Board of County Com Rs of Labette Co Kansas v. United States Moulton

• Decision Date: 17 November 1884
• Citation: 112 U.S. 217,28 L.Ed. 698,5 S.Ct. 108
• Parties: BOARD OF COUNTY COM'RS OF LABETTE CO., KANSAS, and others v. UNITED STATES ex rel. MOULTON
• Court: U.S. Supreme Court

112 U.S. 217

5 S.Ct. 108

28 L.Ed. 698

BOARD OF COUNTY COM'RS OF LABETTE CO., KANSAS, and others v. UNITED STATES ex rel. MOULTON.

November 17, 1884.

B. W. Perkins, for plaintiffs in error.

S. E. Brown, for defendant in error.

The relator, on June 7, 1877, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Oswego, in the county of Labette, in that state, for $9,221.34, with interest and costs, which is still in force and unpaid. That judgment was recovered upon coupons for unpaid interest on bonds, issued in the name and on behalf of Oswego township, by the board of county commissioners of Labette county, pursuant to the act of the legislature of the state, entitled 'An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same,' approved February 25, 1870, and were payable to the Missouri, Kansas & Texas Railway Company, or bearer. On his information, an alternative writ of mandamus was allowed by the circuit court, June 10, 1881. The command of the writ was as follows: That 'the said board of county commissioners of Labette county, state of Kansas, do forthwith levy and collect and pay over, or cause to be collected and paid over, to the relator, a tax on all the taxable property within the township of Oswego as constituted in the year 1870, and to do and perform in the manner and at the time required by law each and every and all singular the matters and things in respect to this special tax that are required by law by you to be done in respect to general taxation; and we do further command that you, the said clerk of the said board of the said county, do enter or record the levy of such tax, and enter the same on a tax roll or list, and record the proceedings of said board in respect to such taxation, and all proceedings that by law should be had and recorded in reference to taxation, and determine, extend, and carry out the sum or sums of money to be levied or extended against each and every tract or lot of land, and all other taxable property, as provided by said laws, and set down such tax in a separate column, and complete the said tax roll or list in the manner and at the time required by law, and attach thereto your certificate and the seal of your office and the seal of your county and corporation, and that you deliver the same, so sealed and signed, to the treasurer of your said county, at the time and in the manner required by law, and that you do and perform in the proper manner and at the proper time each and every act and thing by law required to be done in respect to taxation; and we command you, the said treasurer of said county, to accept and receive the said tax roll or list from said clerk, and to proceed as provided by law to collect such tax and to publish the list required by law, and to distrain for said tax, and to advertise lands for sale for the non-payment of such tax, and to offer the same for sale, and to strike them off at such sale, all to be done in the manner and at the time required by law, and to take each and every and all and singular the process and proceedings, and do and perform each and every act and thing imposed upon you by the law in respect to the enforcement or collection of taxes, the same in respect to this tax as to other and general taxes, at the time and in the manner provided by law, and that you pay the said moneys to the relator, or into this court for his use.' To this the respondents jointly and severally demurred, and, for causes of demurrer, assigned the following: (1) Because the court has no jurisdiction of the persons of the respondents or the subject of the action; (2) because of defect of parties defendant; (3) because several causes of action are improperly joined; (4) because the writ does not state facts sufficient to entitle the relator to the relief demanded against the respondents. This demurrer was overruled by the circuit court, and a per-emptory writ of mandamus awarded, to reverse which judgment this writ of error has been sued out.

[Argument of Counsel from pages 219-220 intentionally omitted]

MATTHEWS, J.

The objection that the circuit court had no jurisdiction to issue its mandamus to the plaintiffs in error is based upon the supposition that, because they are not parties to the judgment against Oswego township, and are not officers of or representatives of that municipal corporation, but are officers of the county of Labette, the proceeding against them is the exercise of an original jurisdiction, which does not belong to that court. It is quite true, as it is familiar, that there is no original jurisdiction in the circuit courts in mandamus, and that the writ issues out of them only in aid of a jurisdiction previously acquired, and is justified in such cases as the present as the only means of executing their judgments. But it does not follow because the jurisdiction in mandamus is ancillary merely that it cannot be exercised over persons not parties to the judgment sought to be enforced. An illustration to the contrary is found in that class of cases of which Krippendorf v. Hyde, 110 U. S. 276, S. C. 4 SUP. CT. REP. 27, is an example.

The question is whether the respondents, to whom the writ is addressed, have the legal duty to perform, which is required of them, and whether the relator has a legal right to its performance from them, by virtue of the judgment he has already obtained. If so, then they are, as here, the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty of providing for its satisfaction. They are not strangers to it, as being new parties, on whom an original obligation is sought to be charged, but are bound by it, as it stands, without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment.

It is next objected that the trustee of Oswego township is a necessary party in the mandamus, as the officer charged by law with the duty of levying and collecting the tax for the payment of judgments against it, or at least whose concurrence in the levy is made necessary to the valid action of the county commissioners. The statutes of Kansas which govern this question were considered by this court in the case of Cherokee Co. Com'rs v. Wilson, 109 U. S. 621; S. C. 3 SUP. CT. REP. 352. It was there held to be the duty of the county commissioners, when the office of township trustee was vacant, to levy the tax upon the township property for the payment of township debts, under the general law regulating the subject. In the present case it does not appear that there was no trustee of the township who could act. But we are of opinion that in regard to bonds issued for railroad purposes, and to judgments rendered thereon, for principal or interest, as in the present case, the concurrence of the trustee of the township is not necessary to the levy of the tax...