13 F. 97 | U.S. Circuit Court for the District of Kentucky | 1882
Lead Opinion
The complainant has an unsatisfied judgment rendered in the court against this defendant upon coupons representing interest upon bonds issued by the county in aid of a projected railroad. A special tax to pay this judgment has been levied in pursuance of a mandamus. The statute authorizing the tax provides that it shall be collected by a collector appointed for that purpose by the county court. In answer to a mandamus requiring the appointment of such a collector, it is returned that no suitable person can be found who is willing to accept the appointment, and it is admitted that the county court has in good faith diligently endeavored to find one, and that no one can be found who is willing to qualify as such collector. The present bill is filed to obtain relief by the collection of these taxes, and their application to the payment of the complainant’s judgment, through a receiver or other agency of the court.
The ground of this resort to equitable relief is that the remedy provided by law is inadequate and has failed, and that the levy and assessment of the taxes have created a fund which constitutes a trust to be administered by a court of equity.
The precise question thus presented was left undecided by the supreme court in the case of Meriwether v. Garrett, 102 U. S. 472. In the conclusions of the court, as announced by the chief justice, it is said:
“"Whetlier 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 toperform that duty, is not decided, as the case does not require it.”
It may, perhaps, bo equally true that the case has not, in fact, arisen here, for although it is to be assumed that no collector has been or can be appointed, yet the reason is not that there is no such officer provided by law, but because no person is willing to accept an appointment and perform its duties. The failure of the remedy is therefore merely casual, and not necessary; and in contemplation of law there is an officer charged with the duty which a court of equity is asked to assume because there is no such officer.
But, if the question was left open by the decision referred to, Í am constrained to conclude that it is decided by the spirit and logic of that case. The collection of a public tax as much belongs to the authority of the state as its levy and assessment, and the reasons
The bill, consequently, must be dismissed.
Dissenting Opinion
dissents; and a division is certified to the supreme court of the United States.
Rote. For Judge Baxter’s views upon this question see Garrett v. Memphis, 5 Fed. Rep. 860, delivered upon entering the mandate of the supreme court in the case of Meriwether v. Garrett, 102 U. S. 472.—[Rep.
