Thompson v. Allen Co

• Decision Date: 23 November 1885
• Citation: 115 U.S. 550,29 L.Ed. 472,6 S.Ct. 140
• Parties: THOMPSON v. ALLEN CO. and others. 1 Filed
• Court: U.S. Supreme Court

6 S.Ct. 140

115 U.S. 550

29 L.Ed. 472

THOMPSON v. ALLEN CO. and others.¹

Filed November 23, 1885.

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 others in like circumstances, and be required, with the county, 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 judgments, and that the several tax-payers of said county, made defendants, be re- quired 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 judgments, 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 mayor and aldermen had refused to levy a tax for the payment of the judgments 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 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...