pellees complain, but it cannot be considered upon this appeal by the purchaser at the tax sale; and, perhaps, under the statutes regulating the jurisdiction of this court, it could not have been the subject of a separate appeal by the owner of the lot.

We perceive no error in the decree, and it is affirmed.

(115 U. S. 550)

THOMPSON v. ALLEN Co. and others.1

Filed November 23, 1885.

1. EQUITY JURISDICTION-LEVY AND COLLECTION OF TAXES.

The proposition that the levy and collection of taxes, though they are to be raised for the satisfaction of judgments against counties or towns, is not within the jurisdiction of a court of equity, reviewed and reaffirmed.

2. SAME-FAILURE OF LEGAL REMEDY.

The fact that the remedy at law by mandamus has proved ineffectual, and that no officers can be found to perform the duty of levying and collecting taxes, is no sufficient ground of equity jurisdiction.

3. SAME-VACANCY IN OFFICE OF COLLECTOR.

The principle is the same where the proper officers of the county or town have levied the tax, and no one can be found to accept the office of collector of taxes. This gives no jurisdiction to a court of equity to fill that office or to appoint a receiver to perform its functions.

4. SAME INADEQUACY OF REMEDY.

The inadequacy of the remedy at law, which sometimes justifies the interference of a court of equity, does not consist merely in its failure to produce the money, a misfortune often attendant upon all remedies, but that in its nature or character it is not fitted or adapted to the end in view; for, in this sense, the remedy at law is adequate, as much so, at least, as any remedy which chancery can give. HARLAN, J., dissenting.

Appeal from the Circuit Court of the United States for the District of Kentucky.

W. O. Dodd and Chas. Eginton, for appellant, T. W. Thompson. John M. Brown and Geo. M. Davie, for appellees, Allen Co. and others.

MILLER, J. *This is an appeal from a decree of the circuit court of the United States for the district of Kentucky, dismissing the bill of the appellant, who was plaintiff in that court. The case was tried on bill, answer, exceptions to the answer, and a stipulation as to the facts. The substance of the bill is that plaintiff had obtained against Allen county, in that court, two judgments at law, amounting to over $27,000, on coupons for interest on bonds issued by the county to pay for subscription to the stock of the Cumberland & Ohio Railroad Company; that, after executions on these judgments had been duly returned "no property found," the court, at the instance of the plaintiff, issued writs of mandamus to the justices of the Allen county court, under which they levied a tax of $2.08 on every hundred dollars' worth of taxable property in the county to pay said judgments; that, at the same time, they elected one J. T. Stork collector of said tax levy, and made an order that he give bond with good security as such collector, and proceed to collect the levy and pay it over in satisfaction of the judgments; that Stork refused to give bond as required, and refused to accept and qualify as such collector; and that, by reason of the hostility of the citizens and tax-payers of Allen county, no one can be found in the county who will perform the duty of collector. The bill then gives the names of about 30 of the principal taxpayers in the county, with the value of the assessed property of each, and the amount of tax due from him under said levy, alleging that the tax-payers are too numerous to be sued, and praying that these may be sued as defendants representing all otners in like circumstances, and be required, with the county,

1S. C. 13 Fed. Rep. 97.

to answer the bill. The prayer of the bill for relief is that, inasmuch as the complainant is without remedy at law, the court, sitting in chancery, will appoint a receiver, who shall collect these taxes, and that the money arising therefrom be from time to time paid over in satisfaction of plaintiff's judg ments, and that the several tax-payers of said county, made defendants, be required to pay into court, with like effect, the sums due by them as alleged in the bill. A joint answer was filed by Allen county and the other defendants who were served with process. They admit the recovery of the judg ments, the return of the executions "nulla bona," the issue of the writs of mandamus, and the levy of the tax by the county court. They also admit the election of Stork as collector and his refusal to serve, and they deny everything else. They say that the bonds were procured by fraud and without consideration, the road was never built, the tax is unjust and oppressive, and they deny the jurisdiction of the court, sitting as a court of equity, to collect these taxes, which can only be done by a collector of taxes for said county, appointed according to law, and not otherwise. Exceptions were filed to this answer, which were not passed upon, but the case was heard on bill, answer, exceptions, and the following stipulation: "By leave of the court the parties now stipulate of record in this cause: (1) That the county court of Allen county has in good faith and diligently endeavored to find a fit and proper person to act as collector of the railroad taxes in said county, and of the special levies of taxes in the bill of complaint set forth; (2) that no such fit and proper person can be found who will undertake and perform the office and duty of such collector; (3) that the complainant is without remedy for the collection of its debt herein, except through the aid of this court in the appointment of a receiver, as prayed for in the bill, or other appropriate order of the court." The hearing was had before the circuit justice and the circuit judge, who certified that they were opposed in opinion on the following questions occurring in the progress of the case: "(1) Whether taxes levied under judicial direction can be collected through a receiver appointed by the court of chancery, if there is no public officer with authority from the legislature to perform the duty. (2) Whether taxes levied by state officers under judicial direction can be collected through a receiver appointed by the United States court, where the legislature has provided an officer to collect, but there is a vacancy in office, and no one can be found who is willing to accept the office. (3) Whether a court of chancery can grant any relief to complainant upon the facts recited in the bill, answer, and stipulation, as presented in this record." A decree was rendered in accordance with the view of Presiding Justice MATTHEWS, whose opinion is found in the record, by which the bill was dismissed.

The questions on which the judges of the circuit court divided are not new in this court, for, while the subject, in the precise form presented in the first and second questions, may not have been decided, the whole subject has been often before us, and the principles which govern it have been well considered. The cases in which it has been held that a court of equity cannot enforce the levy and collection of taxes to pay the debts of municipal corporations began with Walkley v. City of Muscatine, 6 Wall. 481. In that case the complainant Walkley had procured judgments against the city of Muscatine for interest on bonds of the city, executions had been returned “nulla bona," the inayor and aldermen had refused to levy a tax for the payment of the judg ments, and had used the annual tax for other purposes, and paid nothing to plaintiff. Walkley then filed his bill in equity, praying a decree that the mayor and aldermen be compelled to levy a tax and appropriate so much of its proceeds as might be necessary to pay his judgments. This court said, by Mr. Justice NELSON, that the remedy was by mandamus at law, and "we have been furnished with no authority for the substitution of a bill in equity and injunction for the writ of mandamus;” and he adds that "a court of equity

3

is invoked as auxiliary to a court of law in the enforcement of its judgments in cases only where the latter is inadequate to afford the proper remedy." * By inadequacy of the remedy at law is here meant, not that it fails to produce the money,-that is a very usual result in the use of all remedies,-but that in its nature or character it is not fitted or adapted to the end in view. This is clearly stated in the next case in this court on the same subject, namely, Rees v. Watertown, 19 Wall. 107. In that case, as in this, execution on a judgment against the city of Watertown had been returned “no property found." Writs of mandamus had been issued requiring the levy of a tax to pay the judgment. These writs had failed by reason of resignations of the officers of the city to whom they were directed, and this had occurred more than once. The court was pressed with the doctrine that, the writ of mandamus having proved inadequate, a court of equity should provide some other remedy. To this it replied: "We apprehend that there is some confusion in the plaintiff's proposition, upon which the present jurisdiction is claimed. It is conceded, and the authorities are too abundant to admit a question, that there is no chancery jurisdiction where there is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that by means of the aid afforded by the legislature, and by the devices and contrivances set forth in the bill, the writs have been fruitless; that, in fact, they afford him no remedy. The remedy is in law and in theory adequate. The difficulty is in its execution only. The want of a remedy, and the inability to obtain the fruits of a remedy, are quite distinct, and yet they are confounded in the present proceeding. To illustrate: the writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since there existed in central New York confederations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of the land. There was a perfect remedy at law, but through fraud, violence, or crime its execution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal remedy was temporarily suspended by means of illegal violence, but the remedy remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution."

*

The language here used is not only applicable to the case under consideration, but in regard to the facts they are the same. In that case the court said: "The plaintiff further invokes the aid of the principle that all legal remedies having failed, the court of chancery must give him a remedy, and that there is a wrong which cannot be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. * Generally its jurisdiction (chancery) is as well defined and limited as is that of a court of law. * * * Lord TALBOT says there are cases, indeed, in which a court of equity gives remedy where the law gives none; but where a particular remedy is given by law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court (chancery) to take it up where the law leaves it, and extend it further than the law allows." "Generally its jurisdiction depends on legal obligations, and its decrees can only enforce remedies to the extent and in the mode established by law. A court of equity cannot, by averring there is a right but no remedy known to the law, create a remedy in violation

of law, or even without the authority of law. It acts upon established principles not only, but through established channels." The court also said the power to direct a tax to be levied is the highest attribute of sovereignty, and is exercised by legislative authority only. It is a power that has not been extended to the judiciary. "Especially," says the opinion, "is it beyond the power of the federal judiciary to assume the place of a state in the exercise of this authority at once so delicate and so important."

These propositions are reasserted in a later case of the same term of the court. Heine v. Levee Com'rs, 19 Wall. 655. It was, like the present, a bill in chancery to enforce collection of taxes where no officers could be found whose duty could be enforced by mandumus. "There does not," said the court, "appear to be any authority, founded on recognized principles, of a court of equity on which the bill can be sustained. If sustained at all, it must be on the broad ground that, because the plaintiff finds himself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which, in the imperfection of human nature, admits of no redress. The holder of a corporation bond must, in common with other men, submit to this calamity when the law affords no relief." The court added that the exercise of the power of taxation belonged to the legislature and not to the judiciary, and, in that case, it had delegated the power to the levee commissioners. “If that body has ceased to exist, the remedy is in the legislature, either to assess the tax by special statute, or to vest the power in some other tribunal. It certainly is not invested as in the exercise of an original jurisdiction in any federal court." "It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the federal government of the legislative functions of the state government." And it cites Walkley v. Muscatine and Rees v. Watertown as in point. Mr. Justice BRADLEY, who decided this case on the circuit, had there elaborately discussed the whole subject. See Heine v. Levee Com'rs, 1 Woods, 246. This language is repeated and approved in State Railroad Tax Cases, 92 U. S. 615. The same principles are laid down in Barkley v. Levee Com'rs, 93 U. S. 258, in which the whole subject is reviewed. It is said there that the power to compel, by mandamus, municipal officers to perform the ministerial duty of levying proper taxes is a distinct power from the levy and collection of taxes by a court of chancery, and "the truth is, that a party situated like petitioner (where there were no such officers) is forced to rely on the public faith of the legislature to supply him a proper remedy. The ordinary remedy having failed by lapse of time and the operation of unavoidable contingencies, it is to be presumed that the legislature will do what is equitable and just, and, in this case, legislative action seems to be absolutely requisite." In the case of Meriwether v. Garrett, 102 U. S. 501, the legislature of Tennessee had repealed the charter of the city of Memphis, and abolished the city organization, at a time when there were taxes assessed and uncollected amounting to several millions of dollars, and debts of the city to a much larger amount. Some of these taxes had been levied under compulsion of writs of mandamus from the circuit court of the United States. A bill in chancery was filed in that court by some of these creditors praying the appointment of a receiver, who should take charge of all the assets of the city of Memphis, collect these taxes, and pay them over to the creditors, and generally to administer the finances of the extinct city as a court of equity might administer the insolvent estate of a dead man. The decree of the circuit court, granting relief according to the prayer of the bill, was reversed in this court, and the bill dismissed. Owing to a division in the court no elaborate opinion representing the whole court was given, but the chief justice announced eight propositions, on

*559

558

which the majority were agreed. Of these propositions the following are perti nent here: "(3) The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legislature. *(4) Taxes levied according to law before the repeal of the charter, other than such as are levied in obedience to the special requirements of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentalities of a court of chancery at the instance of creditors of the city. Such taxes can only be collected under authority from the legislature. If no such authority exists, the remedy is by appeal to the legislature, which alone can grant relief. Whether taxes levied in obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed by a court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided, as the case does not require it."

But though the question was not then decided, and it is urged upon us now, we see no more reason to hold that the collection of taxes already assessed is a function of a court of equity than the levy or assessment of such taxes. A court of law possesses no power to levy taxes. Its power to compel officers who are lawfully appointed for that purpose, in a case where the duty to do so is clear, and is strictly ministerial, rests upon a ground very different from and much narrower than that under which a court of chancery would act in appointing its own officer either to assess or collect such a tax. In the one case the officers exist, the duty is plain, the plaintiff has a legal right to have these officers perform that duty for his benefit, and the remedy to compel this performance, namely, the writ of mandamus, has been a wellknown process in the hands of the courts of common law for ages. In the other there exists no officer authorized to levy the tax or to collect it when levied. The power to enforce collection when the tax is levied, or to cause it to be levied by existing officers, is a common-law power, strictly guarded and limited to cases of mere ministerial duty, and is not one of the powers of a court of chancery. It would require in this court, not the compulsory process against some existing officer to make him*perform a recognized duty, but the appointment by the court of such an officer and a decree directing him what to do. In the one case, his power proceeds from the law, and he is compelled to exercise it; in the other, it proceeds from the court which first makes its own decree, and makes an officer to enforce it. No such power has ever yet been exercised by a court of chancery. The appointment of its own officer to collect taxes levied by order of a common-law court is as much without authority as to appoint the same officer to levy and collect the tax. They are parts of the same proceeding, and relate to the same matter. If the commonlaw court can compel the assessment of a tax, it is quite as competent to enforce its collection as a court of chancery. Having jurisdiction to compel the assessment, there is no reason why it should stop short, if any further judicial power exists under the law, and turn the case over to a court of equity. Its sheriff or marshal is as well qualified to collect the tax as a receiver appointed by the court of chancery. The difficulty is that no power exists in either court to fill the vacancy in the office of tax collector; and the case of Lee Co. v. Rogers, 7 Wall. 175, where the laws of the state of Iowa expressly authorize the court to enforce its writ of mandamus by making such appointment, the only case in which it has ever been done, shows that without such legislative authority it cannot be done.

It is the duty of the marshals of the federal courts and the sheriffs of state courts to levy executions issuing from these courts on the property of defendants, and sell it, to raise money to pay their judgments. Let us suppose that, for some reason or other, the office of marshal or sheriff became vacant for a while. Would that authorize the court of equity of the federal or state gov