ant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived." But if convinced that the tax is not for a public purpose, the courts will, at the suit of a taxpayer, enjoin its collection or the issue of bonds to be paid out of the proceeds of taxation.82 If the bonds have been already issued, courts will refuse to recognize their validity in a suit to enforce payment, or payment of the interest on them.83 To do this, it is of course necessary for them to declare unconstitutional the act providing for the taxation, and this they will do. They will also declare unconstitutional an act providing for a tax if for any other reason the legislature enacting it did not have the constitutional power to levy such a tax. This was decided by the Supreme Court of the United States in the classic case of McCulloch v. Maryland practically a century ago and since then the power of the courts, both state and federal, to exercise such power has been admitted. The most notable recent exercise of the power was the enjoining of the Farmers' Loan & Trust Co. from paying certain taxes levied under what is known as the Income Tax Law of 1894, on the ground that said law was unconstitutional in so far as it attempted to levy a direct tax without regard to the provision of the Constitution requiring the apportionment of direct

82 Lowell v. City of Boston, 111 Mass. 454.

83 Loan Association v. Topeka, 20 Wall. 655 (U. S.).

84 4 Wheat. 316 (U. S.).

taxes in proportion to the population of the states.85 It was held that taxes which are levied on the income of real estate and of personal property are direct taxes.

87

90. Control of officers by certiorari.—Where officers are empowered to proceed in a summary way or in a mode unknown to the common law, and no other method of revision is specially provided, certiorari will lie.86 It will issue to review the appointment and proceedings of commissioners to value land taken for corporate purposes and to appraise damages by special statutory authority; the laying out of a road under an act incorporating a turnpike company; the acts of commissioners who have passed upon the question of damages to an abutting owner by a change in the grade of a street but have failed to report in his favor.88 It will also lie "in proceedings of a summary character by bodies exercising quasijudicial functions which do not admit of any other remedy for a direct review, clear violations of law in doing those things which are within the jurisdiction of the body to do in a legal manner."89 It will issue to review the actions of inferior tribunals in proceedings against insolvents or fraudulent debtors.90 But as a means of reviewing the proceedings of an inferior tribunal, the statutes of most states have now provided for substituting for it an appeal.

85 Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601.

86 Campbell v. Strong, Fed. Cas. No. 2367b; but see State of Georgia v. Stanton, 6 Wall. 50 (U. S.), LEADING ILLUSTRATIVE CASES.

87 State v. Newark & Pompton Turnpike Co., 2 N. J. L. 318.

88 Stewart v. Hoboken, 57 N. J. L. 330.

89 State v. Lawler, 103 Wis. 460.

90 People v. Daly, 67 Barb. 325 (N. Y.).

91. By habeas corpus.-Where a public officer has the custody of a person by any other authority than the order or sentence of a court having jurisdiction, the right of such officer may be looked into by means of a writ of habeas corpus commanding him to bring the prisoner into the court issuing the writ and show by what authority the prisoner is detained, and if this showing is not satisfactory, he is ordered to release the prisoner. This is a compulsory, not a discretionary, writ. By the fourteenth section of the Judiciary Act of September 24, 1789, it is provided "that either of the justices of the Supreme Court, as well as the judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by color of the authority of the United States, or are committed for trial by some court of the same, or are necessary to be brought into court to testify."

In accordance with this, the federal courts do not interfere with the jurisdiction of the state courts, and the reverse is also true. If, however, a state officer has custody of a prisoner whom the federal and not the state courts have jurisdiction to try, the federal court having jurisdiction will issue a writ of habeas corpus commanding the said state officer to bring the prisoner into the court issuing the writ, and may enforce obedience."91 In the case just cited

91 In re Neagle, 135 U, S. 1; also see In re Sawyer, 124 U. S. 200, LEADING ILLUSTRATIVE Cases.

will be found a review of the amendments of 1833, '42, and '67 to the Judiciary Act of 1789 with regard to the power of the federal court to issue the writ and the causes which led to said amendments. In Abelman v. Booth, 92 the Supreme Court of the United States reversed the decision of the Supreme Court of Wisconsin, holding that one of its judges might by writ of habeas corpus annul the proceedings of a Commissioner of the United States and discharge a prisoner committed by him for an offense against the laws of the United States, and in United States v. Booth, argued with the above, reversed a decision of the same court holding that it might discharge a prisoner by habeas corpus proceedings who had been found guilty and sentenced by a United States District Court. The Supreme Court of the United States, through Chief Justice Taney, says:

"We are sensible that we have extended the examination of these decisions beyond the limits required by any intrinsic difficulty in the questions. But the decisions in question were made by the supreme judicial tribunal of the state; and when a court so elevated in its position has pronounced a judgment which, if it could be maintained, would subvert the very foundations of this government, it seemed to be the duty of this court, when exercising its appellate power, to show plainly the grave errors into which the state court has fallen, and the consequences to which they would inevitably lead. But it can hardly be necessary to point out the errors which followed their mistaken view of the jurisdiction they might lawfully exercise; because, if there was any 92 21 How. 506 (U. S.).

defect of power in the commissioner, or in his mode of proceeding, it was for the tribunals of the United States to revise and correct it, and not for a state court. And as regards the decision of the district court, it had exclusive and final jurisdiction by the laws of the United States; and neither the regularity of its proceedings nor the validity of its sentence could be called in question in any other court, either of a state or the United States, by habeas corpus or any other process.

94

92. Control of officers by mandamus.-As we have already had occasion to notice, the court will by mandamus compel the performance of ministerial duties by public officers. Mandamus will not, however, be issued to compel the performance of an unlawful act, or an act which has become impossible of performance, or to compel the performance of an act forbidden by an injunction of a court of the same state.95 It will issue out of a federal court to compel the performance of an act notwithstanding the fact that it has been forbidden by an injunction issued by a state court.96 As said by the Supreme Court of the United States in the case last cited: "Viewed in any light, therefore, it is obvious that an injunction of a state court is inoperative to control, or in any manner to affect, the process or proceedings of a circuit court, because in their sphere of action the circuit courts are wholly independent of the state tribunals." In this case a mandamus was issued commanding the

93 People v. Fowler, 55 N. Y. 252; also see State ex rel. Carpenter v. Supervisors Town of Beloit, 21 Wis. 282, LEADING ILLUSTRATIVE CASES. 94 County Comrs. v. Jacksonville, 36 Fla. 196.

95 Ohio, etc., Ry. Co. v. Comrs., 7 Ohio St. 278.

96 Riggs v. Johnson County Commissioners, 6 Wall. 166 (U. S.).