The Board of Commr's of Knox County v. Aspinwall

Where the commissioners of a county have authority by statute to issue bonds, and are required to levy a' tax to pay the interest coupons as they become due, and, having issued such bonds, they neglect or refuse to assess the tax or pay the interest, a writ of-mandamus is the proper legal remedy. The Circuit Courts of the United States have authority to issue such writ of mandamus against the commissioners, where it is necessary, as a remedy for suitors in such court. It is uot a sufficient reason for setting aside a peremptory mandamus, that a. previous alternative writ had not issued.

This case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana. The case is stated in the opinion of the court. The principal point in controversy was the pow^r of the Circuit Court, under the 14th section of the Judiciary 'act, to issue a writ of mandamus in this ease. Upon this subject, a portion of the arguments of the counsel can be given. Mr. Porter said: If the Circuit Court of the United States has power to issue a writ of mandamus to enforce the payment of a judgment at • law, it derives that power from the provisions of the 14th see- ' tion of the Judiciary act of 1789. ■ It is not pretended that there is any other foundation for it. The words of the section are: “ That all the before-mentioned courts of the United States shall have 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 jurisdictions, and agreeable^ to the principles and usages of law.” I maintain that the “exercise of jurisdiction,” in any sense in which the writ of mandamus could be called in aid of it, was completé in this case upon the rendition- of final judgment; that to enforce the payment of that judgment by means of this extraordinary writ would not be “ agreeable to the principles and usages of law.” Passing over the fact which appears in the. record, that an execution was issued, and a levy actually made, which the party voluntarily abandoned to resort to his writ of mandamus; and conceding, for the sake of the argument, what the opposing counsel assumes in his brief, that “no execution can be levied on the general property and effects of the county,” I affirm that this state-of facts simply presents the ordinary case of a party holding a; debt of record which cannot be realized by process of execu- ■ tion. And I deny that it follows that a writ of mandamus in such a case is, in any just sense, “necessary for the exercise of jurisdiction,” or “agreeable to the principles and usages of law.” The writ of mandamus is the appropriate remedy to enforce the performance of some duty enjoined by law, where there is no. other adequate .remedy. The duty imposed by law on the board of commissioners of the county of Knox, now sought to -be enforced, was a duty to. - levy a tax for the payment of interest coupons, not judgments of'ia court of law. The holders of those coupons had a right to go into the s State courts,-and enforce the levying of the tax for their payment, by mandamus; but they elected a different remedy. They chose to sue in the ordinary form, in the Circuit Court, merged their coupons in a judgment at law, and must rely for the collection of that judgment on the ordinary and usual writs in use for that purpose. If, upon the failure of these, they may resort to the writ of mandamus to compel the payment of their judgment, on the ground that such a writ is necessary to the exercise of jurisdiction, why may it not be used in every case; to compel the payment of judgments which cannot be collected in the usual -way? The words of the statute, then, instead of being understood as words restraining the power to issue the writ in aid and furtherance of ordinary remedies only, will become a grant “to. the Circuit Courts of the power to employ a new and formidable process in all eases where the common writs of execution fail. • The defendants in error rely on the case of Wayman v. Southard to show that the words “ necessary for the exercise of jurisdiction ” apply to proceedings after judgment, as well as before. The question decided in that ease will appear from the’ certificate at the close of the opinion, which is as follows: “ Certificate. — This cause came on to be heard on the questions certified from the United States court for the seventh circuit and district of Kentucky, and was argued by counsel. On consideration whereof, this court is of opinion that the statutes of Kentucky in relation to executions, which are referred to in the questions certified to this court, on a division of opinion of the said judges of the said Circuit Court, are not. applicable to executions which issue on judgments reudered by the courts of the United States; which is directed to be certified to the said Circuit Court.” 10 Wheaton, 50. ' That part of the opinion of the court which relates to the question now under consideration isjis follows: “The Words of the 14th section are understood by.the court to comprehend executions. An execution^ a writ which is certainly ‘agreeable to the principles and usages of law.’ “ There is no reason for supposing that the general • term ‘writs’ is restrained, by the words ‘which may be necessary for the exercise of their respective jurisdictions,’ to original process, or to process anterior to judgments. 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 tobe 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. If any doubt could exist on this subject, the 18th section, which treats of the authority of the court over its executions as actually existing, certainly implies that the power to issue them had been granted' in the 14th section. The same implication is afforded' by the 24th and 25th Sections, both of which proceed on the idea that the power to issue writs of execution was in possession of the courts. .So, too, the process act, which was depending at the same time with the Judiciary act, prescribes the forms of executions, but does not give a power to issue them. On the-clearest principles of just construction, then, the 14th section of the Judiciary act must be understood as giving to the courts of the iTnion, respectively, a power to issue executions on their judgments.” 10 Wheaton, 23, 24: Now, I submit that all this is inapplicable to the case at bar. The learned counsel for the defendants says, in his brief, after quoting from the opinion of the court .in Wayman v. Southard, “all that is said above about writs of execution must be equally applicable to writs of 'mandamus, when they are necessary to carry a judgment into effect.” Granting this, it must appear that in the case at bar a writ of mandamus was necessary to carry the judgment into effect That is the touchstone proposed by the counsel for the defendants; and tried by that very test, the case is, in my opinion, against them. . A case might be imagined, doubtless, where a writ of mandamus would be necessary to the “beneficial exercise of jurisdiction,” and to carry the judgment into effect. Suppose, for instance, that an execution were.lodged in the hands of the sheriff, and that he were to neglect or refuse to serve it,. In such a case a mandamus might properly be invoked in aid of the jurisdiction,- though more summary proceedings would probably be preferred. Rut in this-case no obstruction is put in the way of the ordinary writs, which, “agreeably to the principles and usages of law,” may issue upon judgments at law. All the remedies which any such judgment ordinarily supplies. are open to the parties in this case. Rut they are said to be inadequate; yet it does not appear that ample property could not be found whereon to levy. The parties then propose to seek another remedy, not a means of carrying into effect the judgment already obtained, but a separate and independent proceeding, in which they must begin de novo, and conduct a new suit through the several stages of pleadings, hearing, and final judgment. The judgment already obtained is not the basis of this new proceeding. The claim on «which that judgment was obtained is, it is a proceeding for enforcing the claim by a separate and independent action, not for enforcing the judgment. The object of the proceeding is, to créatela fund out of which the claim may be paid. Is there any writ or proceeding in the same case by which a fund may be created for the payment of a judgment at law, “agreeably to the principles and usages of law? ” The proceedings in mandamus constitute a separate suit ir general. So say the authorities. 6th Rae. Ab., 458. Mr. Vinton said: The Judiciary act of 1789, after having conferred on tfie several courts of the United States their respective, jurisdictions over the matters subjected- to their cognizance, and upon-which they may pronounce judgments, proceeds iii the 14th section to provide for ^the ex'ercise of those jurisdictions— that -is to say, for carrying them into execution, in the language-of the above-recited clause of the Constitution, and, as I have already said, into full and complete execution. -For that purpose it enacts “that all the before-mentioned courts of the • United States, (the Circuit Court being one of them,) shah have 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 jurisdictions and agreeable to the principles and usages of law.” 1 Statutes at Large, 81. Under this section, the power of'the Circuit Courts and of all other courts of the United States is limited to the issue of writs. for the sole purpose or object of exercising their jurisdictions; but for the accomplishment of that object and purpose, the power is given to issue “all writs,” whether of mandamus or any other writs not specially provided for by statute, which may be necessary, and are agreeable to the principles and usages of law. For the accomplishment of-that purpose no language could be more comprehensive. A construction was given to this 14th section in respect to ' the extent of the power conferred by it on the Circuit Courts to.issue writs in the above-mentioned case of dayman v. Southard, 6 Pet. Coud. Rep., 4. In that case, it was insisted by one of tlie parties, that the power conferred by that section was limited to process ante- . rior to the rendition of the judgment, and -that when judgment was rendered the jurisdiction of the court was exercised and exhausted; and that, consequently, the Circuit Courts could not, by virtue of that section, issue executions on their judgments. The court, after reciting the words of the’Mth section, answer this objection by saying, “the words of the fourteenth section are understood by .the court to comprehend executions. An execution is a writ which is certainly agreeable to the principles. and usages of law. There is no reason for supposing that the general term, ‘writs,’ is restrained, by the words ‘which may be necessary for the exercise of their respective jurisdictions,’ to original process, or to process anterior to judgments. 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.” 6 Pet. Cond. Rep., 4, 5. All that is said above about writs of execution must be ■ equally applicable to writs of mandamus, when they are necessary to carry a judgment into effect. This decision.establishes two propositions, which have an important bearing on the case now before the eourt. 1st. That the jurisdiction of the Circuit Court over a case continues until .its judgment is satisfied. 2d. That it has power to issue such writs, both before and after judgment, as. may be necessary for the exercise of its jurisdiction, and are agreeable to the principles and usages of law. Erom these propositions, it would seem to follow, as a necessary corollary, that if in any case the writ of mandamus was necessary for the satisfaction of the judgment, and the case itself was one where, by the principles and usages of law, the writ would issue, then the 14th section confers on the court power to issue it for that special purpose. The question of the extent of power given to the Circuit-Courts by this 14th section, to issue writs of mandamus, first, came up for decision in this eourt, in the case of Mclntire v. Wood, 2 Pet. Cond; Rep., 588. Mr. Vinton then proceeded to comment on several subsequent decisions of this court.