Bd. of Commissi oners v. Aspinwall, 65 U.S. (24 How.) 376

The Board of Commi ssi oners of Knox County , Plaintiff s

in Error , v . Willi am H. Aspi nw all , Josep h W. Alsop , Henry Chancey , Charles Gould , and Samuel L. M. Bar - low .

Where the commissioners of a county have authority by statute to issue bonds, and are required to levy a tax to pay the interest coupons as they become due, and, having issued such bonds, they neglect or refuse to assess the tax or pay the interest, a writ of mandamus is the proper legal remedy. The Circuit Courts of the United States have authority to issue such writ of

mandamus against the commissioners, where it is necessary, as a remedy for suitors in such court. It is not a sufficient reason for setting aside a peremptory mandamus, that a

previous alternative writ had not issued.

This case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.

The case is stated in the opinion of the court.

It was argued by Mr. Porter for the plaintiffs in error, and Mr. Vinton upon a brief filed by himself, and also one by Mr. Judah, for the defendants.

The principal point in controversy was the power of the Circuit Court, under the 14th section of the Judiciary act, to issue a writ of mandamus in this case. Upon this subject, a portion of the arguments of the counsel can be given.

Mr. Porter said:

If the Circuit Court of the United States has power to issue a, writ of mandamus to enforce the payment of a judgment at law, it derives that power from the provisions of the 14th section of the Judiciary act of 1789.

It is not pretended that there is any other foundation for it.

The words of the section are: “That all the before-men-tioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”

I maintain that the “exercise of jurisdiction,” in any sense in which the writ of mandamus could be called in aid of it, ■was complete in this case upon the rendition of final judgment; that to enforce the payment of that judgment by means of this extraordinary writ would not be “agreeable to the principles and usages of law.” Passing over the fact which appears in the record, that an execution was issued, and a levy actually made, which the party voluntarily abandoned to resort to his writ of mandamus; and conceding1, for the sake of the argument, what the opposing counsel assumes in his brief, that “no execution can be levied on the general property and effects of the county,” I affirm that this state of facts simply presents the ordinary case of a party holding a debt of record which cannot be realized by process of execution. And I deny that it follows that a writ of mandamus in such a case is, in any just sense, “necessary for the exercise of jurisdiction,” or “agreeable to the principles and usages of law.”

The writ of mandamus is the appropriate remedy to enforce the performance of some duty enjoined by law, where there is no other adequate remedy.

The duty imposed by law on the^ board of commissioners of the county of Knox, now sought to be enforced, was a duty to levy a tax for the payment of interest coupons, not judgments of a court of law.

The holders of those coupons had a right to go into the State courts, and enforce the levying of the tax for their pay-, ment, by mandamus; but they elected a different remedy.

They chose to sue in the ordinary form, in the Circuit Court, merged their coupons in a judgment at law, and must rely for the collection of that judgment on the ordinary and usual writs in use for that purpose.

If, upon the failure of these, they may resort to the writ of mandamus to compel the ,payment of their judgment, on the ground that such a writ is necessary to the exercise of jurisdiction, why may it not be used in every case, to compel the payment of judgments which cannot be collected in the usual way? The words of the statute, then, instead of being understood as words restraining the power to issue the writ in aid and furtherance of ordinary remedies only, will become a grant to the Circuit Courts of the power to employ a new and formidable process in all cases where the common writs of execution fail.