1. There can be no jurisdiction in equity to enforce the payment
of corporation bonds until the remedy at law has been
2. Where the law has provided that a tax shall be levied to pay
such bonds, a mandamus after judgment to compel the levy of the
tax, in the nature of an execution or process to enforce the
judgment, is the only remedy.
3. The fact that this remedy has been shown to be unavailing
does not confer upon a court of equity the power to levy and
collect taxes to pay the debt.
4. The power to levy and collect taxes is a legislative function
in this country, and does not belong to a court of equity, and can
only be enforced by a court of law, through the officers authorized
by the legislature to levy the tax, if a writ of mandamus is
appropriate to that purpose.
5. Taxes are not liens unless declared so by the legislature
under whose authority they are assessed. Still less can a lien be
created by the mere duty to assess taxes which has not been
This was a suit in chancery brought by Heine and others, holders
of bonds issued by what is called the Board of Levee
Page 86 U. S. 656
Commissioners of the Levee District for the Parishes of Carroll
and Madison of the State of Louisiana. The board thus described was
made a quasi-
corporation by the legislature of Louisiana,
with authority to issue the bonds and provide for the payment of
interest and principal by taxes levied upon the real and personal
property within the district. The bill alleged a failure to levy
these taxes and to pay the interest on any part of said bonds, that
the persons duly appointed levee commissioners had pretended to
resign their office for the purpose of evading this duty, and that
the complainants had applied in vain to the judge of the district
court, who was by statute authorized to levy a tax on the alluvial
lands to pay the bonds if the levee commissioners failed to do so.
The prayer for relief was that the levee 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 be ordered to do the same, and for such other
and further relief as the nature of the case required.
No judgment at law had been recovered on the bonds or any of
them, nor any attempt to collect the money due by suit in the
common law court.
A demurrer to the bill was sustained in the circuit court, and
the plaintiffs appealed from the decree of dismissal rendered on
Page 86 U. S. 657
MR. JUSTICE MILLER delivered the opinion of the Court.
The question presented by the present case is not a new one in
this Court. It has been decided in numerous cases, founded on the
refusal to pay corporation bonds, that the appropriate proceeding
was to sue at law and by a judgment of the court establish the
validity of the claim and the amount due, and by the return of an
ordinary execution ascertain that no property of the corporation
could be found liable to such execution and sufficient to satisfy
the judgment. Then, if the corporation had authority to levy and
collect taxes for the payment of that debt, a mandamus would issue
to compel them to raise by taxation the amount necessary to satisfy
the debt. [Footnote 1
Unless, then, there is some difficulty or obstruction in the way
of this common law remedy, chancery can have no jurisdiction.
It is said that, by reason of the resignation of the levee
commissioners, no suit can be sustained against them so as to
procure a judgment on which the mandamus may ultimately issue.
But the present suit is brought against these very men in
Page 86 U. S. 658
their official character, and no difference can be seen in their
capacity to be sued in a court of law and a court of equity. The
same service of process is required in each. The same officers
serve the process, and the jurisdiction of the court over the
person is governed by precisely the same principles in each case.
The court of chancery possesses no extraordinary powers to compel
persons to submit to its jurisdiction and litigate before it not
possessed by a common law court when the latter is competent to
This proposition was directly in issue and distinctly settled in
the case of Rees v. City of Watertown,
at the present
term. [Footnote 2
] In that
case, the plaintiff had obtained judgment, issued execution, which
was returned nulla bona,
and had then procured a writ of
mandamus, ordering the aldermen of the city to levy the tax. The
aldermen resigned before the writ could be served, with intent to
evade its effect. After other aldermen were elected, a new writ was
served on them, and they in turn resigned after an order to show
cause why they should not be punished for a contempt in failing to
obey the writ of mandamus. Notwithstanding all this, we held that
chancery had no jurisdiction, by a direct proceeding, to levy the
tax or to seize the property of the citizens and sell it for the
satisfaction of the judgment.
That case was much stronger than the one before us, and is
unquestionably decisive of this. It is very clearly shown that the
total failure of ordinary remedies does not confer upon the court
of chancery an unlimited power to give relief. Such relief as is
consistent with the general law of the land, and authorized by the
principles and practices of the courts of equity, will, under such
circumstances, be administered. But the hardship of the case and
the failure of the mode of procedure established by law is not
sufficient to justify a court of equity to depart from all
precedent and assume an unregulated power of administering abstract
justice at the expense of well settled principles.
It is attempted in argument to support this exercise of
Page 86 U. S. 659
authority by reference to some of the acknowledged grounds of
equity jurisdiction. One of these is the doctrine of specific
performance of contracts. But while equity has in some cases
enforced in this manner a contract to deliver specific stocks,
there is no such case here. The plaintiffs have their bonds or
stocks. It is the money due on them which they want now. And in
this respect the case is one of compensation in damages for a
failure to pay the money due on the bond. All that plaintiffs can
get is this money and interest, and that is precisely what a court
of law would give them. The almost universal rule on the subject of
specific performance as regards contracts other than those for real
estate is that where adequate compensation can be made by the
damages recoverable at law, equity will not interfere.
It is said in argument that plaintiffs have a lien upon the
taxable property of the district for the payment of these bonds,
and that equity always enforces liens where no other mode of
enforcing them exists. Whether this be the true doctrine of a court
of equity to the full extent here claimed we need not decide. Nor
need we decide whether taxes once lawfully levied are, until paid,
a lien on the property against which they are assessed, though it
is laid down in the very careful work of Judge Dillon that taxes
are not liens upon the property against which they are assessed
unless made so by the charter or unless the corporation is
authorized by the legislature to declare them to be liens.
] But here, no taxes
have been assessed except those which have been released by the
bondholders accepting new bonds for the interest of the year so
assessed. And it is too clear for argument that taxes not assessed
are no liens, and that the obligation to assess taxes is not a lien
on the property on which they ought to be assessed. This was one of
the points urged and overruled in the case of Rees v.
The Court is asked, if it should fail to find any principle
peculiar to courts of equity on which the bill can be sustained, to
treat it as a petition for the writ of mandamus.
Page 86 U. S. 660
This would ignore the well established principle of the federal
courts that the line between the equitable and common law
jurisdiction must be maintained and that a suit must be of the one
character or the other, and be prosecuted by pleadings and
processes belonging to each class of jurisdiction.
Mandamus is essentially and exclusively a common law remedy, and
is unknown to the equity practice. But if this were otherwise, it
is the well settled doctrine of this Court that the circuit courts
cannot use the writ of mandamus as an original and independent
remedy, but are limited to its use as a process in the enforcement
of rights when jurisdiction has been already acquired for other
purposes. In fact, in the class of cases in which it is here
sought, it is a writ in execution of the judgment of the court
already rendered, and can only be used because it is an appropriate
process for that purpose. [Footnote
The circuit court cannot, therefore, issue the writ if the bill
could be treated merely as a petition on the common law side of the
court, praying for that remedy.
There does not appear to be any authority founded on the
recognized principles of a court of equity on which this bill can
be sustained. If sustained at all it must be on the very 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 often 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.
The power we are here asked to exercise is the very delicate
Page 86 U. S. 661
one of taxation. This power belongs in this country to the
legislative sovereignty, state or national. In the case before us,
the national sovereignty has nothing to do with it. The power must
be derived from the legislature of the state. So far as the present
case is concerned, the state has 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 vested,
as in the exercise of an original jurisdiction, in any federal
court. It is unreasonable to suppose that the legislature would
ever select a federal court for that purpose. 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. It is a most
extraordinary request, and a compliance with it would involve
consequences no less out of the way of judicial procedure, the end
of which no wisdom can foresee.
In the case of Walkley v. City of Muscatine
Rees v. City of Watertown,
already cited, we have
distinctly refused to enter upon this course, and we see no reason
in the present case to depart from the well considered judgment of
the court in those cases, especially the latter.
Dissenting, MR. JUSTICE CLIFFORD and MR. JUSTICE SWAYNE.
MR. JUSTICE BRADLEY did not sit.
Von Hoffman v. City of
4 Wall. 535; Supervisors v. United
4 Wall. 435; Riggs v.
6 Wall. 166; City of
Galena v. Amy,
5 Wall. 705, and many other cases in
this Court, and especially the case of Walkley v.
City of Muscatine,
6 Wall. 481.
p. 86 U. S. 107
2 Dillon on Corporations 659.
7 Cranch 504; McClung v.
6 Wheat. 601; Kendall v. United
12 Pet. 526; Riggs
v. Johnson County,
6 Wall. 197; Secretary v.
9 Wall. 311; Bath
County v. Amy,
13 Wall. 244.