officers, mandamus will be refused.1 Before a subscription in aid of a railroad is actually made, the question of levying a tax to pay such subscription, is wholly between the county and its officers. Neither the railroad nor its assignee, can claim a right to interfere by mandamus or in any other way."

On the hearing of a mandamus no question can be raised as to the validity of the bond or other indebtedness which has been reduced to a judgment; the judgment is conclusive of all defenses as to the va lidity or amount of the debt.

When it is the duty of the supervisors to make a levy for a. specific claim, and they fail to make such levy at the regular annual meeting, the only time fixed by law for their making a levy, they will be compelled to meet again, or if their term of office has expired,. their successors in office may be required to meet and make the levy.* Does the fund raised by a levy made in pursuance to a mandamus. by a creditor, go into the general treasury of the corporation? He is entitled to have such fund set apart as a special fund to be applied to his debt. The function of the writ is not only to command the levy to be made, but to be made and applied to the payment of the claim of the creditor."

In some of the States there are statutory remedies to enforce the payment of debts by municipal corporations, as in Pennsylvania, where the creditor, having obtained judgment, is entitled to a mandamus execution, that is, a writ directed to the treasurer, commanding him to pay the judgment out of any funds in the treasury not appropriated. A payment under this writ is a valid exoneration of the treasurer.

In Wisconsin, judgments against municipal corporations are not enforced by execution, but the amount is directed to be placed on the roll at the next levy of taxes. A failure to perform this duty will be enforced by mandamus, at the instance of the judgment creditor. So if debt is payable out of a particular fund, it will be enforced by mandamus.8

2

1 State v. Putnam, 19 Ohio, 415; Benbow v. Iowa City, 7 Wall. 315.

Sankey v. Terre Haute R. R. Co. 42 Ind. 402.

3 The Mayor v. Lord, 9 Wall. 409.

4 People v. Supervisors, 8 N. Y. 350.

Coy v. Lyons, 17 Iowa, 1; Galena v. Amy, 5 Wall. 705. See also, Loute . Allegheny City, 10 Pittsburg Leg. Jour. 241; Vance ". City of Little Rock, 3 Cent. Law Jour. 338, 339.

Monaghan v. Philadelphia, 28 Penn. St. 207.

Crane v. Fond du Lac, 16 Wisc. 196; State v. Milwaukee, 20 Wisc. 87; overruling 16 Wisc. 196.

* Illinois State Hospital v. Higgins, 15 Ill. 185.

Where the mandamus is against municipal officers, and their term of office expires by death, limitation, or resignation, the proceedings do not abate, but their successors must obey the writ.' While it is true that the remedy is against the officer and not the individual, yet the successor of an officer against whom a mandamus has issued, is entitled to have notice of the writ before he can be made liable in proceedings for contempt in disobeying the writ.?

The mandamus must be to the proper officers of the corporation, directing them to levy the tax. The court cannot appoint its marshal, or other officer, a commissioner, and direct him to levy and collect the tax. The case in which a marshal was appointed to perform such duties, was one in which it was done under the authority of a statute of Iowa, on the subject of mandamus.

3

Courts of equity have no authority to compel the levy of a tax,' and even where it was alleged that the city officials employed various devices, such as resigning when the writ of mandamus issued, to evade the levy and collection of the tax ordered; also, that the legislature had passed acts intended to aid the city in evading the payment of its debts, a bill claiming that the corporate authorities are trustees for the benefit of the creditors of the city, and that the property of the citizen is a trust fund for the payment of its debts, and asking that the taxable property of the citizens be made subject to the payment of the plaintiff's judgments against the city, was dismissed. "The plaintiff had a remedy at law, the difficulty was in the execution of the remedy. The distinction between the want of a remedy, and the inability to obtain the fruits of a remedy, is very broad." The claim to relief confounds the two things. Another ground of the decision was, that this bill proposed that the property of private citizens should be taken to pay a debt, without giving them the opportunity of being heard. In a subsequent case it was claimed that the creditors of a municipal corporation had a lien upon all the taxable property within the limits of the corporation, and that equity would enforce the lien. This idea was repudiated, and the doctrine was reaffirmed, that the

'Bassett v. Barbin, 11 La. Ann. 672; Maddox v. Graham, 2 Met. (Ky.) 56; Soutter v. Madison, 15 Wisc. 30.

The Secretary v. McGarrahan, 9 Wall. 313; State v. Gates, 22 Wisc. 210; Beasely v. Lamkin, 1 Idaho, 48.

Supervisors v. Rogers, 7 Wall. 175; explained in Rees ". City of Watertown, 19 Wall. 117. Judge Dillon doubts the construction given to the Iowa statutes. South. Law Rev. Oct. 1876, p. 496.

4 Walkely v. Muscatine, 6 Wall. 481.

Rees v. City of Watertown, 19 Wall. 117.

6 Hunt, J., 19 Wall. 124.

fact that the remedy provided by law did not afford complete relief gave no jurisdiction to a court of equity.1

The doctrine that the private property of the citizen is not liable for the debts of the city in which he lives, would seem on principle to be clear, yet the contrary opinion is held in Massachusetts. In an opinion given by the solicitor of Boston, approved by Daniel Webster, it is said that the private estates of citizens of cities and towns in that State, are liable to be taken on execution for the debts of the cities or towns lawfully contracted. This opinion was given in 1858, and was approved by the city solicitor again in 1869.2 This must be by virtue of some statute of the State, but it may be well doubted if the legislature has the power to enact such a law. It is the duty of the citizen to contribute his due proportion of the expenses of conducting the local government, to bear his share of the burden, but should his property be taken for a debt of the city, it would be very much like taking private property for public purposes without due compensation.

If the supervisors or other officers whose duty it is to levy a tax to pay a debt, refuse to do so, they are liable in a personal action to the creditor, to the extent of the injury arising from their conduct.3 There is some diversity of opinion as to the measure of the damages, the Supreme Court of the United States holding that the creditor is only entitled to nominal damages, if the taxable property still remains liable to the creditor and the right to relief is still in force, as the levy may be made the following year, and the damage sustained would be only nominal, while in New York, the party is entitled to damages to the extent of his claim where the refusal is willful.5

Where the power of a board of supervisors is limited to levying a tax of twenty-five mills on the dollar for all purposes, it is a good return to a mandamus to levy a tax to pay a debt, that they have exhausted their taxing power. It is not supposed that this doctrine would apply to bonds issued under a special act authorizing the levy of a tax for their payment. And where a mandamus has been issued by the Circuit Court of the United States, to the officers of a corpo

ness.

1 Heine". Levee Commissioners, 19 Wall. 655; Horner v. Coffey, 25 Miss. 434.

* See Atlantic Monthly, Dec. 1876, article by Charles Hale, on Municipal Indebted

3 Amy v. The Supervisors, 11 Wall. 138.

Dow v. Humbert et al. 13 Alb. Law Jour. 147, October term, 1875, Clifford, J., dissenting.

Hover v. Barkhooff, 44 N. Y. 113; Clark v. Miller, 54 N. Y. 528.

Beard v. Supervisors of Lee Co. 51 Miss. 542.

ration, commanding them to make a levy to pay a judgment, a State court will not restrain the officers, because it is alleged that the tax levied to pay the judgment, together with the tax for ordinary expenses, will exceed the limit fixed by law for the levy of taxes by the corporation. It will presume that the Circuit Court acted correctly in issuing the mandamus.

1 Vance v. Little Rock, 3 Cent. Law Jour. 338, 339.

CHAPTER XXII.

LOCAL ASSESSMENTS.

§ 145. When made-The Nature of, under Taxing PowerEffect of Constitutional Provisions on. In the opening of streets, the grading and paving of streets, the construction of sewers, the laying of water pipes in cities, and in the construction of drains and levees in agricultural districts, the expense of such works is very generally defrayed, not by a general tax on the whole State, or even on the whole of the political subdivision in which the works are constructed, but by a tax on all the real estate in a smaller district, created by the legislature as a taxing district. The tax thus laid is called an assessment, or more generally a local assessment. It is made upon the real estate in the designated district which is benefited by the public improvements.

The power of the legislature thus to create a taxing district smaller than the ordinary subdivisions of the State into counties or cities was first questioned in New York,' where it was held that the assessment was an exercise of the taxing power, exacting from the owners of the real estate no more than their just share of contribution to the public burden created by the improvement; that the power to apportion the tax, like the power to impose it, was without limit where there is no constitutional limitation; that the legislature in imposing this tax on such a district, was but exercising its discretion in the apportionment of the tax in a manner similar to other local taxation. It is the same principle that induces the legislature to impose on the property of a county a tax for its local government, and not on the whole State; or on a town or school district for its local purposes, and not on the whole county. So where the expense of the construction of turnpikes and bridges is reimbursed in tolls by this means, those who reap the benefit from the expenditure are made to contribute to the burden created by it.

The doctrine that the legislature in the exercise of its discretion may impose the whole or a part of the expense of a public improve

1 The People v. Mayor of Brooklyn, 4 N. Y. 420, decided April, 1851.