Riggs v. Johnson County

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 *185 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 pai’ty 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 to 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.

IL Revision of the proceedings was also devolved upor *186 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. Corporation 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 railroad, and the record shows that the plaintiff' is the holder of forty-seven of the bonds.

IV. Payment of the interest warrants having been refused, 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 com *187 pel 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 pi'oeess 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 *188 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 sectiou 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 authority 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. IHxpressio 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 eoui’t cannot issue the writ of mandamus in any ease 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 *189 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 tipie.*

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 maybe re-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 *190 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 as 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 eases 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 re* *191 speetive 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 w'ere 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 *192 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 Staté 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 *193 levy the tax voted for that purpose when the consent of the county was given to incur the liability.

VIIL 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 *194 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 of 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 w'as 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 *195 was for the plaintiff. Defeated in tbe Circuit Court, the defendant went into the State court and obtained an injunction staying all proceedings. Plaintiff applied for a writ of habere facias 2possessionem, 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 ivas 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 beyond the reach of *196 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 *197 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 be 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 pi’erogative 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 *198 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 eases, 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 *199 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 either 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 graut 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 jui'isdietion.

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

Judgment reversed, and the cause remanded with direc *200 tions to sustain the demurrer and for further proceedings in conformity to the opinion of the court.

Code, §§ 114, 120.

Rhode Island v. Massachusetts, 12 Peters, 718.

Wayman v. Southard, 10 Wheaton, 23; Suydam v. Williamson, 20 Howard, 437 2 Tidd’s Practice, 1134; Co. Lit., 288, b.

1 Stat. at Large, 81.

1 Cranch, 175.

McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheaton 601; Conklin’s Treatise, 161.

1 Stat. at Large, 93.

1 Stat. at Large, 276.

Angell & Ames on Corporations, § 629.

4 Stat. at Large, 274; 5 Id. 499, 789.

Code, sec. 1895; Revision, sec. 3274.

Code, sec. 2179; Revision, 3761.

Coy v. City Council of Lyons, 17 Iowa, 1; Dox v. Johnson Co., 12 Id. 237; Clark v. City of Davenport, Id. 335.

Commissioners of Knox Co. v. Aspinwall et al., 24 Howard, 303.

Von Hoffman v. Quincy, 4 Wallace, 554; Supervisors v. United States, Id. 444.

Wayman v Southard, 10 Wheaton, 22; Bank of the United States v. Halstead, Id. 56.

McKim v. Voorhies, 7 Cranch, 281.

Diggs et al. v. Wolcott, 4 Cranch, 179; 1 Stat. at Large, 335.

United States v. Peters, 5 Cranch, 136.

Slocum v. Mayberry, 2 Wheaton, 9; Beers et al. v. Haughton, 9 Peters, 359.

United States v. Peters, 5 Cranch, 136; Boyle v. Zacharie et al., 6 Peters, 658.

Duncan v. Darst et al., 1 Howard, 306; Peck v. Jenness, 7 Id. 625.

Ableman v. Booth, 21 Howard, 516.

Freeman v. Howe et al., 24 Id. 455; Buck v. Colbath, 3 Wallace, 341.

Payne v. Drewe, 4 East, 523.

10 Peters, 400.

20 Howard, 595.

Mallett v. Dexter, 1 Curtis C. C. 174.

Kentucky v. Dennison, 24 Howard, 97.

Kendall v. United States, 12 Peters, 615-627; McClung v. Silliman, 6 Wheaton, 601; McIntire v. Wood, 7 Cranch, 506.

Knox County v. Aspinwall et al., 24 Howard, 385; Von Hoffman v. Quincy, 4 Wallace, 554; Supervisors v. United States, Id. 446.

Thomas v. Allegheny County, 32 Pennsylvania State, 225 ; Hamilton v Pittsburg, 34 Id. 509; Armstrong v. Allegheny, 37 Id. 279 ; Graham et al. v. Maddox et al., 6 American Law Register, 620; Carroll v. Board of Police, 28 Mississippi, 38; Moses on Mandamus, 126.

Kentucky v. Dennison, 24 Howard, 97.

4 Stat. at Large, 634.