ernment to appoint a sheriff or marshal? or to appoint a receiver to levy the execution? or, if it had been levied, to sell the property, collect the purchase money, and pay it to plaintiff? If this cannot be done, if it never has been done, why can it do a much more unjudicial act, by appointing a collector to collect the taxes, or, what is still less appropriate, appointing a receiver, and endow him with that power. *To appoint a marshal or a sheriff to execute the process of a court to enforce the judgment of that court is not such a wide departure from the judicial function as to appoint a receiver to collect taxes, but no case has been cited of the exercise of even the former power by the court, much less the appointment, by a court of chancery, of an officer to execute the processes of a court of law. The appointment of special masters or commissioners to make sales under decrees in chancery is the ordinary mode of that court to enforce its decrees in cases where the court has jurisdiction of the subject-matter of the suit.

Not only are the decisions here reviewed of our own court clearly opposed to the exercise of this power by the court of equity, but the decisions of the highest court of the state of Kentucky are equally emphatic. It is the powers derived from the statute law of that state under which alone this tax can be collected. The issue of the bonds on which the judgment was obtained was by virtue of a special statute, and that statute prescribed the mode of levying and collecting this tax. It enacted that its collection should not be by the sheriff who collected the ordinary taxes for the state and county, but that a special tax collector should be appointed for that purpose by the justices of the county court who levied the tax. The court of appeals, construing this statute, which was in existence when the bonds were issued, holds that no other officers but these can collect the taxes, and has decided, both in reference to this law and the constitution of the state, that a court of chancery cannot appoint such an officer or exercise this function of tax collector. McLean Co. Precinct v. Deposit Bank, 81 Ky. 254. This decision, if not conclusive, is entitled to great weight as construing the statute under which alone this tax can be levied and collected.

These considerations require that the answers to each of the three questions certified to us by the judges of the circuit court be in the negative, and that the decree of that court dismissing the bill be affirmed; and it is so ordered.

HARLAN, J., (dissenting.) *The present case presents a question not heretofore decided by this court. The appellant has judgments against the county of Allen, in the commonwealth of Kentucky, which were rendered in the circuit court of the United States for the Kentucky district, for the amount of unpaid interest on bonds issued by that county in payment of its subscription to the capital stock of a railroad company, the subscription having been made and the bonds issued under express legislative authority. The county court refused to levy a tax to satisfy such judgments, although it was authorized and required by the act, in virtue of which the bonds were issued, to levy "as listed and taxed under the revenue laws of the state a sum sufficient to pay the interest on such bonds as it accrues, together with the costs of collecting the same." It was further provided by the same act, that the county court "may appoint collectors for said tax," or may require the sheriff to collect the tax. In 1876 the general assembly of Kentucky passed a special act releasing the sheriff of Allen county from the duty of giving bond for the collection of any railroad tax, and providing that the "county court shall, at the instance or motion of any person, or by request, appoint a special collector to collect all taxes or levies on said county for railroad purposes; and shall require bonds, with security, to be approved by the court, for the faithful discharge of all duties incumbent on him."

Execution upon Thompson's judgments having been returned "no prop. v.6s.c.--10

*561

*562

erty," and the county court having refused to levy a tax to pay them, the circuit court, upon Thompson's application, issued a mandamus against the judge and justices constituting the county court, commanding them to perform the duty enjoined by statute of levying, and cause to be collected, from the taxable property of the county, a sum sufficient to satisfy the before-mentioned judgments, and the costs of collecting the same. Subsequently, on May 28, 1881, the county court, in conformity with the foregoing order, made a levy upon the taxable property of the tax-payers of the county "to pay the judgments in favor of T. W. Thompson against said county." It was further ordered by the county court "that J. T. Stark be, and is hereby, appointed collector of said levy, upon his executing bond, with approved security, before the county court, and he will proceed at once to collect said levy, and pay the same over in satisfaction of the judgments heretofore named in favor of T. W. Thompson or his attorney." Stark declined to accept the office of collector. It is alleged in the bill, and admitted in the answer, "that the sentiments and feelings of a large majority of the citizens and tax-payers of the said Allen county are very hostile and outspoken against the collection or payment of the said tax.” The county court having announced that it was unable to find any person who was willing to accept the appointment of collector and undertake the collection of the levy, and Thompson being unable, as he alleges, to find any person within the county who is willing to qualify as collector, the present suit in equity was commenced against the county, and a large number of its tax-payers, whose names are given in the bill, together with the amount of their taxable property, as assessed by the proper county authorities, with the taxes due from each, as shown by the public records of the county. The bill sets out the foregoing facts, and asks that the several tax-payers, who are made defendants, be required to pay into court the several sums due from them, as shown by the levy made by the county court, and that other tax-payers, not specifically named as defendants, be required to pay into court, or to some person appointed by it as receiver, the amount due from them respectively,-such sums to be applied in satisfaction of Thompson's judgments. There is also a prayer for general relief. The parties, by their counsel, stipulated at the hearing of the cause, and it is to be taken as true, that the county court "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 the special levies of taxes in the bill of complaint set forth;" that "no such fit and proper person can be found who will undertake and perform the office and duty of such collector;" and that "the complainant is without remedy for the collection of the debt herein, except through the aid of this court in the appointment of a receiver, as prayed for in the bill, or other appropriate orders of the court."

Under this state of facts my brethren, affirming the decree below, hold that the circuit court, sitting in equity, was entirely without authority, in any way, to cause the tax-payers of Allen county to bring into court the sums due from them respectively, that the same may be applied in satisfaction of Thompson's judgments. In my judgment, there is nothing in our former decisions which prevents a court of equity from giving substantial relief to the complainant. In Walkley v. City of Muscatine, 6 Wall. 482, the application was to a court of equity to compel the levy of a tax. The only point decided was that where a municipal corporation refused to levy a tax to satisfy a judgment against it, the remedy of the creditor was a mandamus to compel such levy; and that "a court of equity 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.' In Rees v. City of Watertown, 19 Wall. 107, a federal court, sitting in equity, was asked, in the absence of a levy, to subject the property of the tax-payers of a city to the payment of complainant's judgments against it, and that the marshal of the district be empowered to seize

and sell so much of their property as might be necessary for the satisfaction of such judgments. In other words, the court was asked to make a levy of taxes. And in Heine v. Levee Com'rs, 19 Wall. 655, it appears that holders of bonds issued by the levee commissioners-no judgment at law having been recovered on the bonds, nor any attempt made to collect the amount due by suit in a common-law court-brought a suit in equity, and prayed that the commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and if, after reasonable time, they failed to do so, that the district judge of the parish, who was by statute authorized to levy the tax when the commissioners failed to do so, be ordered to make the levy. It was, decided that the power of taxation belonged to the legislative, not to the judicial, branch of the government; that, in that case, the power must be derived from the legislature of the state; if the body known as levee commissioners had, by resignation of their members, ceased to exist, the remedy was in the legislature either to assess the tax by special statute, or to vest the power in some other tribunal; that, in any event, a federal court was without power to levy and collect a tax authorized by a state law. That such was the extent of the decision in that case is shown in State R. R. Tax Cases, 92 U. S. 575, where, referring to Heine v. Levee Com'rs, it was said: "The levy of taxes is not a judicial function. Its exercise, by the constitutions of all the states and by the theory of our English origin, is exclusively legislative."

In Barkley v. Levee Com'rs, 93 U. S. 258, the court was asked to compel, by the process of mandamus, a board of levee commissioners, the members of which had resigned, to assess and collect a tax for the payment of a certain judgment against the parish; or, if that could not be done, that the police iury of the parish be required to make such assessment and collection; or, if that could not be done, that the United States marshal should be required to assess at once or by installments, from year to year, and collect sufficient taxes upon the property subject to taxation for levee purposes to pay the judgment. It was held that a mandamus could not issue, because the board of levee commissioners had become extinct as a body, and that the court had no general power to commission the marshal to levy taxes for the purpose of satisfying a judgment.

These cases only establish the doctrine that the levying of taxes is not a judicial function.

It seems to me that the granting of relief to Thompson will not, in any degree, disturb the principles announced in the foregoing cases. The bill does not ask the court to usurp the function of levying taxes. That duty has been performed by the only tribunal authorized to do it, viz., the county court of Allen county. Nothing remains to be done, except to collect from individuals specific sums of money which they are under legal obligation to pay. The collection of these sums will not interfere with any discretion with which the! Allen county court is invested by law; for, by its own order, made in conformity with the law of the state, and by the judgment in the mandamus proceedings, the sums due from the individual defendants, and from other taxpayers, has been set apart for the payment of Thompson's judgments. Those sums, when collected, cannot be otherwise used. As the county court cannot find any one who will accept the office of special collector, and as the parties agree that there is no mode of collecting the sums set apart in the hands of the individual defendants and other tax-payers, for the payment of Thompson, I am unable to perceive why the circuit court, sitting in equity, may not cause these sums to be applied in satisfaction of its judgments at law. The plaintiff has no remedy at law; for, the common-law court in rendering judgment has done all that it can do, and the local tribunal, by levying the required tax, and seeking the aid of a special collector to collect it, has done all that it can do. There is no suggestion, or even pretense, that the taxpayers who are sued dispute the regularity of the assessment made against

them by the county court. Admitting their legal liability for the specific amounts assessed against them, and conceding that what they owe must, when paid, go in satisfaction of Thompson's judgments, they dispute the authority of any judicial tribunal to compel them to pay it over. With money in their hands, equitably belonging to the judgment creditor, they walk out of the court whose judgments remain unsatisfied, announcing, in effect, that they will hold negotiations only with a "special collector," who has no existence. That the court below, sitting in equity,-after it has given a judgment at law for money, and after a return of nulla bona against the debtor,-may not lay hold of moneys, set apart, by the act of the debtor, in the hands of individuals exclusively for the payment of that judgment—and which money, the parties agree, cannot be otherwise reached than by being brought into that court, under its orders,-is a confession of helplessness on the part of the courts of the United States that I am unwilling to make. I therefore dissent from the opinion and judgment in this case.

(115 U. S. 487)

KURTZ v. MOFFITT and another.

In Error to the Superior Court of the City and County of San Francisco and State of

California.

MOFFITT and another v. KURTZ.

In Error to the Circuit Court of the United States for the District of California. Filed November 23, 1885.

1. REMOVAL OF CAUSE-HABEAS CORPUS.

A writ of habeas corpus is not removable from a state court into a circuit court of the United States under the act of March 3, 1875, c. 137, 2.

2. ARMY-DESERTER-ARREST BY STATE OFFICER WITHOUT WARRANT.

A police officer of a state, or a private citizen, has no authority as such, without any warrant or military order, to arrest and detain a deserter from the army of the United States.

W. G. Sieberst, for Kurtz. S. W. Sanderson, for Moffitt and Fields. GRAY, J. A writ of habeas corpus was issued on April 8, 1885, by and returnable before a judge of the superior court of the city and county of San Francisco in the state of California, addressed to John Moffitt and T. W. Fields, citizens of that state, upon the petition of Stephen Kurtz, a citizen of Pennsylvania, alleging that he was by them unlawfully imprisoned and restrained of his liberty, inasmuch as they had arrested him as a deserter from the army of the United States, and had no warrant or authority to arrest him, and were not officers of the United States. Moffitt and Fields, at the time of entering their appearance in that court, filed a petition to remove the case into the circuit court of the United States, because the parties were citizens of different states, and because the suit involved a question arising under the constitution and laws of the United States, to-wit, the question whether a person who is not an officer of the United States has authority to arrest a deserter from the army of the United States. The court ordered the case to be so removed.

Moffitt and Fields thereupon signed and filed in the circuit court the following return: "Now come the respondents and make this, their return to the writ of habeas corpus herein, and show that respondent J. Moffitt is a regular police officer of the city and county of San Francisco, and respondent T. W. Fields is a special police officer of said city and county; and being such officers as aforesaid, they arrested the petitioner, Stephen Kurtz, in the city and county of San Francisco, by the authority of the United States, in this, towit, that said Stephen Kurtz, under the name of Stephen Noll, on the twentyninth day of May, 1876, at Cleveland, in the state of Ohio, enlisted in the army of the United States for the term of five years, and on the seventeenth

day of March, 1879, he being a soldier attached to Co. D of the 21st regiment of infantry of the army of the United States, stationed at Vancouver barracks, in the territory of Washington, deserted from the army of the United States; and your respondents hold said petitioner for the purpose of delivering him to the military authorities of the United States to be tried according to the laws of the United States." The circuit court, upon motion and hearing, made an order remanding the case to the superior court of San Francisco; and Moffitt and Fields sued out a writ of error from this court to reverse that order.

After the case had been so remanded, Kurtz filed in the superior court of San Francisco a suggestion that the return was insufficient, and that he was entitled to be discharged, for the following reasons: "First. It appears by said return that the defendants were not officers of the United States, but are police officers of the municipality of San Francisco, and as such they have no authority to arrest or detain the plaintiff, and as such officers they have been and are prohibited from arresting or detaining the plaintiff as a deserter from the United States army by a rule of the police department which was in force at the time of the arrest of the plaintiff, and still is in force, which rule was and is as follows: 'Police officers are prohibited from arresting deserters from the United States army or navy without a warrant.' Second. The desertion set up in the return is an offense against the United States, and not against the state of California, of which commonwealth the defendants are officers, and they are therefore incompetent to arrest or detain the plaintiff. Third. The desertion set up in the return is barred by article 103 of section 1342 of the Revised Statutes of the United States." The superior court, upon a hearing, ordered the writ of habeas corpus to be dismissed and Kurtz remanded to custody, and entered judgment accordingly; and he sued out a writ of error from this court to reverse that judgment, that court being the highest court of the state in which a decision on the merits of the case could be had. See Robb's Case, 64 Cal. 431, 433, and 111 U. S. 624, 627; S. C. 4◄ Sup. Ct. Rep. 544; Barbier v. Connolly, 113 U. S. 27; S. C. 5 Sup. Ct. Rep. 357. The first question to be considered is whether this case was rightly re-✦ manded to the state court, or should have been retained and decided in the circuit court of the United States, into which it had been removed on a petition filed under the act of March 3, 1875, c. 137, § 2. In order to justify the removal of a case from a state court into the circuit court under this act, it is not enough that it arises under the constitution and laws of the United States, or that it is between citizens of different states, but it must be a "suit of a civil nature, at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars." 18 St. 470. A writ of habeas corpus, sued out by one arrested for crime, is a civil suit or proceeding, brought by him to assert the civil right of personal liberty, against those who are holding him in custody as a criminal. Ex parte Tom Tong, 108 U. S. 556; S. C. 2 Sup. Ct. Rep. 871. To assist in determining whether it is, within the meaning of the act of 1875, a "suit at law or in equity where the matter in dispute exceeds the sum or value of five hundred dollars," it will be convenient to refer to the use and interpretation of like words in earlier acts defining the jurisdiction of the national courts.

The judiciary act of September 24, 1789, c. 20, § 22, authorized “final judg. ments and decrees in civil actions and suits in equity in a circuit court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs," to be revised by this court on writ of error or appeal. *1* St. 84. The act of April 2, 1816, c. 39, § 1, provided that no cause should be brought to this court by appeal or writ of error from the circuit court for the district of Columbia, "unless the matter in dispute in such cause shall be of the value of one thousand dollars or upwards, exclusive of costs." 3 St. 261.