104 U.S. 604 (____)


Supreme Court of United States.

Attorney(s) appearing for the Case

The case was argued by Mr. John T. Morgan and Mr. James L. Pugh in support of the petition, and by Mr. Samuel F. Rice in opposition thereto.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

The single question we have to consider on this application is, whether the order of the Circuit Court, made on the 21st of November, is sufficient authority to the marshal for the detention of the persons he holds under it; and that question, as is conceded on both sides, depends entirely on the power of that court to require the court of county commissioners to do what its members have been held to be in contempt for not doing. If the command of the peremptory writ of mandamus was in all respects such as the Circuit Court had jurisdiction to make, the proceedings for the contempt are not reviewable here. But if the command was in whole or in part beyond the power of the court, the writ, or so much as was in excess of jurisdiction, was void, and the court had no right in law to punish for any contempt of its unauthorized requirements. Such is the settled rule of decision in this court. Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18; Ex parte Siebold, 100 id. 371; Ex parte Virginia, id. 339.

It is also settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one. In the present case the law made it the duty of the court of county commissioners to levy the tax required to pay the judgment rendered by the Circuit Court. This levy was to be made in the same manner as was required by law for the collection of State and county taxes. Whatever, therefore, the court of county commissioners was bound to do to secure the collection of State and county taxes, the Circuit Court had jurisdiction to require it to do in respect to this special tax. Sect. 8 also made it the duty of the county commissioners to require the tax-collector to collect the tax; and for that purpose they were invested with all the powers, privileges, and rights, and bound by the same duty of proceeding against tax-collectors and their sureties as were vested in, granted to, or imposed upon the auditor of public accounts, for the amount of taxes not assessed, collected, and paid over, or misapplied. The commissioners had no authority to collect the tax. That duty was, by sect. 9, put on the tax-collector, who was invested with all the rights and remedies and bound by all the duties he had by law for the collection of State and county taxes.

The court of county commissioners, while called a "court," is in fact the board of officers through whom the affairs of the county are managed. The duties of this board, at least so far as this case is concerned, are administrative, not judicial. The county is a body corporate, and the court its governing body. The judge of probate is, ex officio, a member of this body. In performing his duties in that capacity he acts not as a judge of probate, but as county commissioner. The mandamus went against him in this case as commissioner, not as judge. No question arises here as to the power of the courts of the United States to imprison a judge of a State court for what he does, or omits to do, in his judicial capacity. As commissioner, this probate judge was amenable to the authorized process of the courts of the United States in the same manner and to the same extent that his associates were.

The laws of Alabama provide for a tax-assessor, a court of county commissioners, a tax-collector, and a county treasurer. The services of all these officers are required in the levy, collection, and disbursement of taxes. The assessor lists the taxable property in the county, and values it for taxation. His list, when made out, constitutes the assessment; and he enters it in a book, called the assessment-book, which, when completed, he delivers to the probate judge. It is then examined by the probate judge, the county commissioners, county treasurer, and clerk of the Circuit Court, who constitute a board of equalization, of which the probate judge is, ex efficio, chairman. This board equalizes the assessment, and corrects any errors that may be discovered. When the equalization has been perfected and all the necessary corrections made, the chairman certifies to that effect on the assessor's book, and the assessment thus becomes the basis of taxation in the county for the current year. The court of county commissioners then levy the amount of county taxes required. The taxes thus levied are to be collected by the tax-collector, who is an independent officer, and makes his settlements with the county treasurer and not with the court of county commissioners. He is chargeable with all the taxes levied; but upon his report the commissioners may allow him credit for such as he had been unable to collect and for erroneous assessments.

The peremptory writ of mandamus was served on the 14th of February, 1876. The first regular meeting of the commissioners thereafter was on the second Monday in April, and at an adjourned day in that meeting the order levying the tax was made. On the 4th of March before, an act was passed by the General Assembly of Alabama (Pamph. Laws 1875-76, 93) to the effect that whenever any county of the State should be authorized by law, or required by the judgment of any court, to levy any tax for any special purpose, otherwise than the taxes authorized by the general revenue laws of the State, the tax-collector might execute separate bonds, — one for the collection of the taxes levied under the general laws, and one for the collection of taxes levied for special purposes, or in obedience to the requirements of the judgment of a court. If he should give one of the bonds and fail or refuse to give the other, it was made his duty to proceed to collect the taxes for which he gave the bond, and of the probate judge to notify the governor of his failure to give the other. The governor was then to appoint a special tax-collector for the collection of the taxes for which the regular tax-collector had failed to give bond.

The performance of the duty of the court of county commissioners in respect to the levy of taxes was complete when a valid levy had been made, and all had been done which was necessary to enable the collector to proceed with the collection. The duty to collect rested entirely on the collector. He accounted for his collections to the treasurer, who alone was the custodian of the moneys of the county, and paid them out to the parties entitled thereto, on proper vouchers. If the collector failed to perform his duty, he could be compelled by mandamus to do what was required of him by law; but it is nowhere made the duty of the court of county commissioners to institute any such proceeding. As the duty of collection was one the tax-collector owed to the judgment creditor as well as the commissioners, we see no reason why the creditor could not himself apply for the necessary writ. If the collector made collections which he failed to pay over, he and his sureties could be proceeded against summarily for the moneys in his hands. So, too, if he failed by his own fault or neglect to make his collections, he and his sureties would undoubtedly be liable to an action on that account; but we have been referred to no statute which made it the official duty of the court of county commissioners or the auditor of public accounts to bring such an action. Under the law as it stood when the bonds sued on were issued, the auditor could obtain a summary judgment for certain penalties imposed by law upon a tax-collector for the non-performance of his duties, but it was not made his absolute duty to institute the necessary proceedings for that purpose. And, besides, the writ in this case does not require the commissioners to do any such thing.

We proceed now to the consideration of the return of the commissioners to the rule upon them to show cause why they should not be attached for disregarding the writ. Their statements in the return have not been controverted, and are consequently to be taken as true. While the return to the mandamus itself was quashed, the return to the rule stands in the place of a return to the writ for all the purposes of this proceeding. The command of the writ was that the commissioners levy, assess, and cause to be collected the necessary tax. They return that they did levy the tax and order its collection by the tax-collector. It is true that while the writ ordered the tax to be levied on the real and personal property in the county, the levy as ordered was on the real and personal property of the county. Clearly there can be no difference between what was done and what was ordered to be done. A tax was levied, and that implies a levy on property which was in law taxable. The property belonging to the county was exempt. It was so expressly provided by law. Pamph. Laws 1868, p. 298, sect. 3; id. 1875-76, p. 44, sect. 2, par. 2. Consequently the return that a tax had been levied, which the tax-collector was directed to collect, necessarily implied that the levy was made on the taxable property in the county, and the Circuit Court could not have understood otherwise. It is, then, to be taken as a fact that the levy which was commanded was actually made, and on the proper assessment. It follows, therefore, that the fine, for the non-payment of which the commissioners are now held in custody, must have been imposed because they failed to cause the tax which was levied to be collected. The orders themselves indicate as much on their face, for in the first the sentence was delayed after the commissioners were adjudged to be in contempt, to give them time to pay the judgment; and in the second, the fine is to be remitted and the contempt purged if the judgment shall be paid.

The case, then, clearly presents itself to us a proceeding against the commissioners for contempt in not causing the tax to be collected after they had done all they were required to do to charge the tax-collector with the duty of making the collection. This we cannot but think was beyond the jurisdiction of the Circuit Court. The duty of the commissioners in respect to the collection of the tax is performed when they have done all that is necessary to authorize a qualified tax-collector to enter upon his work under the law. The original act of 1868 made it the duty of the collector of general taxes to collect the special tax as he did the others. If the act of 1876, which permitted the regularly elected collector to disqualify himself from collecting the special tax by not giving the new bond, was unconstitutional as to Dix & Co.'s coupons, which the Supreme Court of the State is reported to have decided recently in the case of Edwards v. Williamson, the judgment creditors might, by proceedings in mandamus against him, have required that he make the collection, notwithstanding the change in the law; but we are referred to no statute which makes it the duty of the court of county commissioners to test that question in that way or any other. As the law stood on its face the commissioners and the probate judge had performed their duty when the governor was informed, in the proper way, of the failure of the tax-collector to give his bond for the collection of the special tax. Whatever it is within the power of the creditor to compel the tax-collector to do without the intervention of the court of commissioners, the commissioners are not required by the writ against them to do. Their whole duty in respect to the collection of the tax is performed when they have so far set the machinery of collection in motion that others are required to keep it going. Their obligations in this respect end where those of another public officer begin. They cannot be required by mandamus to compel another officer to do his duty, if, without their intervention, the moving party can himself accomplish the same result. It is true that, under sect. 12, general powers are conferred on the commissioners to carry out the provisions of the bonding act; but this does not change the rule of their liability to the bondholder in the particular now under consideration. The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no other remedy. As a necessary consequence the writ must issue directly against him whose duty it is to do the thing which the parties seek to have done; for, as was said in Reg. v. Mayor of Derby (2 Salk. 436), "it is absurd that the writ should be directed to one person to command another." The question here is, whether it was the duty of the tax-collector under the law to collect the special tax which the commissioners had levied. That question the creditor could have had determined in a direct proceeding against the collector, without the help of the commissioners. It follows, that if the command of the writ against the commissioners was what the Circuit Court has construed it to be, it was in excess of the jurisdiction of the court, and consequently void. If the command of the writ was in excess of jurisdiction, so necessarily were the proceedings for contempt in not obeying. We are led, therefore, to the conclusion that the order of the court under which the marshal holds the petitioners in custody was a nullity, and that a writ of habeas corpus should issue as prayed for, unless the parties are willing that an order of discharge shall be entered without further proceedings.

It is consequently

So ordered.

NOTE. — Ex parte Alabama was argued at the same time and by the same counsel as the preceding case, and the writ of habeas corpus prayed for was refused, as the relief thereby sought could be had under that case.


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