all persons in the district, or as many as see fit, are entitled to the relief. The courts of this State follow those of New York, claiming that where there is a failure of public duty, the public should be represented by the county attorney or the attorney general, but intimating that if these officers should fail to perform their duties, the courts would either compel them to proceed, or permit others to act in the name of the State, so that justice may not fail.2

In a late case in Illinois, while affirming the general doctrine that a number of persons may file a bill to test the validity of a law, yet it is said that one person has no right to file such a bill for himself and others similarly situated, unless there is some privity between them, such as agent or trustee.

8

A bill was filed by a tax-payer for himself and others similarly situated in the town of A., alleging that the assessors of that town. assessed property at its full cash value, while other assessors in other towns of the county of O. assessed property at from one-fifth to onethird of its cash value, thus making the town of A. bear one-half of the whole assessment of the county, while the relative value was only one-fourth of the whole county; that the board of supervisors corruptly and fraudulently so made out the assessment as to make the town of A. bear 38 per cent. of the whole county tax, when it ought only to be 20 per cent.; and that the town of A. was thus required to pay $10,000 more than its share of the State and county taxes for the year. The court held that the powers were quasi legislative, and that it could no more interfere with the action of the supervisors as to the matter, than it could with a statute corruptly passed, and that for all errors and irregularities in their action there was a remedy at law. If such a case does not entitle a tax-payer to relief, in Wisconsin, the tax-payers need a statute similar to that in New York.

In New Jersey, the remedy, where there is a want of power in the municipal officers to levy the tax, is by certiorari, and under that writ the whole assessment may be declared void and set aside. But when such action will be taken is a matter of discretion. The court may refuse to take such action from a regard to the convenience of the public, and it would seem that it may set aside an assessment even after an act of the legislature making it valid, if of opinion that the latter act is void.6

1 Bridge Co. v. Wyandotte, 10 Kansas, 326; Boffet v. Dresher, 10 Kansas, 9; Hudson v. Co. Com'rs, 12 Kansas, 140.

2 Brewer, J., 10 Kansas, 15.

4 West v. Ballard, 32 Wisc. 168.

3 Du Page Co. v. Jenks, 65 Ill. 275.

5 State v. Bergen, 34 N. J. Law, 438; State v. Kingsland, 23 N. J. Law, 83, 88; State

v. Town of Union, 4 Vroom, 350.

6 State v. Apgar, 31 N. J. Law, 358.

§ 144. Method of Compelling Payment of a Municipal Debt. The corporation may be sued and judgment obtained, and an execution may issue against the goods and chattels of such corporation. But such a course usually is a very inefficient remedy, because of the doctrine that the property held by municipal corporations for public purposes is not subject to levy and sale on execution, such property being devoted to specific public uses, in the same manner as similar property in the State government. To allow such property to be sold would be destructive of the local government, which is but a part of the State exercising certain powers delegated to it for the more convenient administration of the affairs of the State. The same principle applies to the revenues of the city, they not being liable either to seizure or garnishment. In the case last cited, it was held on the same principle of public policy, that the property of a municipal corporation was not liable to be taxed by the federal government, and that public property used for governmental purposes cannot be diverted from the use to which it has been appropriated to defray the ordinary expenses of the local government.

Where there is no plain and adequate remedy for the creditor, the courts of common law will issue a mandamus to the officers of the corporation, who are invested with the power of levying taxes, directing them to levy a tax sufficient to pay the debt of the creditor. If the debt be an ordinary debt, one as to which there is no special provision made by law, it must be first reduced to a judgment by an action at law, and it must also appear that there are no effects subject to levy, and no funds in the treasury which the creditor can control for the payment of his debt. If there are effects that can be levied. on, or funds that the creditor by any process can compel the officers to apply to his debt, he has a plain and adequate remedy, and the mandamus will be refused. The writ issues only to enforce a clear legal right. The revenues of a municipal corporation, raised by taxation, are the source from which the creditor expects payment, and the payment is usually made by the officers of the corporation in the discharge of their duties. The creditor must show that he is a creditor by judg

1 Darlington v. Mayor, &c. 31 N. Y. 164, 193; Chicago v. Halsey, 25 Ill. 595.

2 Erie v. Knapp, 29 Penn. St. 173; McDougall v. Supervisors, 4 Minn. 184; Burnham v. Fond du Lac, 15 Wisc. 193; Truebel v. Colburn, 64 Ill. 376; Clark v. Lee's Assignee, 12 Alb. L. Jour. 391; United States v. Balt. & Ohio R. R. Co. 17 Wall. 322.

3 Coy v. Lyons, 17 Iowa, 1; State v. Clay, 46 Mo. 231; People v. Clark, 50 Ill. 213. Frank v. San Francisco, 21 Cal. 668; Olney v. Clark, 50 Ill. 453; Schaffer v. Cadwaller, 36 Penn. St. 126; Supervisors v. United States, 4 Wall. 435; Van Hoffman v. Quincy, 4 Wall. 536; City of Galena v. Amy, 5 Wall. 705; Mayor v. Lord, 9 Wall. 409; Watertown. Cady, 20 Wisc. 501; Walkley v. City of Muscatine, 6 Wall. 481; Boyntown v. Newton, 34 Iowa, 510.

ment, and that he has no means of enforcing payment, before he is entitled to have a levy made for his debt.

In the Circuit Court of the United States this writ is not issued as an independent and original proceeding; it is only issued when ancillary to a jurisdiction already acquired. Jurisdiction cannot be acquired by means of the writ which it is proposed to sue out, and the writ cannot be used to confer a jurisdiction which the court would not have without it. If a debt has been reduced to a judgment in the Circuit Court of the United States, then, having acquired jurisdiction, it may grant the writ as an ancillary proceeding to enforce the judgment. Any State court, however, of general jurisdiction, may issue the writ when the judgment has been obtained in the Circuit Court of the United States; it is issued by the State courts as an original proceeding.

When the mandamus is issued from the Circuit Court of the United States, directed to the State officers, commanding them to levy a tax for the payment of the debt, the action of such officers in obedience to the writ cannot be controlled by the State courts. Riggs, the holder of coupon bonds of Johnson county, Iowa, obtained judgment in the Circuit Court of the United States against the county. The bonds were issued at a period when under the decisions of that State such bonds in aid of railroads were valid. After the rendition of the judgment, the tax-payers of the county filed a bill to restrain the supervisors of the county from levying a tax to pay certain bonds, including those upon which Riggs had obtained judgment, the Supreme Court of Iowa having meanwhile reversed its former decision, and declared such bonds void. The supervisors, in their return to the mandamus nisi, state that they had been enjoined by the State court from levying the tax to pay these bonds. It was decided that the Circuit Court had jurisdiction to issue the writ, and that the State courts were destitute of all power to restrain either the process or the proceedings of the federal courts. An able and earnest dissenting opinion was delivered by Miller, J., in which Chase, C. J., and Greer, J., concurred. This opinion claims that the judiciary act of 1789 only gives to the Supreme Court of the United States authority to issue writs of mandamus "to any courts appointed, or persons holding office under the authority of the United States;" that the sections of

3

Bath Co. v. Amy, 13 Wall. 244, 249; The Secretary v. McGarrahan, 9 Wall. 311; Kendall v. United States, 12 Peters, 584; McClung v. Silliman, 6 Wheat. 601; Mclntire v. Wood, 7 Cranch, 504.

2 Watertown v. Cady, 20 Wisc. 501.

3 Riggs v. Johnson County, 6 Wall. 166. See Vance v. City of Little Rock, 3 Cent. Law Jour. 338.

that act giving jurisdiction to the Circuit Courts do not confer in express terms on these courts the power to issue a mandamus to State officers; and that it is not fair to infer that it was the intention to confer upon an inferior court a power which is not conferred upon the Supreme Court itself. But admitting that the Circuit Court had jurisdiction, the power of the State courts over the State officers is as full and complete as that of the federal courts, and it is a principle of comity recognized by all courts of concurrent jurisdiction, that the court which first obtains jurisdiction shall have the exclusive right to decide the matter in issue, and that any other court when the fact of this priority of jurisdiction is brought to its notice, will proceed no farther. It combats the idea that the jurisdiction of the Circuit Court of the United States commenced from the time of the initiation of the suit to obtain judgment, claiming that the first suit in reference to the question of the power or duty of the supervisors to levy the tax was in the State court. No such questions were involved in the suit to obtain judgment.1

The decision of the court in Riggs v. Johnson County has been affirmed in a number of cases in the Supreme Court of the United States, and even by the Supreme Court of Iowa. The case last cited was one in which officers of the State, who had been enjoined by the State courts from levying a tax, were imprisoned by the Circuit Court of the United States for contempt in refusing to obey a writ of mandamus directing them to make the levy of the tax, and they sought relief by habeas corpus in the State court unsuccessfully.

There is an exception to the rule that judgment must be first obtained before an application for a mandamus will be entertained. It is in that class of cases where by the statute creating the debt, as in the case of bonds in aid of railroads, it is made the duty of certain officers to levy a tax for the purpose of paying such bonds. Here there is a clear legal duty upon the officers to make the levy, and there is no other remedy for a failure to perform such duty but a mandamus, and there is no necessity for a judgment to ascertain the amount due.'

16 Wall. 200, 205.

2 Supervisors v. Durant, 9 Wall. 415; The Mayor v. Lord, 9 Wall. 409; Amy v. The Supervisors, 11 Wall. 136.

3 Ex parte Holman, 28 Iowa, 88, contains a full discussion of the subject, on both sides of the question; and see Brooks v. City of Memphis, 3 Cent. Law Jour. 356, where the tax-payers, after a mandamus to collect the tax, were considered in contempt, because they applied to the State court for relief.

4 Bd. of Com'rs of Knox Co. v. Aspinwall, 24 How. 376; State v. Com'rs, 6 Ohio, 280 ; State v. Davenport, 12 Iowa, 335; Stevenson v. Township of Summit, 35 Iowa, 462; Flagg v. Palmyra, 33 Mo. 440; Commonwealth v. Allegheny, 37 Penn. St. 277; Commonwealth v. Pittsburg, 34 Penn. St. 496; Newman v. Justices, 5 Sneed, 695; Justices of Clark Co.

The principle extends to orders given by school boards and other municipal officers authorized by law to give such orders on the treasurer of the corporation. But even in these cases, if there is a doubt suggested as to the validity of the bonds or other indebtedness, the party will be required to first establish his claim by a judgment.2

A question is often raised as to the nature of the power conferred on the local officers in levying a tax, whether the act merely permits them to exercise such power, or makes it their duty to levy the tax. Such language as "the board of supervisors, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax," &c., is peremptory, and they may be compelled to exercise the power, when a judgment has been obtained on county bonds, and there are no funds in the treasury to pay them. Or, the city council "may, if it believe that the public good and the best interests of the city require it, levy a tax to pay its funded debt," was considered, under similar circumstances, sufficient to create a duty which would be enforced by mandamus. The rule governing such cases is, that whenever the public interest, or individual rights, call for the exercise of power vested in public officers, the language, though permissive in form, is in fact peremptory. The power is given, not for the benefit of the officers, but for that of the public or individuals.

Where county commissioners have made a levy to pay railroad bonds, which has been collected and paid into the hands of the treasurer, and the commissioners order the treasurer not to pay the bonds, in such a case a mandamus will not issue against the treasurer. The commissioners have no authority to give such orders, and the treasurer is liable on his bond for a failure to perform his duties, there is a plain remedy at law."

If there be no unreasonable delay in making the levy by the proper

v. Turnpike Co. 11 B. Monr. 154; Maddox v. Graham, 2 Metc. (Ky.) 56; State v. Milwaukee, 20 Wis. 87: People v. Brown, 55 N. Y. 180; Columbia Co. v. King, 13 Fla. 451; Pegram v. Co. Com'rs, 64 N. C. 557; Wilson v. Co. Com'rs, Ib. 218; Brown v. Crego, 32 Iowa, 498.

1 Wilkinson v. Cheatham, 42 Ga. 258; Rodman v. Justices of Larue, 3 Bush, 144; Robinson v. Butte Co. 43 Cal. 353; Dayton v. Rounds, 27 Mich. 82.

2

? Lexington v. Milliken, 7 Gray, 280. In this case the selectmen drew an order on the treasurer of the town, which was not paid, but a writ of mandamus was refused, on the ground that it did not appear that the selectmen had authority to draw the order. See also Commonwealth v. Commissioners, 16 Serg. & Rawle, 317.

3 Supervisors v. United States, 4 Wall. 435.

4 City of Galena v. Amy, 5 Wall. 705; People v. Supervisors, 51 N. Y. 401; Clark v. Davenport, 14 Iowa, 494; Commonwealth v. Pittsburg, 34 Penn. St. 496, 513, 517. 5 State v. McCrillis, 4 Kansas, 250.