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Riggs v. Johnson County/Opinion of the Court

ERROR to the Circuit Court for the District of Iowa.

That the county commissioners of any county may submit to the people of it at any election, the question whether the county will aid to construct any road which may call for extraordinary expenditure.

That when a question, so submitted, involves the borrowing of money, the proposition of the question must be accompanied by a provision to lay a tax for the payment thereof, in addition to the usual taxes, and no vote adopting the question proposed will be of effect unless it adopt the tax also.

That the county judge, on being satisfied that the above requirements have been substantially complied with, and that a majority of the vetes cast are in favor of the proposition submitted, shall cause certain records to be made; after which the vote and the entry thereof an the county records, shall have the orce and effect of an act of the General Assembly.

That neither contracts made under propositions thus adopted, nor the taxes appointed for carrying them out, can be rescinded.

That money raised for such purposes is specially appropriated, and constitutes a fund distinct from all others in the hands of the treasurer, until the obligation assumed is discharged.

The questions, whether the foregoing statutory provisions authorized a county to aid in the construction of a railroad, and whether, if so, the legislature could, under the State constitution, confer such power upon counties, was adjudged in several decisions by the Supreme Court of Iowa in the affirmative. After these decisions, bonds were issued by several counties in the State, in aid of the construction of railroads. Subsequently to the issuing and negotiation of them, the Supreme Court of Iowa, on a review of their former decisions, overruled these decisions, and held that the above statute did not confer the power in question upon counties, and that the legislature could not constitutionally confer the power; and that bonds issued by the counties and cities of the State, in aid of the construction of railroads, were void.

This court, however, in the case of Gelpcke v. The City of Dubuque, and in other cases afterwards, refused to follow these later decisions of the Iowa court, and established, for the Federal courts, that the earlier Iowa decisions, affirming the power to issue the bounds, should be regarded as decisive of the question, as to all bonds issued while those decisions remained unreversed. Notwithstanding which, however, the State courts apparently considered bonds in like case still void.

While the State decisions, that the county could issue such bonds, were yet unreversed, the commissioners of Johnson County issued, in a negotiable form, a large number of coupon bonds, payable to bearer. The bonds recited on their face that they were issued under authority of the act of Assembly, and of the required vote, &c., and (as the fact was) that they had been issued by the county for stock in a railroad company specified.

Marcus Riggs having become the holder of several of them, brought suit and obtained judgment in the Circuit Court of the United States for Iowa; but execution being issued, it was returned nulla bona. There was nothing which by the laws of Iowa where statutes exempt public property of a county and the property of the private citizen from being levied on to pay debts of a civil corporation-could be found to satisfy the execution. After this, various tax-payers of the county filed a bill in chancery in one of the State courts against the county commissioners (none of the bond-holders, however, being made parties to the proceeding or having notice of it), alleging that the bonds and coupons were void from the beginning, and had been repeatedly held so by the Supreme Court of Iowa, and praying a perpetual injunction to the commissioners against levying any tax to pay them: which injunction the State court granted. After the injunction upon this proceeding instituted in the State court had been issued, Riggs-by petition reciting his judgment, unsatisfied after execution, and the fact that it was obtained on the bonds such as above described, reciting also the vote of the county to pay the tax, and that it had the effect of a law-applied to the Circuit Court of the United States for a mandamus to the commissioners to compel them to lay a tax, 'sufficient to pay the amount of the said judgment and cost and of the principal and interest falling due for each year on said bonds, and especially the interest warrants or coupons included in the aforesaid judgment, and to continue the same from year to year, until the said bonds and coupons or interest warrants are fully paid, in payment for the coupons or interest warrants annexed to said bonds, now due and unpaid, an not included in the aforesaid judgment, and of such coupons or interest warrants as they shall become due.' The commissioners answered, making as return the injunction previously laid on them by the State court. Riggs demurred to the answer, assigning four causes of demurrer, the substance of the one chiefly relied on, and considered here, being, that 'after the judgment was rendered' in the Circuit Court, the State court had 'no jurisdiction, power or authority' to prevent him 'from using the PROCESS of this court by writ of mandamus to collect his judgment.'

The Circuit Court overruled the demurrer, and judgment was given for the commissioners. The case was now here on error.

To better understand the argument it may be well to state—

1. That by an act of Congress (sometimes called the Process Act), passed, first in 1789, and improved and made permanent in 1792, it was provided:

'That the forms of writs and executions,. . . and the modes of process, in suits at common law,. . . shall be the same in each State respectively as now used or allowed in the Supreme Courts of the States.'

And by a later act (May, 1828)--

'That writs of execution, and other final process issued on judgments rendered in the Federal courts, and the proceedings thereupon, shall be the same in each State as are now used in the courts of such State.'

2. That in the Revised Statutes of Iowa (A. D. 1860), a mandamus is stated to be, and thus regulated under the head—

ACTION BY MANDAMUS.

'§ 3761. An order of a court of competent jurisdiction commanding an inferior tribunal, corporation, board, or person to do or not to do an act, the performance or omission of which the law specially enjoins as a duty.

'§ 3762. That the plaintiff shall state his claim and facts sufficient to constitute a cause for such claim.'

'§ 3766. That the pleadings and other proceedings in any action in which a mandamus is claimed shall be the same in all respects, as nearly as may be, as in an ordinary action for the recovery of damages.'

'§ 4181. That when the action of mandamus is by a private person there may be joined therewith the injunction of chapter 155,. . . and the action shall be by ordinary proceedings.'

3. That by the fourteenth section of the Judiciary Act, it is enacted that Circuit Courts among others named—

'Shall have power to issue writs of scire facias, habeas corpus, and other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'

4. That the same act, in the thirteenth section enacts that

'The Supreme Court shall. . . have power to issue. . . writs of mandamus,. . . to any courts appointed or persons holding office under the authority of the United States.'

At the same time with the present case was another, Thompson v. Henry County, exactly like it in principle; the two being argued consecutively.

Messrs. Fellows, Blair, Dick, Grant, Rogers, and Howell, for the relator, plaintiff in error, in the different cases:

Since the cases of Gelpcke v. The City of Dubuque, and other after it, the Circuit Court of the United States for Iowa has uniformly sustained the validity of these county bonds, and numerous judgments have been recovered in it by the bondholders against various counties and cities of the State. On one of these judgments the present proceeding is founded, and the decision in this case is to settle the question, whether or not all these judgments, and all the bonds and coupons not yet in judgment, are, for any practical purpose, so much waste paper; that is to say, whether it is in the power of the Iowa State courts, not only to close their own doors against any remedy in behalf of the bondholders, but also to effectually defeat the collection of any judgments which the bondholders may recover on their bonds in the Federal courts, by the simple and easy process of perpetually enjoining the officers of the several counties and cities throughout the State from levying any taxes to pay the bonds or judgments recovered or to be recovered thereon (a process which amounts to enjoining them from paying such bonds and judgments) in suits brought for that purpose by taxpayers against the county or city officers, without making a single bondholder a party, or giving them notice. We submit that such a defence is in the face of all precedents in this court.

1. The jurisdiction of the entire case, existed in the United States court, from service of the writ of summons to appear and answer to the action, down to the actual execution of all process which the court might consider necessary to enforce its judgment; and therefore such jurisdiction covered the time when the proceedings in the State court were begun.

In Wayman v. Southard, which involved the question, whether executions issued by the Federal courts could be controlled by State authority, the court, referring to § 14 of the Judiciary Act, say:

'The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act, to suppose an execution necessary for the exercise of jurisdiction. Were it even true that jurisdiction could technically be said to terminate with the judgment, an execution would be a writ necessary for the perfection of that which was previously done; and would, consequently, be necessary to the beneficial exercise of jurisdiction.'

The court next proceeded to show that in the Process Act, from the language used, it was the intention of Congress to provide for the entire proceedings in a case, down to the enforcement of the execution. They say:

'To the forms of writs and executions, the law adds the words, 'and modes of process.' These words must have been intended to comprehend something more than the forms of writs and executions. We have no right to consider them as mere tautology. They have a meaning, and ought to be allowed an operation more extensive than the preceding words. The term is applicable to writs and executions, but is also applicable to every step taken in a cause. It indicates the progressive course of the business from its commencement to its termination.'

In The Bank of the United States v. Halstead, land in Kentucky had been offered for sale under execution from the United States Circuit Court, and as the State law would not permit it to be sold unless it brought three-fourths its appraised value, the United States marshal followed the State law, and returned the land not sold, because it did not bring that much.

But this court, in speaking of the power of Federal courts over its process, say:

'The judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended, if after judgment it could be arrested in its progress, and denied the right of enforcing satisfaction in any manner which shall be prescribed by the law of the United States. . . . The general policy of all the laws on this subject is very apparent. It was intended to adopt and conform to the State process and proceedings as a general rule, but under such guards and checks as might be necessary to insure the due exercise of the powers of the courts of the United States. They have authority, therefore, from time to time, to alter the process in such manner as they shall deem expedient, and likewise to make additions thereto, which necessarily implies a power to enlarge the effect and operation of the process.'

Having thus shown the possession of this power in the courts, the next point settled was that it was beyond the interference of the State government. Thus:

'If the court then had the power so to frame and mould the execution in this case, as to extend to lands, the only remaining inquiry is, whether the proceedings on the execution could be arrested and controlled by the State law. And this question would seem to be put at rest by the decision in the case of Wayman v. Southard. . . .'

'It is a doctrine of law too long established to require a citation of authorities, that were a court has jurisdiction it has a right to decide every question which occurs in the cause;. . . and that where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have ever attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in amity, but in necessity; for if one may enjoin, another may retort by injunction, and thus the parties be without remedy, being liable to a process for contempt in one, if they dare to proceed in the other.'

2. When the Circuit Court rendered judgment on the coupons attached to the railroad bonds, all questions involved in that cause, as between the relator, plaintiff there, and all parties liable on account of said bonds, became res adjudicata. One of the questions and the main question involved in that judgment, was the validity of the bonds; and it being determined therein, not only put the question at rest, but such decision was necessarily accompanied by the order, that the appropriate process of execution should issue.

3. Here then was nothing left undecided between the relator and the corporation of Johnson County, as to not only whether it ought, but should pay said bonds. Nothing was left behind for the State court to act upon, which the parties began proceedings to stop the execution of the judgment of the United States court.

4. A writ of mandamus is simply a process of enforcing the execution of the judgment rendered in this cause. The Revised Statutes of Iowa show that mandamus is a remedy well known and much used in that State. If not a 'writ' or 'execution' within the old Process Act, it is yet a 'mode of process,' something regarded by that act as different from 'writ' or 'execution,' but which is to give the creditor the fruit of his judgment. Or, if it be not 'a mode of process,' it is assuredly a 'proceeding' upon a judgment, and within the act of May, 1828. If it be any one of these, we are entitled to use it through the Federal courts as it is used in the 'courts of such State.' It is moreover a 'mode of process' or a proceeding which falls within the original understanding of the contracting parties. There has been a return of nulla bona to the execution. Taxation is the only means which can be relied upon, to meet the public obligations. Therefore the award of execution in the judgment, to be effectual, carries the writ of mandamus to oblige the county officers to raise the appropriate tax.

The case of Knox County v. Aspinwall, as it came the second time before this court, is in point. There the plaintiff having, in accordance with a prior decision on his case in this court, recovered judgment on railroad bonds, and the court determining that under the law of Indiana it was defendant's duty to levy a tax to pay the judgment, granted the mandamus, to enforce the execution of this judgment: and they decide, that this writ of execution is issued under the fourteenth section of the Judiciary Act of 1789, referring to the powers of the court under that act, as declared by the above-cited case of Wayman v. Southard.

The power of the United States court to issue a mandamus as a writ of execution was also and more lately decided in Von Hoffman v. City of Quincy. There this court denied the power of the State legislature to withdraw the authority which had been given to lay a tax, at the time the municipal bonds had been issued, on the ground, that the remedy being an essential part of the contract, could not be impaired in the slightest degree; and that it was the duty of the United States court to execute the process of mandamus, to enforce the remedy, notwithstanding the act of interference on the part of the State.

Messrs. Thomas Ewing, Senior, of Ohio; Browning, Rankin, and McCrary, Strong, Farrall, and Boal, contra:

1. The case of Knox County v. Aspinwall, which decided that circuit courts might grant a mandamus to enjoin State officers, is hardly, we submit, to be supported. This court is specially authorized, by the 13th section of the Judiciary Act, to issue 'writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States'-not to courts appointed or persons holding office under the authority of the several States. Thus the writ of mandamus is 'Specially provided for by statute;' and it is limited to issue only to courts of the United States and ''persons holding office under the authority of the United States. Expressio unius, exclusio est alterius''.

Then the 14th section gives the courts of the United States power to issue 'writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction.' The mandamus, however necessary it may be, having been specially provided for by statute, is limited by the terms of the statute providing for it, and does not come within the grant of power in the 14th section. Such are the provisions of the Constitution and the law, to guard against disastrous conflicts of jurisdiction in the case of this writ, which were likely, if not so limited, to arise.

In Knox County v. Aspinwall, singularly enough, the provision of the 13th section of the Act of 1789, specially providing 'by statute' for the writ of mandamus, and limiting its use, was wholly overlooked by the counsel, and consequently by the court.

2. However, conceding that Knox County v. Aspinwall was rightly decided, that is to say, that a mandamus may rightly issue from a circuit court to compel State officers to levy a tax where levy has not been previously enjoined by State courts-that case is not this. Here previously to the issue of the mandamus to levy, an injunction from the State court forbade a levy. That is the special feature of our case. It will be observed then, that in this case the mandamus cannot be granted and enforced, without compelling the respondents to do that which they are enjoined from doing by another court of competent jurisdiction. If the mandamus is allowed, they must of necessity disobey the one process or the other; and thus, by no possibility can they avoid liability to punishment for contempt, and that punishment is generally, if not always, imprisonment. If it be said that this result would not be the fault of the Federal courts, we reply that no more would it be the fault of the respondents. They stand before this court in no attitude of contumacy. There is no intimation in their answer of any wilful intent to disregard the orders of this court; but they do show us, we think, that their hands are completely tied, and that what the relator asks of them is a legal impossibility. They are within the jurisdiction of the State court. That court having clearly the power so to do, has adjudged the bonds in question void, and has enjoined the respondents from levying any tax to pay them. That injunction has been duly issued and duly served. The decisions of the State courts upon the question of the validity of the bonds, are not, except in special cases, subject to revisi n by this court. Within the scope of its jurisdiction, and as to all persons or property coming within that jurisdiction, the State judiciary is supreme, and its adjudications final. Whatever may be though of the propriety or impropriety of its decisions, they must be accepted as binding upon parties properly before it, and persons legally brought within its jurisdiction.

The certainty of an occasional difference of opinion between two courts having jurisdiction over the same questions, long ago suggested the establishment of a rule to prevent any serious conflicts-a rule which will in every case, when applied and enforced in its true spirit, promote perfect harmony. We refer of course to the well-known rule, thus stated by this court, and than which none can be more firmly settled, that 'in all cases of concurrent jurisdiction, the court which first has possession of the subject, must decide it.' It is that rule, we submit, which governs this case, and distinguishes it wholly from Knox County v. Aspinwall. There is no country in the world where so many distinct tribunals have a right to exercise complete jurisdiction over the same subject-matter. And, to enable the State and Federal courts, sitting in the same places, administering justice for the same people, and over the same subjects, to work smoothly, the rule is of inestimable value, and must be carefully acted upon.

Over this subject-matter we admit that the Circuit Court of the United States sitting in Iowa has, in a proper case, jurisdiction, and its having jurisdiction gives it power either to compel or prohibit the levy of such tax. But we assert, further, that the District and Supreme Courts of the State of Iowa have jurisdiction over precisely the same subject-matter. This will not be denied, and needs no proof. It follows, then, that neither the State nor Federal judiciary, have exclusive jurisdiction over the subject-matter of this proceeding. Either may compel the levy of the tax in question, and either may prohibit it. Nor can it be said that the Circuit Court sitting within the State of Iowa, in construing and enforcing the constitution and laws of Iowa, is in any sense superior to the State courts. The Federal courts are the final judges of all questions arising upon the construction of the Constitution of the United States and the acts of Congress, but in construing and enforcing the State constitution and laws they stand upon a perfect equality with the tribunals created by the constitution of the State for that purpose.

The State court having then got possession of the matter first, cannot be disturbed in its jurisdiction of it.

3. The whole argument of the other side rests and must rest upon an assumption that a mandamus is like a ''fi. fa., or habere facias possessionem, mere process'' issuing upon a judgment. But this is assumption of that which is false; a mistaken view of what a mandamus is. It is not a writ of final process at all.

In most of the States, as in England, the proceeding is not only begun by a petition or complaint and notice, but all of the proceedings and pleadings are the same, precisely the same, in every particular as in any other action at law. The defendant may plead or demur to the information upon which it is sought, or move to quash the alternative writ, or the plaintiff may reply or demur to or move to quash the answer or return of the respondent, and judgment is rendered as in any other cause. Such especially is the case in the State of Iowa, where the code calls it, over and over again, an 'action,' and where its 'form of pleading' is prescirbed; being made the same as in assumpsit.

As said by this court, in modern practice it is nothing more nor less than an ordinary suit at law.

This is peculiarly the case when the proceeding as here is against third persons who were not a party to any other action with the relator, and where the relief sought is not simply to compel a defendant in a judgment to do some act, which by the judgment he is legally required to do, but where the relief is beside the judgment, and in aid of the rights of the plaintiff against a defendant, who was no party to the mandamus. In no court, under no circumstances, can this writ be granted, except in term time, and upon due notice to the party, the very person against whom it is sought. In this important regard it differs from the ordinary writ of execution incident to a judgment, and to which the creditor is entitled as of course. It is a writ which the court may grant or refuse to grant, depending upon the case made.

The idea that a mandamus will in any case issue as 'process' in order to obtain the fruits of a judgment in the event of a failure to get the money on ordinary execution, is wholly new. As respects this special case we submit that it is absurd. The petition for the mandamus sets forth a contract and relies on it; and accordingly asks for a mandamus to compel the levy of a tax not only now to pay the judgment, but to pay also all coupons that have become due since the judgment, and all that shall become due until the maturity of the bond. Was ever 'process' like this heard of on an ordinary judgment upon an ordinary railroad bond? As respects the State of Iowa, with which we are here concerned, this position is in the very face of its code. The action cannot be got under the Process Act at all. When you call it a 'proceeding,' the matter is given up, unless you prove that it is a proceeding in the nature of final process, and not one in the nature of an action: the rule about comity prevails. There is but one writ in Iowa, or elsewhere, which issues to enforce a judgment at law and as a part of the suit, and that is the ordinary writ of execution. It often happens indeed that a plaintiff fails to get his money by an execution, and has therefore to resort to some other remedy, as ex. gr., to a bill in chancery. But is there, among the numerous cases of such bills, one in which it has been held that the court in which the creditor's bill is filed, gets a jurisdiction dating from the commencement of the original suit? Yet if the court which is applied to for a mandamus to aid in the collection of its judgment, may assume that its jurisdiction in the mandamus case reaches back to the commencement of the original suit, why not the same thing when a creditor's bill is filed for the same purpose? The most that can be said of this mandamus is that it is a proceeding-a suit-instituted in aid of the execution, or to create a fund on which the execution may be levied. But such is the fact in every case where a creditor's bill is filed. We call in short upon counsel to point out to this court how, in any single feature or particular, a suit by mandamus in modern practice, differs from any other suit so as to authorize them to assume or conclude, that it is not simply a suit at law, though a suit which the court will not entertain when the party seeking it has other adequate remedy. They have produced no such authority or anything analogous to it by this or any other court. Would it not be at variance with the history and spirit of this tribunal to court unnecessary conflict with the co-ordinate tribunals of the States, and in the face of all direct authority, and of controlling analogy, to seek such occasion by holding that these suits are not suits?

In this particular case the mandamus is not only a new suit, but is one separate and distinct from the former, in that the subject-matter of the two are not the same. The object of the suit on the bonds was to recover a judgment. The object of this proceeding is to compel the levy of a tax.

In addition to all this, the court will not grant the writ to compel a party to do an act which it is not in his power, legally, to do, or which will subject him to punishment by another court having jurisdiction of him, in obedience to whose writ he is acting. It will not, to use an expression of Brinkerhoff, J., 'place him between two fires;' and this is a universal rule of all courts, and has been as uniformly recognized in England as in this country. In The Queen v. Sir Gilbert Heathcote, so far back as the Modern Reports, Eyre, J., speaking for the court, says:

'No instance could be produced where the courts have granted the writ, where obedience shall expose a man to trouble or inconvenience. Whereas, in this case, if Sir Gilbert obeys the mandamus, he will be liable to an action for false return to the court of aldermen.'

Counsel replied that it was his own fault, and he might suffer the consequence. But Eyre, J., further says:

'I agree, that unless some mandamus will lie in this case there is no remedy. But it ought to be the concern of a court of justice to take care that while they are granting a remedy to one, they do not at the same time expose others to great inconveniences.'

In the same case Lord Chief Justice Parker, after saying that there was no doubt about the jurisdiction of the court, says:

'As to Sir Gilbert, if he obey the writ he is subject to an action for a false return to the court of aldermen, and no instance yet has been produced where obedience to a mandatory writ of this court exposes a man to an action.'

Far less will a court grant a mandamus to compel a man to do that which another court of co-ordinate power has enjoined him from doing. This follows necessarily and with greater reason from the authorities already referred to.

It is quite impertinent to say that in a suit in the State court for damages, he can plead the mandamus; and if the plea is not respected, he can, if the highest court of Iowa affirm the decision of the lower State court on that point, come here term after term to Washington, under the twenty-fifth section of the Judiciary Act, and at a thousand miles from Iowa, and at a cost which may ruin him, get the decision reversed. Or to say that if imprisoned he can get out on order of the Federal court through the Force Bill of 1833, or some other Federal statute. The doctrine declared in the case just cited is that a court will not subject an innocent man, discharging his duty under judicial order, to this sort of inconvenience and cost; an inconvenience which may involve him in suits for the residue of his life, and costs which it may be absolutely impossible for him to pay.

The case of Knox County v. Aspinwall, much relied on by the other side, is not, as is there supposed, in point. Certainly it decides that a mandamus may issue from this court after judgment to compel county commissioners to levy a tax. But no injunction had been previously laid on the commissioners there not to do it. There was no State court previously in possession of the matter on which the mandamus asked for was to act. That is the point of our present case. That decision does not hold, nor say, nor suggest, that a mandamus is 'process' like an execution, nor that it issues as a part of the original suit. The case needed no such decision. The decision is not only wholly consistent with the idea that it is an 'action,' a new suit, but is inconsistent with any other. The court, Grier, J., giving the opinion, speaks of it, not as an execution, nor as process; but as 'remedy,' and one to enforce the execution of the judgment. It does not hold that a mandamus is not a new suit. It has in short, then, no bearing at all upon the questions raised in this cause. The suit, moreover, in that case was brought for mandamus against the original defendants against whom the judgment had been rendered, so that the parties in the original and in the mandamus case were the same, while in this they are different.

The point decided in Wayman v. Southard, and relied on too, was that the Federal courts have power to issue executions for the enforcement of their judgments. Of course they have; executions such as belong to the judgment and grow out of it; the sort alone of which the court was speaking. So since Knox County v. Aspinwall, they may issue mandamus even to State officers, if mandamus be 'necessary for the exercise of their respective jurisdiction.' But of course they can issue it only in subordination to fixed principles of law; one of which is the rule of comity that allows a court already in possession of a case to keep it. But the right to issue a mandamus to a State officer does not go one step to prove that a mandamus is final process, and so outside the rule; and to make the mandamus a part of the former case. But to assume that it is a 'process,' or quasi process, is to assume the whole case: to assume that which is contrary to the settled definition of the word; contrary to what has been always adjudged; and to assume what is wholly denied.

So of the other cases cited contra to the same effect as Wayman v. Southard.

It is urged that without the allowance of a mandamus the relator's judgment cannot be collected. If this were true, the law would remain as we have stated it. There are many judgments which cannot be collected. The same result might have followed, if an execution issued upon the relator's judgment had been levied the day after a State court had through its process levied upon the property of the county subject to execution. But this court would, nevertheless, adhere to its well-settled and salutary rule, of yielding the property to the State court in such cases.

Reply: The doctrine of comity and prior possession is inequitably invoked in a case like this. The State court, not regarding the principles laid down by this court in Gelpcke v. The City of Dubuque, as binding on them, but treating the bonds still as void, will issue any number of injunctions. There is nothing to prevent counties getting them, and unless the decision below is reversed they will all get them, of course. The bondholders are powerless to prevent it.

It is true that the case of Wayman v. Southard, and cases to the same effect cited by us, were cases of writs of execution. But the principle which that case and the other cases establish is, that the jurisdiction continues till the judgment is satisfied; satisfied, whether by writs of execution or by other 'modes of process' or 'proceeding,' is unimportant. It is not necessary to regard the mandamus as 'process.' Many cases have been decided in this court that a suppletory proceeding, either at law or equity, to execute or perform the prior judgments of the Federal courts, is auxiliary to the original suit, and maintained without regard to the jurisdiction of the court as to the parties. Minnesota Company v. St. Paul Company, where there had been a former suit-an action of foreclosure against the La Crosse and Milwaukee Railroad Company-was such a case. The court there say: 'The present suit is really a continuation of that one.' The 'present suit' spoken of was by a different plaintiff against different defendants, for a different object; yet being connected with the same subject-matter, about the same railroad, and the mortgaged property of the same, the court overruled the plea to the jurisdiction, holding the 'present bill necessary in order to have a declaration of what was intended by the order and decree made in that (former) suit, and to enforce the rights which were established by it.'

So too, Pratt and White, who had bought the railroad at the marshal's sale, and held the title thereto, ere citizens of the same State with the plaintiff, and this matter was set up to devest the Federal court of its jurisdiction, as undoubtedly it would, had the last suit been considered a new suit; but the court refused to entertain the plea, saying:

'If the court has jurisdiction of the matters growing out of that sale, and order of possession, as we have already shown that it has, then it has jurisdiction to that extent of these parties without regard to their citizenship.'

The argument drawn from position 'between two fires,' is without weight. The mandamus if pleaded will be a bar to any suit for damages in the State court; and if not so regarded by it, a writ of error lies hence under the twenty-fifth section of the Judiciary Act. As to imprisonment, the Force Bill of 1833 gives a complete remedy. We need not enlarge on provisions so abundantly known.

Mr. Justice CLIFFORD delivered the opinion of the court.

Application of the relator to the Circuit Court was for a mandamus to compel the defendants, as the supervisors of the county, to assess a tax upon the taxable property of the county to satisfy the judgment described in the transcript. Pursuant to the usual practice the court granted the alternative writ, commanding the defendants to assess the taxes, or show cause to the contrary, on or before the second day of the next term of the court. Service of the writ was duly made, but they neglected to levy the tax, and elected to show cause against the application.

They appeared, and in their return to the writ, they deny that it is their duty to levy the tax to pay the judgment, or that the relator is entitled to a peremptory writ, and allege that they have been enjoined not to assess a tax for that purpose by the State court, and aver that they cannot do so without being guilty of contempt and becoming liable to punishment. Plaintiff demurred specially to the return, and assigned the following causes of demurrer: 1. That the relator was no party to the proceedings in the State court. 2. That the proceedings in the State court were subsequent to the judgment of the relator in the Circuit Court. 3. That the State court had no jurisdiction, power, or authority, to prevent the relator from using the process of the Circuit Court to collect his judgment. 4. That the decree for an injunction rendered in the State court was no bar to the application of the relator for relief. But the court overruled the demurrer and decided that the return was sufficient. Judgment was thereupon rendered for the defendants, and the plaintiff sued out this writ of error.

I. Power was vested by law in the county judge of a county in the State of Iowa, to submit the question of the people of his county, whether they would construct or aid in the construction of roads or bridges; but when the question proposed involved the borrowing or the expenditure of money, the requirement was that it must be accompanied by a provision to lay a tax for the payment of the same in addition to the usual taxes, and the legislative enactment was, that such special tax, if voted under those circumstances, should be paid in money and in no other manner.

II. Revision of the proceedings was also devolved upon the county judge; but if satisfied that they were correct, and that a majority of the votes had been cast in favor of the measure, it was made his duty to cause the proposition and the result of the vote to be entered at large in the minute-book of the county; and the same section of the act provides, that the entry, when so made, shall have the force and effect of an act of the General Assembly. Moneys so raised for such a purpose are regarded as specially appropriated by law and as constituting a fund, distinct from all others, in the hands of the treasurer, until the obligation assumed is discharged. Contracts made under such regulations are declared irrepealable, and the provision is that the taxes appointed for carrying the object into effect cannot be rescinded.

III. Corp ration defendants, acting under the authority of those provisions of law, on the first day of December, 1853, issued fifty bonds to the Lyons Iowa Central Railroad Company, of one thousand dollars each, with interest warrants, at the rate of seven per cent., payable semi-annually. Recitals in the respective bonds are, that they were issued by the authority of that act of the General Assembly, and of the required vote of the qualified voters of the county, taken in pursuance of that act. They were issued in payment of a subscription of five hundred shares in the capital stock of the plaintiff sued the defendants in the Circuit Court and recovered judgment against them for the same in the sum of five thousand one hundred and eighty-nine dollars and twenty-six cents, which is in full force and unsatisfied. Execution was duly issued on the same, and the marshal returned that he found no corporate property. Unable to enforce payment of his judgment, through the ordinary process of an execution, the plaintiff applied to the Circuit Court in which the judgment was recovered, for a mandamus to compel the defendants to levy the tax as authorized by the people of the county at the time they voted to aid in the construction of the railroad and to issue the bonds.

V. Principal defence stated in the return of the supervisors is, that they had been enjoined from levying the tax as prayed, by a prior decree of the State court, and the record shows that the State court, at the suit of a tax-payer of the county, issued an injunction perpetually enjoining the defendants from levying the special tax voted at the time the proposition to grant aid to the railroad was adopted. Want of jurisdiction in the Circuit Court was not alleged in the return, nor was any such ground assumed by the circuit judge who refused the writ. Experienced counsel, however, have made that point in this court, and it becomes the duty of the court to determine it before examining the merits. Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal, that if the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree.

Express determination of this court is, that the jurisdiction of a court is not exhausted by the rendition of the judgment, but continues until that judgment shall be satisfied. Consequently, a writ of error will lie when a party is aggrieved in the foundation, proceedings, judgment, or execution of a suit in a court of record.

Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution. Congress, it is conceded, possesses the uncontrolled power to legislate in respect both to the form and effect of executions and other final process to be issued in the Federal courts. Implied concession also is, that Congress might authorize such courts to employ the writ of mandamus to enforce a judgment rendered in those courts in a case where the ordinary process of execution is inappropriate, and where the judgment creditor is without other legal remedy; but the defendants insist that Congress has not made any such provision. Federal courts, it is argued, cannot act in any way on State officers, except in the specified cases in this court under the twenty-fifth section of the Judiciary Act. Support to that proposition is attempted to be drawn from the last clause of the thirteenth section of that act, which, in terms, authorizes this court to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the a thority of the United States.

Neither State courts nor State officers are named in the clause, and the argument is, that the authority to issue the writ does not extend to any courts or persons except those enumerated. Expressio unius est exclusio alterius. Particular consideration of that point, however, is unnecessary, as there is no application to this court for any such writ. Examination of the record, even for a moment, will show that the application for the writ in this case was to the Circuit Court, and that the case was brought here by writ of error to the judgment of that court. But this court cannot issue the writ of mandamus in any case in the exercise of original jurisdiction, as no such power is conferred by the Constitution. Direct decision of this court in the case of Marbury v. Madison, was that the clause of the thirteenth section of the Judiciary Act referred to by the defendants, so far as it professes to authorize this court to issue the writ to persons holding office under the United States, other than judicial officers, was not warranted by the Constitution, because it contemplated the exercise of original jurisdiction in a case other than those enumerated in the instrument.

Second proposition of the defendants is, that the four-teenth section of the Judiciary Act does not confer the power upon the Federal courts to issue the writ to a State officer in any case. They argue that it does not authorize those courts to issue it at all, as it is not one of the writs named in the section, and is specially provided for, as appears in the preceding section. Nothing, however, is better settled than the rule that the Circuit Courts in the several States may issue the writ in all cases where it may be necessary, agreeably to the principles and usages of law, to the exercise of their respective jurisdictions. Such was the construction given to the fourteenth section of the Judiciary Act at the same time that the last clause of the preceding section, except as applied to judicial officers, was held to be unconstitutional and void, and that construction has been followed to the present time.

None of the Circuit Courts in the several States can issue the writ as an exercise of original jurisdiction, any more than this court, but they may issue it whenever it is necessary, agreeably to the principles and usages of law, to the exercise of their proper jurisdiction, and their judgments in such cases may be-examined in this court, on writ of error, under the twenty-second section of the Judiciary Act. Objections to the jurisdiction of the Circuit Court, and of this court, are therefore overruled.

VI. Before proceeding to consider the operation and effect of the injunction issued by the State court, it becomes necessary to examine more closely into the source, nature, and operation of Federal process, and the jurisdiction and power of the Circuit Courts in the several States. Circuit Courts were created by the act of Congress, under which the judicial system of the United States was organized, but the act made no provision for the forms of process. Forms of processes in the Federal courts were regulated by the act of Congress, which was passed five days later.

Writs and processes issuing from a Circuit Court were required by that act to bear the test of the chief justice of the Supreme Court, to be under the seal of the court, and to be signed by the clerk. By the second section of the act, it was provided that the forms of writs and executions,. . . and the modes of process, in suits at common law,. . . should be the same as were then used in the Supreme Courts of the States. Subsequent act adopted substantially those provisions, and made them permanent. Legal effect of those enactments was, that Congress adopted the forms of writs and executions, and the modes of process, as then known and understood in the courts of the States, for use in the several Circuit Courts.

Modes of process, and forms of process, were in use in the States at that period, other than such as were known at common law as understood in the English courts. Radical changes had been made in some of the States, not only in the forms of mesne process, and the rules of pleading, but in the modes of process in enforcing judgment, as was well known to Congress when the Judiciary and Process Acts were passed.

Executions, it is admitted, may be issued by the Circuit Court, but the power of such courts to issue the other writs necessary to the exercise of jurisdiction, is equally clear, with the single restriction that the writ, and the mode of process, must be agreeable to the principles and usages of law. Usages of law, and not of the common law, it will be observed, are the words of the provision, which, doubtless, refers to the principles and usages of law known and understood in the State courts at the date of that enactment.

Forms of process, mesne and final, and the modes of process varied in essential particulars from the principles and usages of the common law, and in many cases they were different in the different States. Intention of Congress, in passing the Process Acts, was, that the forms of writs and executions, and the modes of process, and proceedings in common law suits, in the several Circuit Courts, should be the same as they were at that time in the courts of the respective States. Instead of framing the forms of process, and prescribing the modes of process, Congress adopted those already prepared and in use in the respective States, not as State regulations, but as the rules and regulations prescribed by Congress for use in the several Circuit Courts. Adopted as they were, by an act of Congress, they became the permanent forms and modes of proceeding, and continue in force wholly unaffected by any subsequent State legislation. Alterations can only be made by Congress, or by the Federal courts, acting under the authority of an act of Congress.

Practical effect of the course pursued was, that the forms of writs and executions and the modes of process and proceedings were the same, whether the litigation was in the State court or in the Circuit Court of the United States. They were not always the same in different States nor in different circuits; and in some instances they were widely different in the different States of the same circuit. Those diversities, or many of them, continue to the present time.

Great diversity in the forms of real actions and of indictments were the necessary effect of the system. Different rules of pleading necessarily followed. Modes of process also were different, both in respect to mesne and final process. Attachment of personal and real property upon mesne process is allowed in one district, while the power to create any such lien in the service of such process is entirely unknown in another district, even in the same circuit. Lands of the debtor were subject to seizure and sale on execution in one district, while in another real property was only subject to seizure and an extent corresponding to a modified elegit as at common law. Money judgments in one district became a lien upon the lands of the judgment debtor, while in another the judgment creditor must first seize the lands before he was entitled to any such preference.

Remedies on judgments against municipal corporations partook of the same diversity in the different districts as that appearing in the modes of process to enforce judgments recovered against private persons. Judgment against such a corporation might be enforced in one district by levying the execution, as issued against the corporation, upon the private property, personal or real, of any inhabitant of the municipality, while in another the appropriate remedy, in case the execution against the corporation was returned nulla bona, was mandamus to compel the proper officers of the corporation to assess a tax for the payment of the judgment.

Circuit courts, by virtue of those acts of Congress, became armed with the same forms of writs and executions, and vested with the authority to employ the same modes of process, as those in use in the State courts. Permanent effect of that wise measure was, that the forms of writs and executions and the modes of process were the same, whether the litigation was in the forums of the State or in the Circuit Court of the United States.

Remark should be made that those Process Acts in terms apply only to the old States, but the Federal courts in States since admitted into the Union are, in virtue of subsequent enactments, governed by regulations substantially similar.

Express provision in the third section of the act of the nineteenth of May, 1828, is, that writs of execution, and other final process issued on judgments rendered in the Federal courts, AND THE PROCEEDINGS THEREUPON, shall be the same in each State as are now used in the courts of such State.

VII. Public buildings and all other public property of a county in the State of Iowa, are exempt from execution under the law of the State, and the same law enacts that the property of the private citizen can in no case be levied upon to pay the debt of a civil corporation.

Return of nulla bona in this case therefore showed that the creditor was without remedy, unless the Circuit Court in which the judgment was recovered could issue the writ of mandamus to compel the proper officers of the county to levy the tax voted for that purpose when the consent of the county was given to incur the liability.

VIII. Definition of mandamus, as given in the code of the State, is, that it is an order of a court of competent jurisdiction commanding 'an inferior tribunal, corporation, board, or person, to do or not to do an act, the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station.'

Established rule in the Supreme Court of the State is, that where the debt of a municipal corporation has been reduced to judgment and the judgment creditor has no other means to enforce the payment, mandamus will be issued to compel the proper officers of the municipality to levy and collect a tax for that purpose.

Apart from the injunction, therefore, it is an incontrovertible fact that the appropriate remedy of the plaintiff, if his judgment had been recovered in the State court, would have been mandamus to compel the defendants, as the supervisors of the county, to levy the tax previously voted to pay the judgment.

Same views have also been advanced by this court in several cases, in which there was no dissenting opinion. Mandamus, said Mr. Justice Grier, in an analogous case, is a remedy, according to well-established principles and usages of law, to compel any person, corporation, public functionary, or tribunal, to perform a duty required by law, where the duty sought to be enforced is clear and undisputable, and the party seeking relief has no other legal remedy.

Petitioner in that case had previously recovered judgment for interest due on bonds issued by the county as material aid in the construction of a railroad, and the report of the case shows that the same legislative act which authorized the subscription made provision that the commissioners should annually 'assess a special tax sufficient to realize the amount of interest to be paid for the year.' Unanimous decision of this court was, that the writ of mandamus was the proper legal remedy to enforce that duty in case o neglect and refusal, and the judgment of the Circuit Court granting the writ was affirmed. Decision of the court was placed upon the ground not only that the writ was necessary to the exercise of jurisdiction in the Circuit Court, but that the law providing for a special tax was a part of the contract.

Necessary conclusion is, that the decision in that case is an authority for everything asked in the plaintiff's application, unless it be held that the power of the Circuit Court to grant relief in this case was displaced and overruled or perpetually suspended by the injunction issued from the State court.

Exactly the same views have been expressed by this court in later cases. Where a State has authorized a municipal corporation to contract and to exercise the local power of taxation to the extent necessary to meet the engagement, the power thus given cannot be withdrawn until the contract is satisfied.

Regularity of the proceedings in the primary suit are not open to inquiry, and it is conceded that the judgment was in regular form; and if so, then the power of the Circuit Court to issue final process, agreeably to the principles and usages of law, to enforce the judgment, is undeniable.

Authority of the Circuit Courts to issue process of any kind which is necessary to the exercise of jurisdiction and agreeable to the principles and usages of law, is beyond question, and the power so conferred cannot be controlled either by the process of the State courts or by any act of a State legislature. Such an attempt was made in the early history of Federal jurisprudence, but it was wholly unsuccessful. Suit in that case was ejectment and the verdict was for the plaintiff. Defeated in the Circuit Court, the defendant went into the State court and obtained an injunction staying all proceedings. Plaintiff applied for a writ of habere facias possessionem, but the judges of the Circuit Court being opposed in opinion whether the writ ought to issue, the point was certified to this court; and the decision was that the State court had no jurisdiction to enjoin a judgment of the Circuit Court, and the directions were that the writ of possession should issue. Prior decisions of the court had determined that a Circuit Court could not enjoin the proceedings in a State court, and any attempt of the kind is forbidden by an act of Congress.

Repeated decisions of this court have also determined that State laws, whether general or enacted for the particular case, cannot in any manner limit or affect the operation of the process or proceedings in the Federal courts.

The Constitution itself becomes a mockery, say the court in that case, if the State legislatures may at will annul the judgments of the Federal courts, and the nation is deprived of the means of enforcing its own laws by the instrumentality of its own tribunals.

Congress may adopt State laws for such a purpose directly, or confide the authority to adopt them to the Federal courts, but their whole efficacy when adopted depends upon the enactments of Congress, and they are neither controlled or controllable by any State regulation.

State courts are exempt from all interference by the Federal tribunals, but they are destitute of all power to restrain either the process or proceedings in the national courts. Circuit courts and State courts act separably and independently of each other, and in their respective spheres of action the process issued by the one is as far eyond the reach of the other, as if the line of division between them 'was traced by landmarks and monuments visible to the eye.' Appellate relations exist in a class of cases, between the State courts and this court, but there are no such relations between the State courts and the Circuit courts.

Viewed in any light, therefore, it is obvious that the injunction of a State court is inoperative to control, or in any manner to affect the process or proceedings of a Circuit court, not on account of any paramount jurisdiction in the latter courts, but because, in their sphere of action, Circuit courts are wholly independent of the State tribunals. Based on that consideration, the settled rule is, that the remedy of a party, whose property is wrongfully attached under process issued from a Circuit court, if he wishes to pursue it in a State tribunal, is trespass, and not replevin, as the sheriff cannot take the property out of the possession and custody of the marshal. Suppose that to be so, still the defendants insist that the writ was properly refused, because the injunction was issued before the plaintiff's application was presented to the Circuit court. Undoubtedly Circuit courts and State courts, in certain controversies between citizens of different States, are courts of concurrent and co-ordinate jurisdiction, and the general rule is, that as between courts of concurrent jurisdiction, the court that first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it without interference or interruption from the co-ordinate court. Such questions usually arise in respect to property attached on mesne process, or property seized upon execution, and the general rule is, that where there are two or more tribunals competent to issue process to bind the goods of a party, the goods shall be considered as effectually bound by the authority of the process under which they were first attached or seized.

Corresponding decisions have been made in this court, as in the case of Hagan v. Lucas, where it was held that the marshal could not seize property previously attached by the sheriff, and held by him or his agent, under valid process from a State court. Rule laid down in the case of Taylor v. Carryl et al. is to the same effect as understood by a majority of the court.

Argument for the defendants is, that the rule established in those and kindred cases, controls the present controversy, but the court is of a different opinion, for various reasons, in addition to those already mentioned. Unless it be held that the application of the plaintiff for the writ is a new suit, it is quite clear that the proposition is wholly untenable. Theory of the plaintiff is, that the writ of mandamus, in a case like the present, is a writ in aid of jurisdiction which has previously attached, and that, in such cases, it is a process ancillary to the judgment, and is the proper substitute for the ordinary process of execution, to enforce the payment of the same, as provided in the contract. Grant that such is the nature and character of the writ, as applied in such a case, and it is clear that the proposition of the defendants must utterly fail, as in that view there can be no conflict of jurisdiction, because it has already appeared that a State court cannot enjoin the process or proceedings of a Circuit court.

Complete jurisdiction of the case, which resulted in the judgment, is conceded; and if it be true that the writ of mandamus is a remedy ancillary to the judgment, and is the proper process to enforce the payment of the same, then there is an end of the argument, as it cannot b contended that a State court can enjoin any such process of a Federal court. When issued by a Federal court, the writ of mandamus is never a prerogative writ. Outside of this district no Circuit court can issue it at all in the exercise of original jurisdiction.

Power of the Circuit courts in the several States to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. Express determination of this court is, that it can only be issued by those courts in cases where the jurisdiction already exists, and not where it is to be acquired by means of the writ.

Proposition of the defendants proves too much; for if it be correct, the Circuit courts in the several States cannot issue the writ in any case. Such a proposition finds no support in the language of the Judiciary Act, or in the decisions of this court. Twice this court has affirmed the ruling of the Circuit court in granting the writ in analogous cases, and once or more this court has reversed the ruling of the Circuit court in refusing the writ, and remanded the cause, with directions that it should be issued. Learned courts in the States have advanced the same views, and it does not appear that there is any contrariety of decision.

Tested by all these considerations, our conclusion is, that the propositions of the defendants cannot be sustained, and that the Circuit courts in the several States may issue the writ of mandamus in a proper case, where it is necessary to the exercise of their respective jurisdictions, agreeably to the principles and usages of law. Where such an exigency arises, they may issue it, but when so employed, it is neither a prerogative writ nor a new suit, in the jurisdictional sense. On the contrary, it is a proceeding ancillary to the judgment which gives the jurisdiction, and when issued, becomes a substitute for the ordinary process of execution to enforce the payment of the same, as provided in the contract.

Next suggestion of the defendants is, that if the writ is issued, and they should obey its commands, they may be exposed to a suit for damages or to attachment for contempt, and imprisonment. No such apprehensions are entertained by the court, as all experience shows that the State courts at all times have readily acquiesced in the judgments of this court in all cases confided to its determination under the Constitution and laws of Congress. Guided by the experience of the past, our just expectations of the future are that the same just views will prevail. Should it be otherwise, however, the defendants will find the most ample means of protection at hand. Proper course for them to pursue, in case they are sued for damages, is to plead the commands of the writ in bar of the suit, and if their defence is overruled, and judgment is rendered against them, a writ of error will lie to the judgment, under the twenty-fifth section of the Judiciary Act.

Remedy in case of imprisonment is a very plain one, under the seventh section of the act of the second of March, 1833, entitled, an act further to provide for the collection of the duties on imports. Prisoners in jail or confinement for any act done or omitted to be done in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof, may apply to ei her of the justices of the Supreme, or a judge of any District court of the United States for the writ of habeas corpus, and they are severally authorized to grant it, in addition to the authority otherwise conferred by law.

Under any such circumstances, the wisdom of Congress has provided the means of protection to all persons sued or imprisoned for any act done or omitted to be done in pursuance of a law of the United States, or any order, process, or decree of any Federal judge or court of competent jurisdiction.

Views here expressed also control the decision in the case of Thomson v. Henry County.

JUDGMENT REVERSED, and the cause remanded with directions to sustain the demurrer and for further proceedings in conformity to the opinion of the court.


text: Talk:Riggs v. Johnson County/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Weber v. Lee County

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

Messrs. Dick and Grant, for the plaintiff in error; Mr. Thomas Ewing, Sr., contra.

Mr. Justice CLIFFORD delivered the opinion of the court; stating the case.

title: Weber v. Lee County


text: Talk:Weber v. Lee County

title: Talk:Weber v. Lee County


text:
Weber v. Lee County/Opinion of the Court

Bonds to the amount of four hundred and fifty thousand dollars were issued by the proper officers of Lee County in the State of Iowa, in favor of three railroad companies, in equal proportions. Recitals of the respective bonds were, that they were issued to some one of those railroad companies, pursuant to a vote of the people of the county, at an election held September 10th, 1856, authorizing the county judge to make a subscription to the capital stock of the railroad, and issue the bonds for the amount of the subscription.

Irregularities occurred in the preliminary proceedings, but the legislature of the State, on the twenty-ninth day of January, 1857, passed an act declaring, in substance and effect, that all of the votes taken in the county, in the form of a joint or several proposition, whether the county would aid in the construction of one or more railroads, specifying the amount to be given to each, as a joint or several proposition, and the subscriptions made by the county, and the bonds of the county, issued or to be issued in pursuance of those votes and subscriptions, should be regarded as legal and valid, and that such bonds, issued or to be issued under such votes and subscriptions, should be a valid lien upon the taxable property of the county.

Second section of the same act also provided that the county judge, or other proper authority of the county, should levy and collect a tax to meet the payment of the principal and interest of such bonds; and that the county, in any suit brought to recover the principal or interest of the bonds, should not be allowed to plead that the same were usurious, irregular, or invalid, in consequence of the informalities cured by that act.

Determined, as it would seem, to cure all informalities, the legislature added a third section, which provides that all bonds issued by the county, in pursuance of any such vote of the people of the county, shall be valid and of full legal and binding force and effect, notwithstanding any informality or irregularity in the submission of the question to a vote of the people, or in the taking of the vote authorizing the subscription to such railroad and the issuing of such bonds.

On their face they purport to have been issued under the authority of a vote of the people of the county, and therefore fall directly within the terms of the curative act of the General Assembly. They are for one thousand dollars each and are payable in twenty years from date, with interest at the rate of eight per cent., payable semi-annually, on the delivery of the interest coupons.

Plaintiff was the holder of a large number of these bonds, and the corporation defendants failing to pay the interest as it accrued, he commenced an action of assumpsit against them to recover the same, in the Circuit Court of the United States for the District of Iowa, and the judges of the Circuit Court for that district being interested in the event of the suit, the same was, with the consent of the defendants, transferred to the Circuit Court of the United States for the Northern District of Illinois. Defendants appeared and demurred to the declaration, and the judgment was for the plaintiff in the sum of eighteen thousand two hundred and seven dollars and ninety-two cents.

The undisputed facts are that the judgment remains unsatisfied; that the county has no property subject to execution; that the property of a private citizen cannot be taken in that State to satisfy a judgment against a municipal corporation; that the general laws of the State provide that where a judgment has been recovered against such a corporation, a tax must be levied to pay the judgment; that the power to levy the special tax, as authorized in the curative act of the General Assembly, has been by law transferred from the county judge to the defendants, and that they have neglected and refused to levy and collect any tax to pay the judgment.

Unable to enforce the judgment, the plaintiff, being without other legal remedy, applied to the Circuit Court, in which he recovered judgment, for a writ of mandamus to compel the defendants to levy the special tax, as provided in the act of the General Assembly. Adopting the usual course, the court issued the alternative writ and it was duly served. Due return was made by the defendants to the writ, in which they state that they refuse to levy the tax, and assign for cause that, at the suit of certain tax-payers of the county, they had previously been enjoined by the State court from levying any tax to pay the judgment, and allege, as matter of belief, that if they should obey the writ they would be subject to a penalty for contempt, and therefore that they cannot obey the writ and levy the tax.

Views of the plaintiff were, that the return was insufficient, and he accordingly moved the court to quash it, for the following reasons: 1. Because the decree of injunction, having been pleaded as a bar to the action to recover the interest, and the plea having been overruled in that suit, is not a sufficient answer to the application and alternative writ to enforce the judgment. 2. Because the relator was no party to the suit in which the injunction was obtained.

Parties agree that the plaintiff was not a party to that suit. They were heard at a subsequent day and the court overruled the motion to quash, discharged the rule for a peremptory writ, and rendered judgment for the defendants.

Exceptions were duly taken by the plaintiff to the decision of the court in overruling the motion to quash, discharging the rule for a peremptory writ, and in rendering judgment in the case; and he, the plaintiff, sued out this writ of error.

Attention to the facts of the case as stated will show that the questions presented for decision are the same as those just decided in the preceding case.

Public property of a county in the State of Iowa is exempt from execution, and the act of the General Assembly provides that the property of the citizen shall in no case be taken to satisfy the debt of the municipality.

Proper remedy of the judgment creditor in such a case in the State court, is y mandamus to compel the proper officers of the county to levy a tax to pay the judgment. Such a creditor having recovered judgment in the Circuit Court, is entitled to the same remedy under the Process Acts passed by Congress.

Mandamus, when issued in such a case by the Circuit Court, is neither a prerogative writ nor a new suit. On the contrary, it is a writ authorized by the fourteenth section of the Judiciary Act, as necessary to the exercise of jurisdiction which has previously attached; and when issued in such a case becomes the substitute for the ordinary process of execution to enforce the judgment. State courts cannot enjoin the process of proceedings in the Circuit courts, not on account of any paramount jurisdiction in the latter, but because they are entirely independent in their sphere of action.

JUDGMENT REVERSED and the cause remanded, with directions to grant the motion of the plaintiff and quash the return as insufficient, and for further proceedings in conformity to the opinion of the court.

Mr. Justice MILLER took no part in this judgment, being a tax-payer in Lee County.


text: Talk:Weber v. Lee County/Opinion of the Court


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The Rock Island Bridge

THIS was a libel filed in the District Court for the Northern District of Illinois, against that part of the Rock Island Railroad Bridge which is situated in the Northern District of Illinois, for alleged damages done by that part of the bridge to two steamboats, the property of the libellant, employed in the navigation of the Mississippi River. It alleged that, by law and the public treaties of the United States, the Mississippi River is, for the distance of two thousand miles, a public navigable stream and common highway, free and open to all the citizens of the United States, who are entitled to navigate the same by sailing and steam vessels, and otherwise, without impediment or obstruction; that the Rock Island Bridge obstructed the free navigation of the stream; and that by collision with this obstruction the steam vessels of the libellant had been injured, and that he had in consequence been damaged to an extent exceeding seventy thousand dollars.

In accordance with the prayer of the libel, process was issued and the property attached. The Mississippi and Missouri Railroad Company and others then intervened as claimants, and filed an exception to the jurisdiction of the court to proceed against the property in question in the manner 'in which the same is sought to be proceeded against by the libel.' In other words, they objected to the jurisdiction of the court to take a proceeding in rem against the property. The exception was sustained by the District and Circuit Courts, and the libel dismissed. The correctness of this ruling was the sole question presented for the determination of this court.

Messrs. Arrington and Rae, in support of the jurisdiction:

The jurisdiction of the American admiralty extends to all cases of tort committed on navigable waters. It may be said that the bridge is attached to, and is a part of the land; that it is like a wharf, and can no more be libelled than it. This is not so. A wharf is the shore. A bridge is not a shore. A bridge is like a vessel,-over or no the stream. A floating bridge would be within the admiralty jurisdiction: a bridge aground must be so also. When the termini rest upon either shore, the bridge is not more attached to the soil than a vessel chained to the shore. The shore, in either case, is but the incident.

To make the admiralty jurisdiction depend upon subject-matter and not upon locality, would lead to a perplexing confusion of ideas. The principle of jurisdiction of cases of tort ought to depend upon place, not upon the object affected. Like crime, it is essentially local. In The Volant, Dr. Lushington says that the jurisdiction 'does not depend upon the existence of the ship, but upon the origin of the questions to be decided, and the locality.'

Mr. B. B. Cook, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: The Rock Island Bridge


text: Talk:The Rock Island Bridge

title: Talk:The Rock Island Bridge


text:
The Rock Island Bridge/Opinion of the Court

There is no doubt, as stated by the counsel for the appellant, that the jurisdiction of the admiralty extends to all cases of tort committed on the high seas, and in this country on navigable waters. For the redress of these torts, the courts of admiralty may proceed in personam, and when the cause of the injury is the subject of a maritime lien, may also proceed in rem. The latter proceeding is the remedy afforded for the enforcement of liens of that character.

A maritime lien, unlike a lien at common law, may, in many cases, exist without possession of the thing, upon which it is asserted, either actual or constructive. It confers, however, upon its holder such a right in the thing that he may subject it to condemnation and sale to satisfy his claim or damages; and when the lien arises from torts committed at sea, it travels with the thing, wherever that goes, and into whosesoever hands it may pass. The only object of the proceeding in rem, is to make this right, where it exists, available-to carry it into effect. It subserves no other purpose.

The lien and the proceeding in rem are, therefore, correlative-where one exists, the other can be taken, and not otherwise. Such is the language of the Privy Council in the decision of the case of The Bold Buccleugh. 'A maritime lien,' says that court, 'is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted that where such lien exists a proceeding in rem may be had, it will be found to be equally true, that in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing to be carried into effect by legal process.'

There is an expression in the case of The Volant, attributed to Dr. Lushington, which militates against this view. He is reported to have said, that the damage committed on the high seas confers no lien upon the ship, and this is cited by the counsel of the appellant to show that a maritime lien is not the foundation of a proceeding in rem. But the expression is a mere dictum, and the Privy Council in the case cited allude to it, and observe that it is doubtful, from a contemporaneous report of the same case, whether the learned judge made use of it, and add, that if he did, the expression is certainly inaccurate, and not being necessary for the decision of the case cannot be taken as authority.

A maritime lien can only exist upon movable things engaged in navigation, or upon things which are the subjects of commerce on the high seas or navigable waters. It may arise with reference to vessels, steamers, and rafts, and upon goods and merchandise carried by them. But it cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind. Though bridges and wharves may aid commerce by facilitating intercourse on land, or the discharge of cargoes, they are not in any sense the subjects of maritime lien.

DECREE AFFIRMED.


text: Talk:The Rock Island Bridge/Opinion of the Court


text:
The Hypodame

APPEAL from the Circuit Court for the Southern District of New York.

Chapin libelled the propeller Hypodame for a collision which had occurred on the Hudson River, on a December night, 1862, a little below Dunderberg, between the propeller just named, then going up the river, and a schooner of his descending it, by which the schooner was struck on its port side near the cathead, split open for ten feet or more, and sunk before she could be towed into shallow water.

His allegation was that the propeller, ascending the river on its east side, at the rate of eleven or twelve miles an hour, with no proper lookout stationed or attending to his duty, ith plenty of room to have passed safely, had not done so, but, making a rank sheer from her previous course, though hailed by the schooner, and though the hail was heard, had run at full speed into the schooner, descending the river on its west side at the rate of but a mile and a half an hour, and sunk her; that by reason of the collision he had been put to great expense to raise and recover the vessel and cargo; to repair the one and save the other, the amount and particulars whereof could not as yet be correctly stated,' but would as believed exceed in the aggregate $6000.'

On the other hand, the answer denied that the propeller was going at any such rate of speed as that pretended by the libel, averring that the speed was much slower than even six miles an hour; in fact, 'very slow;' that she had one bright light on the stem forward, which shone right ahead, and four points on either bow; two bright lights on the flag-staff aft, which shone all around; a red light on the larboard side, and a green light on the starboard; with a competent lookout placed in a proper position on the forward part of the propeller, and attentive to his duty, as was the master, and also the other officers; that to avoid an apprehended danger with a steam-tug and tow descending the river, she had changed her course to the westward, giving the usual signal of such intention by two blasts of her steam whistle; that shortly after this change of course had been made, a hail was heard on board the propeller from some boat or vessel on the river, but that no boat or vessel could be seen from the propeller by reason of the darkness of the night and from the omission on the part of the vessel to show any light; that the propeller's engine was immediately slowed, and then stopped, when, at that same moment, the headlights of the propeller, shining on the sails of a vessel, revealed, for the first time, the schooner; that the bells of the propeller were rung to reverse the engine, and that this was promptly done, and the steamer's helm ported to ease the blow of the collision; inevitable, now, however, by any effort on the part of the propeller, from the close proximity and course of the schooner at the time of the hail and of the discovery on the propeller of her critical position.

The facts as assumed by both the courts below, were essentially these:

The night was dark. Those in charge of the schooner discovered the lights of the steamer after she had rounded Verplanck's Point, about two miles below the place of collision. The schooner was moving very slowly down the river, west of the middle of the stream, the steamer coming up at the rate of six to eight miles on the east side, a course which, if it had been continued, would have carried her clear of the schooner. After the steamer had passed Verplanck's Point, she discovered a tow descending the river, and was about to go to the eastward, when, seeing the light of a vessel on the east, the master decided to pass to the westward of the tow, and starboarded his vessel for that purpose, making in fact a rank sheer. He had hardly got her head turned so as to clear the tow when he heard a shout, and he told the man at the wheel to show the boat. Supposing that the sound came from some small boat, he asked the helmsman where the boat was. The man replied that he saw nothing; the steamer's head-lights the next moment shining full upon the sails of a schooner, not till this moment thought of, but now seem immediatly under the bow, and some one on board of her shouting out, 'In the name of heaven, are you coming into us? are you going to sink us?' The helmsman testified that when he heard the first shout, he told the captain to stop the boat, that there was something ahead; and that the captain did not stop her. The steamer had no lookout except the captain, who had charge of navigating her. Though the night was dark, the court 'could not conclude from the evidence that a proper lookout on the bow of the steamer would not have discov red her in time to have cleared her.' Witnesses from the schooner testified that by a good lookout she might have been seen half a mile off.

The schooner was neither carrying a light at the time of the accident nor exhibited one; no statute at that time compelled her to carry one. She had, however, a lookout. It did not appear that she understood the meaning of steamsignals.

Though a hawser was thrown from the steamer at once, and made fast to the schooner, with a view of towing her into shoal water, the blow from the steamer had so laid her open, that she went down almost immediately. She was, however, ultimately raised and repaired at large cost, as hereafter mentioned.

On this case the District Court considered that the propeller was the sole cause of the collision, and should be made liable for all the damages.

As respected these, the libel, as already said, alleged that they would exceed $6000, and stipulations for costs and value were entered into and accepted for $7250. But upon the reference, the proof showed, and the commissioner reported, that they amounted to a larger sum. The claimant filed various exceptions to the commissioner's report; the most important one having been that he had erred in allowing any greater amount of damages than what had been claimed in the libel, viz., $6000; whereupon the libel was amended by increasing the sum originally claimed by it. The District Court entered its decree for $7513.07. Upon appeal to the Circuit Court, it appearing that that sum with interest and costs exceeded the stipulations, the excess was struck out, thus reducing the recovery to $7250 for the damages and costs, that being the amount of the stipulation, and, with this reduction, the Circuit Court affirmed the decree of the District Court.

The whole case was now here for review.

Mr. Van Santvoord, for the appellants:

I. After the propeller signalled by her steam-whistle her intention to change her course and to pass toward the side of the river where the schooner was, the schooner should have exhibited a light, to show that she was on the river, and her position there. The night was dark, and the schooner could reasonably have inferred that the steamer might not, as she did not, see her.

Whatever may be the rule in respect to the duty of sailing vessels to exhibit a light at night on the high seas, it would seem to be the rule in this country, that vessels sailing at night in narrow waters like the Hudson, must exhibit a light to an approaching vessel.

In The Osprey, in the third circuit, a case of collision on a river, the court say:

'The rule of passing to the right, or porting the helm, in the case of vessels meeting on the same line, is founded upon the supposition that each party can see the other. But when one is blind and the other knows it, he should not put himself within reach of injury by any mistake of the blind.'

And though the court there said that it could not 'establish any rule to bind vessels navigating the high seas after night to carry signal lights,' they yet declared that 'where one party does this, and the other does not, we can and will treat the dark boat as the wrongdoer.'

We desire not even so much as the application of this principle. If the schooner had only shown a light for the monent it would have been sufficient. By not having done so, the persons navigating her were, themselves, the authors of her misfortune.

II. As respects the propeller. Was there fault on her part? We think not.

1. As to the lookout. The Hypodame was a river propeller, as the case shows; not one therefore that carried passengers, nor a large or first-class propeller, such as navigate the oceam; but one of a class on our rivers navigated by the master, who is also a pilot, and a steersman, alternating with a pilot and a steersman, and on which the master or steer man, on the master's watch, acts as lookout, and the pilot or steersman, on the pilot's watch, acts as lookout while the other steers. There can be no reasonable intendment that without the exhibition of a light the schooner would or could have been earlier seen by any number of lookouts on the propeller assigned to that special duty; and to impute negligence to the propeller, which had a right to act upon the supposition that if there was a vessel sailing off to westward in the darkness, on the propeller's change of course she would exhibit a light, on the ground that she had no other lookout than is usual on vessels of her class, would seem to be straining a point to charge the propeller.

2. The propeller slowing, stopping her engine and shifting her helm to port on hearing the hail, after she had been on the course toward the place of the schooner for four or five minutes and within five or six seconds of the collision, instead of slowing, stopping, and backing, is not to be regarded as a fault. A propeller, even if not of the higher class, is yet, with her water-tanks, fuel, and engines, very heavy, weighing doubtless from two to three hundred tons. Such a vessel cannot be brought to a dead stop in the water in less than one and a half to two minutes while she sheers quick. If the pilot erred in this matter, it should be attibuted to the suddenness of the emergency caused by the omission of the schooner to exhibit a light.

But if the propeller should be adjudged to have been in fault, the schooner was clearly in fault also in not exhibiting a light on the propeller's change of direction toward her, and the damages should be divided.

III. As to the damages, it is submitted that no greater should be allowed than were claimed in the libel.

Mr. Owen, contra:

I. The propeller was clearly and alone in fault, and is responsible for all damages.

1. She was in fault in not having a competent lookout properly stationed and faithfully attending to that duty. No person pretends to have acted as lookout except the captain, and he was incompetent, as he had other duties to perform in piloting his vessel, signalling and passing the descending two.

2. She was also in fault in proceeding forward after hearing the shout from the schooner. She should have stopped immediately.

II. The schooner was not in fault. The collision was not caused by any act or omission on her part.

The only fault alleged against her is, that she did not display a light on the approach of the propeller. But the law did not at that time require her to carry, nor, unless the night was so dark that she could not have seen by a vigilant tookout on the propeller far enough to have avoided her, even to exhibit a light. In addition, the sheer was abrupt, rank, and totally unexpected, so that there was no sufficient time afterwards and before the collision to display a light.

But if there had been sufficient time to display a light, still that would have been no better than the shout. And even though a light might have been better than the hail, still the schooner should not be held responsible, if, under the impending danger in which she was suddenly placed, without any previous fault on her part, failed to adopt the best mode of disclosing her presence.

III. As to the damages. When the libel was filed the amount and particulars of damages, it was stated, could not be specified, though it was asserted that they would exceed $6000. Certainly when it was discovered on the raising of the vessel that they would so exceed the sum, the libel was rightly amended. Being within the stipulation, the appellant has no cause of complaint, as they have been reduced by the Circuit Court below the amount really lost.

Reply: All the cases cited in regard to lookouts, and that there should be on vessels a lookout specially desi nated ad hoc, will be found, on examination, to be cases of vessels quite different from our ordinary river propellers; steamers of a larger class, having their pilot-houses on hurricane decks high up, and where, unless a person stands on the bow all the time, he cannot see; steamers employing moreover and requiring in their navigation a fuller complement of men; making it practicable to assign a greater number of men to different duties, but without in general securing a better result, so far as exemption from casualties is concerned, than is accomplished by a smaller force on steamers of the class of the Hypodame.

Mr. Justice GRIER delivered the opinion of the court.

title: The Hypodame


text: Talk:The Hypodame

title: Talk:The Hypodame


text:
The Hypodame/Opinion of the Court

In cases of collision the testimony is often conflicting and irreconcilable. Each party can make out a plausible case supported by some evidence. In such cases we have frequently decided that where the district and circuits concur in opinion on the facts, and there is testimony supporting their decision, we will not reverse it on doubts raised by ingenuity of counsel.

The District Courts have better opportunities for examinating such cases and forming a correct conclusion than any other. They may examine witnesses ore tenus, and although they may not have Trinity masters to assist them, yet in difficult cases depending on nautical experience the judge may call to his aid experienced masters of vessels (as is done in one district at least), whose report will greatly assit the court in coming to a correct conclusion.

In the case before us we see no reason to doubt that the conclusions of both courts below on the facts in the case are correct.

We concur also with the court below, that the propeller had no competent lookout, as required by the frequent decisions of this court. The evidence shows that the schooner might have been seen a half-mile off if there had been a competent lookout.

When the propeller made the sudden sheer towards the western shore, the man at the wheel told the captain 'to stop the boat, there was something ahead; he did not stop her; her wheel was then put to port. I then pulled the bell,' &c.

The sheer was abrupt and totally unexpected. Previous to that there was no danger calling for any peculiar precautions. The schooner was in her proper place, and could not possibly anticipate such a sudden change of course. All they could do under the circumstances was to shout-they were heard-but no attention was paid to the warning. Producing a light at that time would have been equally unavailing.

The defence relied on here was, that the shooner was in fault in not exhibiting a light on the propeller's change of direction towards her. The collision took place before the passage of the act of the 20th of April, 1864. This act (article 5th) requires sailing ships, 'under way or being towed, to carry the same lights as steamships under way, with the exception of the white mast-head lights, which they shall never carry,' an exception justified by experience, which showed that it caused many collisions, arising from mistaking it for a light on shore; the case of 'Propeller Monticello v. Mollisson,' being an example. There the steamer was running on a course a mile wide of the schooner, but mistaking her mast-head light for a light-house, she steered with such accuracy of aim as to strike the schooner exactly and with such force as to sink her.

By the customs and rules of navigation every vessel at anchor in a harbor or roadstead is bound to keep a light suspended on board. But previous to the passage of this act sailing vessels on the rivers and on the ocean were not bound by any law or custom to carry lights. The case of The Osprey, cited by the appellant's counsel, applies to vessels meeting in the same line, where one party can plainly see the other and yet keeps dark. But where the danger of collision is the consequence of a sudden and unexpected change of course, which produces a sudden peril and leaves no time to the sailing vessel to display a light before a collision-or do more than shout-where the steamboat, if it had had a sufficient lookout, might easily have avoided the collision, it has no right to complain or demand that the damages should be divided as where both are in fault.

The exceptions to the master's report are without just foundation after the Circuit Court had reduced the damages to the amount of $513.

DECREE OF THE CIRCUIT COURT AFFIRMED.

title: The Hypodame/Opinion of the Court


text: Talk:The Hypodame/Opinion of the Court

title: Talk:The Hypodame/Opinion of the Court