*1 Counsel for Parties. for this court to down rule possibl lay which will any general to cases in their facts from this case. apply differing The Circuit Court.is judgment affirmed, plaintiff in erren' each costs case to the clerk's taxed therein, <fe error No. 875 Another v. [Ferry to recover
Livingston] expense printing one-half record, it. paid by THOMPSON v. COUNTY & Others. ALLEN APPEAL FOR FROM OF THE UNITED STATES CIRCUIT THE COURT THE OF KENTUCKY. DISTRICT
Argued-November November 12, 13, 23, 1885. 1885. Decided taxes, they are to be proposition The though and -collection towns, is not raised for the counties judgments satisfaction of jurisdiction and re-affirmed. equity, within a court of reviewed collecting levying and remedy The fact at mandamus law ineffectual, be found proved perform taxes has and that no cari officers them, ground equity- .levying collecting no sufficient jurisdiction. county have of thé or town principle proper is the same where the officers accept levied the tax and one can be the officeof collector no found gives fill officeor to taxes. This a court ¡functions. appoint a receiver to justifies inadequacy remedy of the at which sometimes the interfer- merely failure, ence of a court of in its produce does consist remedies, money, upon a misfortune often attendant all but that in its adapted view,; for, or character it' is not fitted or to the end in nature sense, so, least, adequate, as much this at law rem- give. edy can which make the .are The facts stated opinion the court. W. O.
Mr. Charles Dodd was with him on the Eginton [Mr. for appellant. brief] Mason Brown Mr. John Alexander P. Humphrey [Mr.
. M. Davie him and Mr. were with on the George ap- brief] pellees.
THOMPSON ALLEN COUNTY.
Opinion of the Court.. delivered opinion .the court. Justice Miller Mr. was an This from a deeree of the Circuit Court appeal United States for the District of bill Kentucky, dismissing *2 of the who was appellant, court. plaintiff
The case tried was on bill, answer, answer, exceptions and a as to the facts. stipulation
The substance of the bill was, that had obtained Allen in that County, court, law, two at judgments to over on $27,000, on bonds amounting interest coupons ’ issued by county of the pay stuck subscription Cumberland and Ohio Railroad That, after execu- Company. tions on these had been returned no judgments duly property found,” the at the court, instance of the issued writs plaintiff, of mandamus of the under Allen justices County levied a tax of they $2.08 hundred dollars’ every worth of taxable said county pay judgments. That, at the same time, elected- one J. T. they .Stork collector of said tax and made an order that he bond with levy, give collector, as such and good proceed collect security and of the over satisfaction That Stork pay judgments. refused to bond as and refused to and give required, accept as such and collector; reason of the qualify hostility of the and citizens of Allen no one could tax-payers County, be found in the who would county col- lector.
The bill then the names of about gave thirty.of principal with the value assessed county, tax-payers prop- and the amount of tax due from him under each, said erty that the were too numerous to be .levy, tax-payers sued, alleging and be these sued as defendants praying might represent- all others in like and circumstances, with the ing required, to answer the bill. county,' of the bill for relief as was, that, inasmuch prayer without
complainant law, sitting receiver, should colleot these chancery'would appoint and that the therefrom be from-time to money arising taxes, time over in satisfaction of and paid plaintiff’sjudgments, the several of said be re- tax-payers made-defendants, county, 1885.. -of the
Opinion' Court. into with like the sums due them court, effect quired in the bill. as alleged Allen and de was filed the other
A answer joint admitted the re They who were served process. fendants “ nulla, return the executions judgments, covery mandamus, writs of the issue bona” also election of admitted Court. They the County denied serve, his they Stork as collector refusal were the bonds procured by said that else. They .everything built, never the road was consideration,- fraud without tax Was denied unjust, oppressive, taxes, these to collect a court sitting for said which could done collector Excep and not otherwise. county, appointed1according tions were filed to this which were answer, upon, passed fol but vthecase heard on bill, answer, exceptions, : stipulation lowing *3 “ in leave court the record now By parties stipulate this cause: “ 1. court of That the Allen -has in county good fit faith and endeavored find a diligently proper person in railroad taxes said to act as collector and of county, in -the of taxes the bilk of set forth. levies complaint “ be 2. no such can found who That fit proper person of such collec- will undertake office and tor. “ 3. for the collec That the is without complainant tion in debt1'herein, the aid this court except through in as receiver, bill, prayed other order of the court.” appropriate was had and the circuit before circuit hearing justice who certified that were judge, opinion opposed the case: follQwingquestions-occurring progress “1. be Whether taxes levied direction can under judicial a receiver collected through appointed chancery, officer with if there is public legislature the duty. to perform taxes levied officers under
“2. Whether State judicial v. ALLEN THOMPSON COUNTY. .. of the Court.
Opinion can direction be collected a receiver through appointed by States where United legislature provided there is officer but office and dbllect, no one vacancy can found office. willing accept court of 3. Whether a can relief to grant any the facts recited in the bill, complainant upon answer, record.” as this stipulation, presented A decree was rendered accordance with the view of Justice whose Matthews, found in the Presiding opinion record, which the bill was dismissed. 13 Fed. An Rep. this taken to court. appeal on which the questions Circuit judges
divided are new in this court, for, while the subject, form in the first and second presented precise questions, may not have been decided, whole has been often be- subject us, fore it have been principles govern well con- sidered.
The cases in which it has been held that a court of equity cannot enforce the and collection of levy debts corporations Walkley municipal began City of Muscatine, Wall. 481.
In that case, the had complainant Walkley procured judg- ments for interest on of. city Muscatine bonds executions had city, been returned “nulla bona” the and aldermen had refused to mayor a tax pay- ment of the used- and had tax annual for other judgments, purposes paid plaintiff. nothing them filed his bill in Walkley decree that equity praying and aldermen be mayor compelled appro- so much' of its priate proceeds might necessary pay his judgments. *4 court This’ Mr. said, Justice Nelson, that the remedy “
was mandamus at we by. and have been furnished with no for the of a bill substitution and equity injunc tion ; for the writ mandamus,” 483 and he that p. adds, is invoked as to a of law in-the court equity auxiliary court enforcement of its when the latter is inade judgments to afford the quate 483-4. proper- remedy,-” pp.
Opinion of the Court. ' is here meant, at law. remedy that By inadequacy usual result fails is in the very produce the'money —that that in its nature character it use of all remedies—but is not This is in view. fitted or end stated in clearly adapted next in this on the same Rees v. subject, namely, Watertown, Wall. 107.
In that execution on this, case, judgment against ‘‘no of Watertown had been returned found.” city been Writs mandamus had issued of a requiring had tax to These writs failed reason of judgment. of the officers of the to whom were resignations city and this had than. The directed, occurred more once. of mandamus doctrine the writ hav pressed a court of should some ing proved inadequate, provide other “We also To this it that remedy. apprehend replied: is in the some confusion upon plaintiff’sproposition, there is and the conceded, is claimed. It the present jurisdiction that abundant to there is too authorities are question, admit where there is remedy no chancery adequate is, doubt, of mandamus remedy law. The writ regular and it is and a case like the ordinarily adequate present, however, in the alleges, results are satisfactory. plaintiff wpt on three different issued such a he has that case, present aid afforded by legislature, means occasions; forth in bill, set and the devices contrivances afford him no in fact, they fruitless; writs have been and in in law adequate theory The remedy remedy. The want of a only. in its execution difficulty perfect. fruits remedy, to obtain the remedy, inability are confounded present pro distinct, yet they quite writ of illustrate: habere possessionem To ceeding. facias obtain the fruits of a judgment is the established full, It is a complete adequate, ejectment. in central since there existed New Not years many remedy. as Indians, of settlers disguised York combinations tenants of this execution such, resisted themselves and calling so effectually some-years in'théir cqlinties, process There of his land. nd landlord" could gain possession *5 THOMPSON v. ALLEN COUNTY. oí the
Opinion Court. but law, fraud, crime, violence its perfect remedy through, was It will execution this prevented. hardly argued state to invoke the aid authority things gave extraordinary . court of The enforcement remedies chancery legal violence, means of but temporarily suspended illegal the remedies remained before. It a miniature courts, revolution. lost no The of law court of power, none. The case stands the same chancery gained present upon The is and- principle. remedy complete, legal adequate time law must its execution,” 124-5. perfect pp. here used not to the case language only applicable under but in consideration, facts are the regard same.
In that case said: “The invokes the aid failed, all principle remedies legal having must him a there is a give remedy; wrong which cannot be elsewhere, and hence the must righted right sustained arises from too difficulty broad chancery.- ... application general principle. Generally is.as well defined and limited as [chancery] is that £ of a court of law. Lord Talbot There are says, cases, .... indeed, which a court of where the law equity,gives remedy none; but where a gives particular law, and remedy given by bounded and remedy circumscribed rules, by particular it would be for this court very to take improper [chancery] law wh re the leaves and extend it it, up further than' the law allows. its jurisdiction Generally depends upon legal obliga and its. decrees can tions, enforce remedies to the extent in the mode law established. ... A court of cannot, there is a but by' avowing right remedy known to the create a violation law, or even without of law. It acts authority established upon but established ‘only, principles through channels.” pp. -121-122. The court also said to direct power be levied is attribute of highest is exercised sovereignity, by legis- lative It is a that has not been extended authority only. power . is it judiciary says Especially,” opinion, beyond
Opinion of'the Court. - of the Federal to. assume the judiciary place exercise this at once delicate and State so 116-117. so important.” pp.
These reasserted in later case of the same propositions term Heine v. The Levee 19 Commissioners, of the court. 655. Wall. like bill in to enforce collec- was,
It present, of taxes where no officers could be found tion whose duty “ be enforced mandamus. There does not,” could said the by “ founded to be on the authority, appear any recognized of a of on which this bill can sus-' principles all, at it must be on the tained. If sustained broad very himself that, because the finds unable to collect ground of his debt it is the a court of by proceedings it devise some mode can be done. It is, .the of all however, men, every day experience are created which the creditor debts are never though paid, misfortune exhausted all the It is a has resources the' law. often which, nature, in- the of human admits imperfection in common must, bond redress. The holder corporation affords the law when men, to this with other submit calamity no relief.”' 660. p. of taxation of the the exercise
The court added that power and, in not to the judiciary, belonged legislature to the Levee Com it had case, power delegated “ exist, is ceased If missioners. that body statute, the tax to assess either legislature, It is not tribunal. certainly in some other vest the power an invested the exercise original as. “ of the in not one is not It Federal court.” p. it taxes, but is and collect herent of the powers of the Federal invasiop government judiciary And it Ib:. of the State functions government.” legislative Watertown, v. and Rees Muscatine, cites Walkley pqnt. circuit, on the decided this case
Mr. Justice Bradley, See Heine the whole had discussed subject. there elaborately re- 216. This Woods, Commissioners, language 1 t..Levee THOMPSON v. ALLEN COUNTY. 557
Opinion of the Court. in State Railroad approved peated Tax Case, U. S. 575, 615.
The same are laid down v. Levee Barkley Com principles missioners, 93 U. 258, S. which the whole is re subject viewed. It is-said there that power compel, by mahdamus, officers to municipal ministerial duty is^a distinct taxes levying proper a court collection the truth chancery, is, ” that a situated like (where there party petitioner were-no such “ is forced to faith officers) rely public legislature him a supply remedy. proper ordinary remedy having failed time and the lapse operation unavoidable tois contingencies, presumed will do legislature what in this and, case, equitable just, action legislative seems be absolutely 265-6. requisite.” pp.
In the case Meriwether v. Garrett, U. S. 472, the *7 of Tennessee had the charter of the legislature repealed city and abolished the at a time city when Memphis organization, there and uncollected were taxes assessed to .several amounting millions of and debts of the to a much dollars, city larger f amount. taxes had under Some o these been levied com the writs of mandamus from Circuit Court of pulsion the United States. A filed in bill in was that chancery court of these creditors sojpe praying receiver who should take the assets of the of all charge city Memphis, collect these them taxes, creditors, and over administer the finances extinct as a generally city administer the insolvent estate of a dea equity might man. d decree, relief, of the Circuit granting according bill, of the was reversed in this and .the prayer bill dismissed. to a division the court no elaborate Owing opinion repre- (cid:127) an- whole court but the chief
senting given, justice nounced on which the were eight propositions, majority agreed. Of these aré here: propositions following pertinent “ 3. ex- of taxation is and cannot be power legislative ercised under otherwise than of the authority legislature. TERM, 1885.
Opinion of the Court. “(cid:127) law before 4. Taxes levied according'to repeal levied obedience to the. than as were charter, other such n special requirement into entered under au- of contracts under direction as were levied and such judicial thority recovered can- the city, for the judgments payment of a court of be instrumentality not collected through of the creditors Such the instance city. chancery from the can be under taxes collected authority legislature. is exists, the If no such remedy appeal authority Whether which can relief. taxes alone legislature, grant or under in obedience to contract obligations, judicial levied a receiver a direction, can collected through appointed there officer court of if chancery, public charged is not de- perform duty, legislature not it.’’ cided, as the case does p. require then is decided, But though question see no more now, us we reason hold that urged upon is function assessed of a court of collection of already or assessment such taxes. than A court of taxes. nó Its law power possesses compel for that in .'a case lawfully appointed, purpose, officer!!who. is clear, the- do ‘and ministerial, where duty strictly '.so different from' much rests narrower very upon ground act would than' .under or collect such a its own officer either assess appointing tax. exist,
In the officers one plain, plain- dffiy has a to have tiff these officers right legal this, benefit, for his compel performance, has been well mandamus, known the writ process namely, *8 common law for In courts of hands ages. there, to tax or other officer authorized to existe nó levy it to when collect when The enforce collection levied. power officers, the tax is or cause it to levied levied, to by existing to cases is a limited guarded power, strictly commomlaw is not of mefe and' ministerial one duty, powers not the court of Tt this court, would chancery. require some, him officer make existing compulsory process against, ALLEN v. COUNTY. THOMPSON Opinion of the Court. but the the court duty, appointment by
perform recognized him to do. of such an and a decree what officer directing from the law, In the one his and he is case, power proceeds it it; other, from the exercise compelled- proceeds own decree, court which first makes its makes officer (cid:127) n toenforce has been it. No such ever exercised power yet a court of of its own officer chancery. collect taxes levied order a common-law court is as much without as to the same officer to authority, appoint levy collect the tax. same They parts proceeding, relate to the same matter. If the common law court can the assessment it is tax, as en- compel .of quite competent force its collection as a court of chancery. Having jurisdiction there assessment, reason it should compel why stop short, if further exists under the judicial power turn the case over to a court ~f Its sheriff or marshal equity. is well as to collect the tax a receiver qualified appointed by the court of chancery. is that no exists either court to fill difficulty in the office of tax collector; and vacancy the case of Lea
County Supervisors 175, 7 Wall. Rogers, where the laws State of Iowa authorized the court to expressly enforce its writ of mandamus such making appointment, it been done, has ever shows that without such legis- lative cannot be done'.
It is marshals of the Federal courts and the courts 'sheriffs of State executions from these issuing courts defendants, and it, sell to raise money their Let us pay judgments. some reason suppose the office other, of marshal or sheriff became vacant for a Would that authorize of the Fed- while.. government n appoint or State eral a sheriff or marshal? or a receiver to if or, ? it had appoint execution been levied, to sell the' collect the property, purchase-money, it to ? done, cannot be if it never been If this done, act, can it do much inore why unjudicial appointing taxes, a collector to collect is still less what appropriate, or* and endow him-with that receiver, appointing power? *9 1885.' of
Opinion the Court. To or appoint marshal a sheriff to execute the process court to enforce of is -that judgment such wide from the departure function as judicial a receiver appoint to collect but no taxes; case has been cited of the exercise of even the former the court, much less the appoint- ment, a court of of. officer to chancery, execute the pro- cesses of a court law. The of masters special of or commissioners to make sales' under decrees in chancery, mode of that court to its ordinary enforce decrees cases wherei the court has matter of the subject suit. n Not are decisions-here reviewed our court own clearly exercise this opposed power by but the decisions of the of the State highest Kentucky It is the derived equally emphatic. powers the statute law that under which alone this can State be collected. The of the bonds on which the judgment issue stat- obtained and that virtue statute, special this ute tax. the mode collecting prescribed levying .It enacted should not be sheriff who collection by tbq the State and collected the taxes for but county, ordinary tax collector should appointed purpose who levied the tax. The Court justices County which Court this was in exist statute, Appeals, construing ence when the bonds were holds other officers issued, taxes, but these can decided, collect the both in refer to this State, ence law the Constitution of the that a court such an cannot officer this exercise appoint of tax function collector. McLean Precinct v. Deposit 254. Bank, Ky. conclusive, if not decision,
This entitled great weight the statute under alone this tax can be levied construing and collected. These that the answers to each of the require considerations certified
three to us Circuit questions judges be in the and that dis- the decree of that negative, the bill be missing ALLEN COUNTY.
THOMPSON Harlan, Dissenting Opinion J. : Hablan dissenting. Justice Mr. *10 a not heretofore The decided question presents present this court. the of Allen, county The against judgments appellant in rendered in the were Kentucky, Commonwealth Dis- for the Kentucky the the United States Circuit Court of on bonds issued by interest trict, for the amount unpaid stock of a in of its subscription capital county payment made and the been railroad the subscription having company, bonds under County issued legislative authority. express to a tax to such Court refused levy satisfy judgments, although of which it was virtue the act, authorized and the required “ under the issued, as taxed rev- bonds listed and were levy the interest on the a sum sufficient to State, enue laws of pay the costs of bonds as it with accrues, such collecting together act, It further the same same.” provided, “ for tax,” collectors said or Court County may appoint the tax. the sheriff collect may require In a the General of Kentucky Assembly passed Allen act the sheriff of County releasing giv- bond railroad and collection tax, any ing providing “ at the instance shall, that the Court or County motion any collect all or by request, appoint person, special collector^ on for railroad and shall or levies said county purposes; bonds, with approved by security, require him.” of all duties incumbent on faithful discharge been returned Execution Thompson’sjudgments having upon “ refused to Court County having property,” them, Court, the Circuit Thompson’s applica- upon pay and consti- issued mandamus tion, justices against judge them to Court, tuting County commanding to be collected, statute, levying causing duty, enjoined of the sum sufficient to from the taxable county, property and the costs col- the before-mentioned satisfy judgments, 28, 1881, the same. May lecting County Subsequently, made a order, with Court, in foregoing conformity “ of the county the taxable tax-payers upon T. W. said favor pay Thompson judgments vol. cxv —36 n OCTOBER TERM, 1885.
Dissenting Harlan, Opinion : J. It was further ordered Court county.” 'by County be, T. and is J. Stark collector said hereby, appointed levy, his bond, before the upon executing security, approved he will at once to County collect said proceed levy, the same over in.satisfaction of the hereto- judgments T. fore named favor -of W. his or Thompson attorney.” Stark declined the office of collector. It is accept alleged bill, and admitted “that answer, sentiments aof of the citizens and majority feelings, large tax-payers of the said Allen .are hostile and very County outspoken against tax:” the.said the collection payment it was unable ..tofind announced that who having person of collector under- was willing accept unable, collection as levy, being Thompson take within -the to find he any person county alleges, willing suit colléctor, .present was com- qualify *11 the number of its menced county, alarge against tax-payers, in the bill, names are with the whose amount together given taxable as assessed of their property, by proper county due with the taxes from authorities, each, as shown records of the bill county. sets out the public foregoing made, .that the several facts, asks who are de- tax-payers, to into fendants, be court the several sums due required pay them, from as shown made levy Court, County that other named as tax-payers, defendants, specifically court, into or to some be required person appointed by it the amount due as from them receiver, respectively —such in sums to be satisfaction of applied Thompson’s judgments. a for There relief. is, also, prayer general counsel, their at the parties, stipulated hearing cause, and is to- as true, it be taken that “ faith and endeavored to find a fit and good diligently to act as collector railroad taxes person in said proper levies of taxes in county, the bill of complaint ” “ ; that no such fit set forth can be found proper person will undertake and the office and such ” “ and that collector; is without complainant remedy debt collection herein, this aid of except through ALLEN COUNTY.
THOMPSON v. Harlan,
Dissenting Opinion : J. as receiver, the- prayed of the court.” orders or other bill, appropriate the decree brethren, facts this state of my affirming Under was en- that the Circuit equity, hold below, sitting cause way, tax-payers without authority, tirely into court the due from them, sums of Allen County bring be in satisfaction of the same may applied respectively, Thompson’s judgments. in our former decisions there
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Dissenting Harlan, Opinion : J. from the be derived must of legislature the State; if power the known Levee Commissioners had, by of body resignation members, their ceased to the the exist, remedy.was legisla ture either to"assess the. or to vest by statute, other tribunal; in. some Federal event, a power court was without and collect tax authorised power levy a State law. That such extent of the decision in Cases, that case is State Tax shown Railroad U. S. 575, Levee to Heine v. The where, Commissioners, was referring said: Its is not function. exer judicial taxes cise, the Constitutions all States theory our English origin, exclusively'legislative.” p.
In Commissioners, Levee S. Barkley 258, U. mandamus, was asked to board of compel, process leyee commissioners, members resigned, which.had and- for assess collect a tax payment certain judgment could or, done, if that not be parish; to make such police required assessment jury parish if that could not be collection; or, that the done, United States marshal should be to assess at once or in required stalments, and collect taxes sufficient year year, upon to taxation levee subject purposes was held It that a mandamus could issue, be-' judgment. cause the Board Levee had become Commissioners extinct as a and that had body, com general marshal to mission the purpose satisfying a judgment.
These cases establish the doctrine only levying taxes is not a function. judicial
It seems me that the relief to will granting Thompson disturb the not, announced in any degree, principles cases. The bill not ask does the court to foregoing usurp function of taxes. That has been levying performed tribunal authorized to do it, viz., by the. (cid:127) Allen done, remains to be County. Nothing except' to collect from individuals sums of which specific money are under legal collections of these obligation pay. sums will not interfere any discretion with *13 v. ALLEN
THOMPSON COUNTY. Harlan,
Dissenting Opinion : J. is invested law; for, the Allen its own by County in law made order, conformity State, in 'the mandamus the sums due. judgment proceedings, other individual.defendants, from the tax-payers, been set payment apart Thompson’s judgments. collected, Those cannot be sums, otherwise used. As when find one who Court cannot will County accept and as the collector, office of that' there is parties agree special the sums set in no mode of the hands of the apart collecting and other individual defendants for the tax-payers, payment I am unable- to the’ Circuit Thompson; perceive why not in these sums to be cause in sitting applied may satisfaction its law. The has.no judgments at of. for, the common-law court in at.law; rendering judg- ment has doné all can do, local tribunal, that it .tax the aid col- seeking levying required it lector to collect ali that can do. it, has done There is no that the who even sued pretence, tax-payers suggestion, assessment made them dispute regularity against Of Court., their for the Admitting legal liability spe- cific amounts them, assessed what conceding against that owe satisfaction of must, when' they go Thompson’s paid, "the tribunal any judicial judgments, they disputé it Over. "With them to their hands, money compel creditor, walk out judgment they equitably belonging rémain unsatisfied, of the court whose judgments announcing, effect, hold negotiations “special will with.a has no existence. collector,” hp,s below, That sitting given —after at law for and after a return of nulla bona money,
judgment hold of set may lay moneys, apart, debtor— debtor, act the hands of individuals exclusivelyfor and which payment judgment, money, parties cannot into be otherwise reached than'by being brought agree, orders, under is confession of helplessness that I am the courts of the United States unwilling part from the to make. dissent I, therefore, judgment opinion in this case.