
In the summer of 1868, he issued executions upon the two
judgments thus obtained, which were returned wholly
unsatisfied.
In November of the same year, he procured from the United States
circuit court a peremptory writ of mandamus directing the City of
Watertown to levy and collect a tax upon the taxable property of
the city, to pay the said judgments, but before the writ could be
served, a majority of the members of the city council resigned
their offices. This fact was returned by the marshal, and
proceedings upon the mandamus thereupon ceased.
In May, 1869, another board of aldermen having been elected,
Rees procured another writ of mandamus to be issued, which writ was
served on all of the aldermen except one Holger, who was sick at
the time of the service upon the others. No steps were taken to
comply with the requisition of the writ. An order to show cause why
the aldermen should not be punished for contempt in not complying
with its requirements was obtained, and before its return day, six
of the aldermen resigned their offices, leaving in office but one
more than a quorum, of whom the said Holger, upon whom the writ had
not been served, was one. Various proceedings were had and various
excuses made, the whole resulting in an order that the aldermen
should at once levy and collect the tax; but before the order could
be served on Holger, he resigned his office, and again the board
was left without a quorum. Nothing was accomplished by their effort
in aid of the plaintiff, but fines were imposed upon the recusant
aldermen, which were ordered to be applied in discharge of the
costs of the proceedings.
In October, 1870, the plaintiff obtained a third writ of
mandamus, which resulted as the former ones had done, and
Page 86 U. S. 109
by the same means, on the part of the officers of the city. A
special election was ordered to be held to fill the vacancies of
the aldermen so resigning, but no votes were cast, except three in
one ward, and the person for whom they were cast refused to
qualify. The general truth of these facts was not denied. No part
of the debt was ever paid.
In this state of things, the District of Wisconsin having been
divided into an eastern and a western district, and the City of
Watertown being in the latter, Rees brought suit in the latter
district on his judgments obtained in the general district before
the division, and got a new judgment upon them for $11,066.
He now filed a bill in the said western district, setting forth
the above facts, the general truth of which was not denied; that
the debt due to him had never been paid, and that, with an
accumulation of fourteen years' interest, the same remained unpaid,
and that all his efforts to obtain satisfaction of his judgments
had failed. All this was equally undenied.
The bill set forth also certain acts of the legislature of
Wisconsin, which, it was alleged, were intended to aid the
defendant in evading the payment of its debts, and which, it seemed
sufficiently plain, had had that effect, whatever might have been
the intent of the legislature passing them.
The bill alleging that the corporate authorities were trustees
for the benefit of the creditors of the city, and that the property
of the citizens was a trust fund for the payment of its debts, and
that it was the duty of the court to lay hold of such property and
cause it to be justly applied, now prayed that the court would
subject the taxable property of the city to the payment of the
judgments. It asked specifically that a decree might be made,
subjecting the taxable property of the citizens to the payment of
the complainant's judgments, and that the marshal of the district
might be empowered to seize and sell so much of it as might be
necessary, and to pay over to him the proceeds of such sale.
The answer (or the argument made in the brief upon it) set up,
among other things,
"that the City of Watertown
Page 86 U. S. 110
contained a population of but 7553 inhabitants; that the value
of its property was assessed at but little over a million of
dollars; that the debt of the city is $750,000; that it was
impossible for the city to pay this debt; that it was expected and
provided that the railroad company would pay the bonds in question;
that the city had compromised and settled a portion of its debt;
that it had levied the taxes necessary to effect such compromise;
and that it was ready to compromise all outstanding bonds and
judgments at as high a rate as can be collected of the people of
Watertown; that there was no law to compel the retention of the
office by aldermen to levy taxes; that the plaintiff took his
chance of its being voluntarily done, and that not being
voluntarily done there was no violation of law."
By the charter of the City of Watertown [
Footnote 1] it was thus enacted:
"Nor shall any real or personal property of any inhabitant of
said city, or any individual or corporation, be levied upon or sold
by virtue of any execution issued to satisfy or collect any debt,
obligation, or contract of said city."
The case was tried in June, 1872, before two judges, holding the
circuit court, upon these questions:
"1. Whether, when the principal and interest on the bonds were
unpaid, as well as the judgment, and there being no property on
which to levy an execution, the plaintiff was confined to a remedy
at law by mandamus or otherwise, to enforce the payment of his
judgment recovered in this Court."
"2. Whether it was competent for the court, as a court of
equity, on the failure of the officers of the City of Watertown to
levy the tax as required by law, referred to in the bill, through
their neglect, refusal, absence, or resignation, to appoint the
marshal of the court to levy and collect the tax to pay the
judgment."
"3. Whether it was competent for the court, as a court of
equity, to subject the taxable property situate within the
corporate limits of the City of Watertown, in any way, to an
assessment,
Page 86 U. S. 111
in order to pay the judgment of this Court referred to in the
bill of complaint."
The judges were divided in opinion upon them and the bill was
dismissed.
The case was now here on certificate of division and appeal, the
error assigned being that the court dismissed the bill, when it
ought to have given the relief prayed for.
Page 86 U. S. 116
MR. JUSTICE HUNT delivered the opinion of the Court.
This case is free from the objections usually made to a recovery
upon municipal bonds. It is beyond doubt that the bonds were issued
by the authority of an act of the Legislature of the State of
Wisconsin, and in the manner prescribed by the statute. It is not
denied that the railroad, in aid of the construction of which they
were issued, has been built, and was put in operation.
Upon a class of the defenses interposed in the answer and in the
argument [
Footnote 2] it is not
necessary to spend much time. The theories upon which they proceed
are vicious. They are based upon the idea that a refusal to pay an
honest debt is justifiable because it would distress the debtor to
pay it. A voluntary refusal to pay an honest debt is a high offense
in a commercial community and is just cause of war between nations.
So far as the defense rests upon these principles we find no
difficulty in overruling it.
There is, however, a grave question of the power of the court to
grant the relief asked for.
We are of the opinion that this Court has not the power to
direct a tax to be levied for the payment of these judgments. This
power to impose burdens and raise money is the highest attribute of
sovereignty, and is exercised, first, to raise money for public
purposes only, and second by the power of legislative authority
only. It is a power that has not been extended to the judiciary.
Especially is it beyond
Page 86 U. S. 117
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. The question is not entirely new in this Court.
In the case of
Supervisors v. Rogers, [
Footnote 3] an order was made by this Court
appointing the marshal a commissioner, with power to levy a tax
upon the taxable property of the county, to pay the principal and
interest of certain bonds issued by the county, the payment of
which had been refused. That case was like the present, except that
it occurred in the State of Iowa, and the proceeding was taken by
the express authority of a statute of that state. The Court
said:
"The next question is as to the appointment of the marshal as a
commissioner to levy the tax in satisfaction of the judgment. This
depends upon a provision of the code of the State of Iowa. This
proceeding is found in a chapter regulating proceedings in the writ
of mandamus, and the power is given to the court to appoint a
person to discharge the duty enjoined by the peremptory writ which
the defendant had refused to perform, and for which refusal he was
liable to an attachment, and is express and unqualified. The duty
of levying the tax upon the taxable property of the county to pay
the principal and interest of these bonds was specially enjoined
upon the board of supervisors by the act of the legislature that
authorized their issue, and the appointment of the marshal as a
commissioner in pursuance of the above section is to provide for
the performance of this duty where the board has disobeyed or
evaded the law of the state and the peremptory mandate of the
court."
The State of Wisconsin, of which the City of Watertown is a
municipal corporation, has passed no such act. The case of
Supervisors v. Rogers is, therefore, of no authority in
the case before us. The appropriate remedy of the plaintiff was and
is a writ of mandamus. [
Footnote
4] This may be repeated as often as the occasion requires. It
is a judicial writ, a part of a recognized course of legal
proceedings. In the present
Page 86 U. S. 118
case, it has been thus far unavailing, and the prospect of its
future success is perhaps not flattering. However this may be, we
are aware of no authority in this Court to appoint its own officer
to execute the duty thus neglected by the city in a case like the
present.
In
Welch v. St. Genevieve, [
Footnote 5] at a circuit court for the district of
Missouri, a tax was ordered to be levied by the marshal under
similar circumstances. We are not able to recognize the authority
of the case. No counsel appeared for the city (Mr. Reynolds as
amicus curiae only); no authorities are cited which
sustain the position taken by the court; the power of the court to
make the order is disposed of in a single paragraph, and the
execution of the order suspended for three months to give the
corporation an opportunity to select officers and itself to levy
and collect the tax, with the reservation of a longer suspension if
it should appear advisable. The judge, in delivering the opinion of
the court, states that the case is without precedent, and cites in
support of its decision no other cases than that of
Riggs v.
Johnson County, [
Footnote
6] and
Lansing v. Treasurer. [
Footnote 7] The first case cited does not touch the
present point. The question in that case was whether a mandamus
having been issued by a United States court in the regular course
of proceedings, its operation could be stayed by an injunction from
the state court, and it was held that it could not be. It is
probable that the case of
Supervisors v. Rogers [
Footnote 8] was the one intended to be
cited. This case has already been considered.
The case of
Lansing v. Treasurer (also cited), arose
within the State of Iowa. It fell within the case of
Supervisors v. Rogers, and was rightly decided because
authorized by the express statute of the State of Iowa. It offered
no precedent for the decision of a case arising in a state where
such a statute does not exist.
These are the only authorities upon the power of this
Page 86 U. S. 119
court to direct the levy of a tax under the circumstances
existing in this case to which our attention has been called.
The plaintiff insists that the court may accomplish the same
result under a different name, that it has jurisdiction of the
persons and of the property, and may subject the property of the
citizens to the payment of the plaintiff's debt without the
intervention of state taxing officers, and without regard to tax
laws. His theory is that the court should make a decree subjecting
the individual property of the citizens of Watertown to the payment
of the plaintiff's judgment; direct the marshal to make a list
thereof from the assessment rolls or from such other sources of
information as he may obtain; report the same to the court, where
any objections should be heard; that the amount of the debt should
be apportioned upon the several pieces of property owned by
individual citizens; that the marshal should be directed to collect
such apportioned amount from such persons, or in default thereof to
sell the property.
As a part of this theory, the plaintiff argues that the court
has authority to direct the amount of the judgment to be wholly
made from the property belonging to any inhabitant of the city,
leaving the citizens to settle the equities between themselves.
This theory has many difficulties to encounter. In seeking to
obtain for the plaintiff his just rights we must be careful not to
invade the rights of others. If an inhabitant of the City of
Watertown should own a block of buildings of the value of $20,000,
upon no principle of law could the whole of the plaintiff's debt be
collected from that property. Upon the assumption that individual
property is liable for the payment of the corporate debts of the
municipality, it is only so liable for its proportionate amount.
The inhabitants are not joint and several debtors with the
corporation, nor does their property stand in that relation to the
corporation or to the creditor. This is not the theory of law, even
in regard to taxation. The block of buildings we have supposed is
liable to taxation only upon its value in proportion to the value
of the entire property, to be ascertained by
Page 86 U. S. 120
assessment, and when the proportion is ascertained and paid, it
is no longer or further liable. It is discharged. The residue of
the tax is to be obtained from other sources. There may be repeated
taxes and assessments to make up delinquencies, but the principle
and the general rule of law are as we have stated.
In relation to the corporation before us, this objection to the
liability of individual property for the payment of a corporate
debt is presented in a specific form. It is of a statutory
character.
The remedies for the collection of a debt are essential parts of
the contract of indebtedness, and those in existence at the time it
is incurred must be substantially preserved to the creditor. Thus a
statute prohibiting the exercise of its taxing power by the city to
raise money for the payment of these bonds would be void. [
Footnote 9] But it is otherwise of
statutes which are in existence at the time the debt is contracted.
Of these the creditor must take notice, and if all the remedies are
preserved to him which were in existence when his debt was
contracted he has no cause of complaint. [
Footnote 10]
By section nine of the defendant's charter, it is enacted as
follows:
"Nor shall any real or personal property of any inhabitant of
said city, or any individual or corporation, be levied upon or sold
by virtue of any execution issued to satisfy or collect any debt,
obligation, or contract of said city."
If the power of taxation is conceded not to be applicable, and
the power of the court is invoked to collect the money as upon an
execution to satisfy a contract or obligation of the city, this
section is directly applicable and forbids the proceeding. The
process or order asked for is in the nature of an execution; the
property proposed to be sold is that of an inhabitant of the city;
the purpose to which it is to be applied is the satisfaction of a
debt of the city. The proposed remedy is in direct violation of a
statute in existence
Page 86 U. S. 121
when the debt was incurred, and made known to the creditor with
the same solemnity as the statute which gave power to contract the
debt. All laws in existence when the contract is made are
necessarily referred to in it and form a part of the measure of the
obligation of the one party, and of the right acquired by the
other. [
Footnote 11]
But independently of this statute, upon the general principles
of law and of equity jurisprudence, we are of opinion that we
cannot grant the relief asked for. The plaintiff invokes the aid of
the principle that all legal remedies having failed, the court of
chancery must give him a remedy; 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. The great advantage possessed by the court of
chancery is not so much in its enlarged jurisdiction as in the
extent and adaptability of its remedial powers. Generally its
jurisdiction is as well defined and limited as is that of a court
of law. It cannot exercise jurisdiction when there is an adequate
and complete remedy at law. It cannot assume control over that
large class of obligations called imperfect obligations, resting
upon conscience and moral duty only, unconnected with legal
obligations. Judge Story says, [
Footnote 12] "There are cases of fraud, of accident, and
of trust which neither courts of law nor of equity presume to
relieve or to mitigate," of which he cites many instances. Lord
Talbot says, [
Footnote
13]
"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 to take
it up where the law leaves it, and extend it further than the law
allows."
Generally its jurisdiction depends upon legal obligations, and
its decrees can only enforce remedies to the extent and in the mode
by law established. With the subjects of
Page 86 U. S. 122
fraud, trust, or accident, when properly before it, it can deal
more completely than can a court of law. These subjects, however,
may arise in courts of law, and there be well disposed of.
[
Footnote 14]
A court of equity cannot, by avowing that 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. Thus, assume
that the plaintiff is entitled to the payment of his judgment, and
that the defendant neglects its duty in refusing to raise the
amount by taxation, it does not follow that this Court may order
the amount to be made from the private estate of one of its
citizens. This summary proceeding would involve a violation of the
rights of the latter. He has never been heard in court. He has had
no opportunity to establish a defense to the debt itself, or if the
judgment is valid, to show that his property is not liable to its
payment. It is well settled that legislative exemptions from
taxation are valid, that such exemptions may be perpetual in their
duration, and that they are in some cases beyond legislative
interference. The proceeding supposed would violate that
fundamental principle contained in chapter twenty-ninth of Magna
Charta, and embodied in the Constitution of the United States, that
no man shall be deprived of his property without due process of law
-- that is, he must be served with notice of the proceeding, and
have a day in court to make his defense. [
Footnote 15]
"Due process of law (it is said) undoubtedly means in the due
course of legal proceedings, according to those rules and forms
which have been established for the protection of private rights.
[
Footnote 16]"
In the New England states, it is held that a judgment obtained
against a town may be levied upon and made out of the property of
any inhabitant of the town. The suit in those states is brought in
form against the inhabitants of the town, naming it; the individual
inhabitants,
Page 86 U. S. 123
it is said, may and do appear and defend the suit, and hence it
is held that the individual inhabitants have their day in court,
are each bound by the judgment, and that it may be collected from
the property of anyone of them. [
Footnote 17] This is local law peculiar to New England.
It is not the law of this country generally, or of England.
[
Footnote 18] It has never
been held to be the law in New York, in New Jersey, in
Pennsylvania, nor, as stated by Mr. Cooley, in any of the Western
states. [
Footnote 19] So far
as it rests upon the rule that these municipalities have no common
fund, and that no other mode exists by which demands against them
can be enforced, he says that it cannot be considered as applicable
to those states where provision is made for compulsory taxation to
satisfy judgments against a town or city. [
Footnote 20]
The general principle of law to which we have adverted is not
disturbed by these references. It is applicable to the case before
us. Whether, in fact, the individual has a defense to the debt, or
by way of exemption, or is without defense, is not important. To
assume that he has none, and therefore that he is entitled to no
day in court, is to assume against him the very point he may wish
to contest.
Again, in the case of
Emeric v. Gilman, before cited,
it is said:
"The inhabitants of a county are constantly changing; those who
contributed to the debt may be nonresidents upon the recovery of
the judgment or the levy of the execution. Those who opposed the
creation of the liability may be subjected to its payment, while
those, by whose fault the burden has been imposed, may be entirely
relieved of responsibility. . . . To enforce this right against the
inhabitants of a county would lead to such a multiplicity of suits
as to render the right valueless."
We do not perceive, if the doctrine contended for is correct,
why the money might not be entirely made from property owned by the
creditor himself,
Page 86 U. S. 124
if he should happen to own property within the limits of the
corporation, of sufficient value for that purpose.
The difficulty and the embarrassment arising from an
apportionment or contribution among those bound to make the payment
we do not regard as a serious objection. Contribution and
apportionment are recognized heads of equity jurisdiction, and if
it be assumed that process could issue directly against the
citizens to collect the debt of the city, a court of equity could
make the apportionment more conveniently than could a court of law.
[
Footnote 21]
We apprehend also 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 are 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 and perfect. 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 combinations 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 his land. There was a perfect
remedy at law, but through fraud, violence, or crime its execution
was prevented.
Page 86 U. S. 125
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 remedies was temporarily suspended by
means of illegal violence, but the remedies 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.
Entertaining the opinion that the plaintiff has been
unreasonably obstructed in the pursuit of his legal remedies, we
should be quite willing to give him the aid requested if the law
permitted it. We cannot, however, find authority for so doing, and
we acquiesce in the conclusion of the court below that the bill
must be dismissed.
Judgment affirmed.
[
Footnote 1]
Private laws of Wisconsin, acts of 1856, chapter 237.
[
Footnote 2]
Stated
supra, pp.
86 U. S.
109-110.
[
Footnote 3]
74 U. S. 7 Wall.
175.
[
Footnote 4]
Riggs v. Johnson
County, 6 Wall. 193.
[
Footnote 5]
10 American Law Register, New Series, 512.
[
Footnote 6]
73 U. S. 6 Wall.
166.
[
Footnote 7]
9 American Law Register, N.S. 415.
[
Footnote 8]
74 U. S. 7 Wall.
175.
[
Footnote 9]
Van Hoffman v. City of
Quincy, 4 Wall. 535.
[
Footnote 10]
Cooley, Constitutional Limitations 285, 287.
[
Footnote 11]
Cooley, Constitutional Limitations 285.
[
Footnote 12]
1 Equity Jurisprudence § 61.
[
Footnote 13]
Heard v. Stanford, Cases Tempore Talbot, 174.
[
Footnote 14]
1 Story's Equity Jurisprudence § 60.
[
Footnote 15]
Westervelt v. Gregg, 12 N.Y. 209.
[
Footnote 16]
Ib.
[
Footnote 17]
See the cases collected in Cooley's Constitutional
Limitations, 240-245.
[
Footnote 18]
Russel v. Men of Devon, 2 Term 667.
[
Footnote 19]
See Emeric v. Gilman, 10 Cal. 408, where all the cases
are collected.
[
Footnote 20]
Cooley's Constitutional Limitations 246.
[
Footnote 21]
1 Story's Equity Jurisprudence, § 470 and onwards.
MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE SWAYNE,
dissenting:
I dissent from the opinion of the Court in this case upon the
ground that equity will never suffer a trust to be defeated by the
refusal of the trustee to administer the fund, or on account of the
misconduct of the trustee, and also because the effect of the
decree in the court below, if affirmed by this Court, will be to
give judicial sanction to a fraudulent repudiation of an honest
debt. For which reasons, as it seems to me, the decree of the
subordinate court should be reversed.
