No. 17. Original.

149 U.S. 164 (1893)

In re TYLER, Petitioner.

Supreme Court of United States.

Decided April 24, 1893.

Attorney(s) appearing for the Case

Mr. Ira B. Jones, (with whom was Mr. Samuel Lord on the brief,) for the petitioners in all the cases.

Mr. Hugh L. Bond, Jr., (with whom were Mr. Henry Crawford and Mr. J.S. Cothran on the brief,) for the respondents in the cases of Tyler, Gaines and Ryser, petitioners in Nos. 16, 17 and 18.

Mr. D.A. Townsend, Attorney General of the State of South Carolina, filed a brief for all the petitioners.

Mr. Joseph W. Barnwell for the respondent in No. 17, Tyler, petitioner.

Mr. John Randolph Tucker closed for all the petitioners.

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

Unless the order of commitment was utterly void for want of power, this application must be denied. The writ of habeas corpus is not to be used to perform the office of a writ of error or appeal; but when no writ of error or appeal will lie, if a petitioner is imprisoned under a judgment of the Circuit Court, which had no jurisdiction of the person or of the subject matter, or authority to render the judgment complained of, then relief may be accorded. Ex parte Parks, 93 U.S. 18; Ex parte Terry, 128 U.S. 289; Neilsen, Petitioner, 131 U.S. 176. And even if the contention were well founded, which is not at all to be conceded, that under the fifth section of the Judiciary Act of March 3, 1891, a writ of error might be brought to review such a judgment as that before us, and that thereby our appellate jurisdiction was enlarged, we should still decline to consider the whole record for error merely, but only to ascertain whether the judgment was absolutely void.

The property in question was in the custody of the Circuit Court, in a cause within its jurisdiction, and protected by injunction. The power exercised was the power to protect the property in the custody of the court from invasion, and in order to sustain the receiver's application the ordinary grounds of equity interposition were not required to be set forth. Whether inadequacy of remedy at law in respect of the disputed taxes, or the requisite jurisdictional amount, or diverse citizenship, were shown to exist, was not and could not be matter of inquiry. But it may be observed that diverse citizenship is not material in ancillary and dependent proceedings, where jurisdiction exists over the subject of the litigation; Krippendorf v. Hyde, 110 U.S. 276; Morgan's Co. v. Texas Central Railroad, 137 U.S. 171, 201; that the objection of adequacy of legal remedy as here presented goes to the want of equity and not to want of power; Reynes v. Dumont, 130 U.S. 354; and that an apparent defect of jurisdiction for lack of a matter in controversy of sufficient pecuniary value can be availed of only by appeal or writ of error. In re Sawyer, 124 U.S. 200, 221. In the latter case, the distinction between an absolute want of power and its defective exercise, between cases where the subject matter falls within a class over which equity has jurisdiction and those where it does not, is clearly pointed out and the authorities cited.

No rule is better settled than that when a court has appointed a receiver, his possession is the possession of the court, for the benefit of the parties to the suit and all concerned, and cannot be disturbed without the leave of the court; and that if any person, without leave, intentionally interferes with such possession, he necessarily commits a contempt of court, and is liable to punishment therefor. Wiswall v. Sampson, 14 How. 52; Taylor v. Carryl, 20 How. 583; Davis v. Gray, 16 Wall. 203; Krippendorf v. Hyde, 110 U.S. 276; Barton v. Barbour, 104 U.S. 126; Gumbel v. Pitkin, 124 U.S. 131.

Ordinarily the court will not allow its receiver to be sued touching the property in his charge, nor for any malfeasance of the parties, or others, without its consent; and while the third section of the act of Congress of March 3, 1887, 24 Stat. 552, c. 373, now permits a receiver to be sued without leave, it also provides that "such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice." Neither that, nor the second section, which provides that the receiver shall manage the property "according to the valid laws of the State in which such property shall be situated," restricts the power of the Circuit Courts to preserve property in the custody of the law from external attack.

In this case, instead of issuing an attachment against the petitioner at once for forcibly seizing the rolling stock of this railroad under the circumstances appearing upon the face of the record, the court adopted the course of serving him with a rule to show cause, and with an order restraining him, in the meantime, from interference with the property. The petitioner refused to release the property upon request of the receiver, and persisted in his attempt to hold possession thereof by force in disregard of the order of the court.

The general doctrine that property in the possession of a receiver appointed by a court is in custodia legis, and that unauthorized interference with such possession is punishable as a contempt, is conceded; but it is contended that this salutary rule has no application to the collection of taxes. Undoubtedly property so situated is not thereby rendered exempt from the imposition of taxes by the government within whose jurisdiction the property is, and the lien for taxes is superior to all other liens whatsoever, except judicial costs, when the property is rightfully in the custody of the law, but this does not justify a physical invasion of such custody and a wanton disregard of the orders of the court in respect of it. The maintenance of the system of checks and balances characteristic of republican institutions requires the coordinate departments of government, whether federal or state, to refrain from any infringement of the independence of each other, and the possession of property by the judicial department cannot be arbitrarily encroached upon, save in violation of this fundamental principle.

The levy of a tax warrant, like the levy of an ordinary fieri facias, sequestrates the property to answer the exigency of the writ; but property in the possession of the receiver is already in sequestration, already held in equitable execution, and while the lien for taxes must be recognized and enforced, the orderly administration of justice requires this to be done by and under the sanction of the court. It is the duty of the court to see to it that this is done; and a seizure of the property against its will can only be predicated upon the assumption that the court will fail in the discharge of its duty, an assumption carrying a contempt upon its face.

The acceptance of the rule has been general, and but few decisions were cited on the argument in illustration of its application.

The Court of Appeals of Maryland, in Prince George's County Commissioners v. Clarke, 36 Maryland, 206, 218, stated the question presented to be "whether, after a decree has been passed by a court of equity for the sale of real estate and trustees have been appointed to make such sale, a collector of taxes has the power to seize and sell the same, or any part thereof, for taxes due." And the court thus proceeded: "The decree was passed the 9th of November, 1865. The taxes for which the land was sold were assessed for the years 1866 and 1867, and the collector's sale took place the 29th of September, 1870. The land in the meantime had been sold by the trustees, under the decree in the equity case, but exceptions having been filed to the sale, the question of its ratification was still pending. So that both at the time of the imposition of the taxes and at the time of the collector's sale, the land in question was under the control and jurisdiction of a court of equity. Under these circumstances it was not admissible for a collector to step in, and by a summary distress and sale divest the court of its jurisdiction, and transfer the question of title to another tribunal. His plain and obvious duty was to apply to the court for the payment of the taxes due, and as they had full power, the presumption is, that they would have directed their payment through their agents, the trustees, in a manner that would have occasioned no unnecessary delay, while at the same time the rights of all interested would have been properly protected."

In Greeley v. Provident Savings Bank, 98 Missouri, 458, 460, payment of taxes upon intervention of the tax collector in a case wherein a receiver had been appointed, was resisted upon the ground of lapse of time, and the court said: "The amount of the taxes was undisputed, and the receiver had in his hands funds sufficient to pay them, and we think the order should have been made. It may be conceded that the State did not have an express lien upon the assets that went into the hands of the receiver, but it had a right paramount to other creditors to be paid out of those assets, ... a right which it could have enforced through its revenue officers by the summary process of distress, ... but for the fact that the property and assets of its debtor had passed into the custody of its courts; whose duty it was in the administration and distribution of those assets to respect that paramount right, upon the untrammelled exercise of which depends the power to protect the very fund being distributed, and to maintain the existence of the tribunal engaged in distributing it; and to make no order for the distribution of assets in custodia legis except in subordination to that right. The ordinary revenue officers of the State being deprived of the ordinary means of securing the State's revenue from the fund in the custody of the court, the duty devolved upon the court to be satisfied, and upon the receiver to see, that the taxes due the State were paid before the estate was distributed to other creditors; and we can conceive of no scheme of administration that the court could properly adopt by which the State's demand could be reduced to the level of an ordinary debt, and be cut off unless presented to the court for allowance within a given time." And see Central Trust Co. v. N.Y. & Northern Railroad, 110 N.Y. 250.

County of Yuba v. Adams, 7 California, 35, 37, was also a case of intervention, and the view of the court was thus expressed: "The levy of the tax gave to the intervenor a judgment and lien on the property assessed, having the force and effect of an execution, which might be enforced in the same manner as other executions... . This lien was not divested by the subsequent proceedings taken by Brumagim and others; but the fund, being in the custody of the law, was not liable to seizure, and the proper remedy was by direct application to the court having the fund in possession."

We do not understand any other or different rule to have obtained in the courts of South Carolina. Indeed, in Hand v. Savannah & Charleston Railroad, 17 S.C. 219, the court, without objection, passed upon a claim for taxes by the State against the property of the railroad company in the hands of the court, and held that it could not be maintained.

If such be the ordinary rule in the state courts, it is quite apparent that it is the only one that can be properly applied where property is in the custody of the courts of the United States. Their officers are the agents of the United States, and, without an order of the court appointing them, they are in duty bound to hold the property and refer those who would interfere with it to the court.

In Georgia v. Atlantic & Gulf Railroad, 3 Woods, 434, an application was made to the Circuit Court of the United States for the Southern District of Georgia on behalf of the State of Georgia for leave to sell the depots, freight houses, passenger houses, and offices of the railroad company, by virtue of a writ of fieri facias which had been levied on the property to enforce the collection of taxes due the State, and the levy suspended by affidavit of illegality filed by the railroad company under a provision of the Code of Georgia to that effect. A receiver had been appointed by the Circuit Court after the levy, and had possession subject to the prior lien of the execution which was being contested. Mr. Justice Bradley, for reasons given, held that the levy was void, and denied the application for leave to proceed with the execution, while he declared that the court would take care that the full right of the State should be preserved so far as it should be brought judicially to the notice of the court.

In Western Union Tel. Co. v. Atl. & Pac. Tel. Co., 7 Bissell, 367, Judge Drummond decided that proceedings in the state court on the part of one of the parties to condemn a right of way of the other, in the exercise of the power of eminent domain, was invalid, because the property was in the possession of the Circuit Court of the United States, through receivers, "and that, being so, no action could take place in the state court affecting it without the consent first obtained of this court."

In Covell v. Heyman, 111 U.S. 176, 182, where the question arose as to the replevin by process from a state court of property held by a United States marshal, which this court held could not be permitted, Mr. Justice Matthews, delivering the opinion, said: "The forbearance which courts of coördinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States, it is something more. It is a principle of right and of law, and, therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they coëxist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void."

This principle is applicable here, for whether the sheriff were armed with a writ from a state court or with a distress warrant from a county treasurer, this property was as much withdrawn from his reach as if it were beyond the territorial limits of the State.

The inevitable conclusion that this must be so, if constitutional principles are to be respected in governmental administration, does not involve interruption in the payment of taxes or the displacement or impairment of the lien therefor, but, on the contrary, it makes it the imperative duty of the court to recognize as paramount, and enforce with promptness and vigor, the just claims of the authorities for the prescribed contributions to state and municipal revenue. And when controversy arises as to the legality of the tax claimed there ought to be no serious difficulty in adjusting such controversy upon proper suggestion. The usual course pursued in such cases is by intervention pro interesse suo, as in the instance of sequestration. 2 Dan. Ch. Pl. & Pr. 4th ed. 1057, 1744; Savannah v. Jesup, 106 U.S. 563, 564. The tax collector is a ministerial officer, Erskine v. Hohnbach, 14 Wall. 613; Stutsman County v. Wallace, 142 U.S. 293; and no reason is perceived why he should not bring his claim to the attention of the court, while, on the other hand, it is clearly the duty of the receiver to do so, if he contends that the taxes are illegal. If found valid, they must be paid; if invalid, the court will so declare, subject to the review of the appellate tribunals.

The courts of the United States have always recognized the importance of leaving the powers of the State in respect to taxation unimpaired. Where the questions involved arise under the state constitution and laws, the decisions of its highest tribunal are accepted as controlling. Where the Constitution and laws of the United States are drawn in question, the courts of the United States must determine the controversy for themselves.

Such was the aspect of this case. The receiver had denied the validity of a distinctive portion of the annual taxes, and under the direction of the court had proceeded by bill to test the question in reference to the levy for the previous fiscal year. Injunction had been granted, issues made up, and the case stood for final hearing. The alleged illegality existed in the levy for the current year. The receiver paid the undisputed taxes, and, upon the forcible intervention of the collectors to compel payment of the balance, brought the controverted point again to the attention of the court in his application for the protection of the property. So far as the order before us is concerned, we are not called upon to review the grounds upon which the assertion of illegality is rested. It has been repeatedly and uniformly held by this court that in a proper case for equity interposition an injunction will lie to restrain the seizure of property in the collection of taxes imposed in contravention of the Constitution of the United States. Osborn v. Bank of the United States, 9 Wheat. 738; Dodge v. Woolsey, 18 How. 331; Allen v. Baltimore & Ohio Railroad, 114 U.S. 311; In re Ayers, 123 U.S. 443; Shelton v. Platt, 139 U.S. 591. Whether or not the particular case is one calling for that measure of relief, it is for the Circuit Court to determine in the first instance, and its action cannot be treated as a nullity.

It is said that any restraint upon or correction of unjust and illegal assessment and taxation by judicial interposition is inconsistent with the revenue laws of South Carolina, which only permit payment under protest and recovery back at law, and our attention is called to statutory provisions forbidding the courts to interfere with the collection of taxes by any writ, process or order, and to various decisions thereunder. In State v. County Treasurer, 4 S.C. 520, the subject was considered whether the legislature was precluded by the state constitution, prescribing the jurisdiction of the Circuit Courts, from taking away the remedy by prohibition commonly resorted to in the case of illegal taxation, and it was held that it was not, a vigorous dissenting opinion being delivered by Chief Justice Moses, who said (p. 539): "The power to tax is the most extensive and unlimited of all the powers which a legislative body can exert. It is without restraint, except by constitutional limitations. To tie up the hand that can alone resist its unlawful encroachments would not only render uncertain the tenure by which the citizen holds his property, but would make it tributary to the unrestrained demands of the legislature."

In State v. Gaillard, 11 S.C. 309, application was made to the court for a writ of mandamus, directed to the county treasurer, commanding him to receive bills of the Bank of South Carolina for taxes, and the writ was refused. Mr. Justice McIver concurred on the ground that the constitutionality of the prohibitory act had been settled in the case of State v. County Treasurer, just cited.

In Chamblee v. Tribble, 23 S.C. 70, the action was brought to enjoin the county treasurer from collecting certain taxes for railroad purposes. The constitutionality of these provisions was again adjudged, Mr. Justice McIver concurring as before, solely on the ground of stare decisis, while Mr. Justice McGowan dissented.

In Bank v. Cromer, 35 S.C. 213, the court granted a mandamus to correct an assessment, and held that the statute did not prohibit the courts from exercising proper control over officers charged with the listing and assessment of property for the purpose of taxation when proceeding contrary to law.

This was followed by the passage of the act of December 24, 1892, providing that the assessment of property for taxation should be deemed and held to be a step in the collection of taxes, and inhibiting interference by mandamus, summary process or any other proceeding, with official action in respect of assessments.

Manifestly the object of this legislation was to confine the remedy of the taxpayer for illegal assessment and taxation, to the payment of taxes under protest, and bringing suit against the county treasurer for recovery back, but all this is nothing to the purpose. The legislature of a State cannot determine the jurisdiction of the courts of the United States, and the action of such courts in according a remedy denied to the courts of a State does not involve a question of power.

The reasonableness of the contention that it would have been wiser, in this instance, for the Circuit Court to have directed the receiver to pay these taxes and bring suits at law in nine different courts against the county treasurers of as many counties, to recover them back, need not be passed upon.

The jurisdiction exercised by the Circuit Court had relation to the property in its custody, and the proceeding before us relates only to its exercise of power in the protection of that property from unauthorized seizure.

The stress of the argument, however, on behalf of the petitioner is placed upon the proposition that this proceeding is void, because it is in fact a suit against the State, and forbidden by the Eleventh Amendment. But this begs the question under consideration. The petitioner was either in contempt or he was not. This property was in the custody of the Circuit Court under possession taken in a cause confessedly within its jurisdiction, and if such possession could not be lawfully interfered with, the petitioner was in contempt. And, apart from the question of the validity of such legislation, we know of no statute of South Carolina that attempts to empower its officers to seize property in the possession of the judicial department of the State, much less in that of the United States.

The object of this petition was, we repeat, to protect the property, but even if it were regarded as a plenary bill in equity properly brought for the purpose of testing the legality of the tax, we ought to add that in our judgment it would not be obnoxious to the objection of being a suit against the State. It is unnecessary to retravel the ground so often traversed by this court in exposition and application of the Eleventh Amendment. The subject was but recently considered in Pennoyer v. McConnaughy, 140 U.S. 1, in which Mr. Justice Lamar, delivering the opinion of the court, cites and reviews a large number of cases. The result was correctly stated to be that where a suit is brought against defendants who claim to act as officers of a State and, under color of an unconstitutional statute, commit acts of wrong and injury to the property of the plaintiff, to recover money or property in their hands unlawfully taken by them in behalf of the State; or, for compensation for damages; or, in a proper case, for an injunction to prevent such wrong and injury; or, for a mandamus in a like case to enforce the performance of a plain legal duty, purely ministerial; such suit is not, within the meaning of the amendment, an action against the State.

And while it was conceded that the principle stated by Chief Justice Marshall in the leading case of Osborn v. Bank of the United States, 9 Wheat. 738, that "in all cases where jurisdiction depends on the party, it is the party named in the record," and that "the Eleventh Amendment is limited to those suits in which a State is a party to the record," had been qualified to a certain degree in some of the subsequent decisions of this court; yet it was also rightly declared that the general doctrine there announced, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional statute of the State, when to execute it would be to violate rights and privileges of the complainant that had been guaranteed by the Constitution and would do irreparable damage and injury to him, has never been departed from.

The views expressed in United States v. Lee, 106 U.S. 196; New Hampshire v. Louisiana, 108 U.S. 76; In re Ayers, 123 U.S. 443; Hans v. Louisiana, 134 U.S. 1; McGahey v. Virginia, 135 U.S. 662, and numerous other cases, render further discussion unnecessary.

The levies here were excessive, were made in a large part on property other than that of the defendants in the warrants, and in such a way and on such property as to obstruct the operation of the railroad. No leave of court was sought, and it was known that the legality of the amount unpaid was disputed by the receiver, and that identical taxation had been previously held by the court to be illegal. The sheriff declined upon request to release the property from seizure, or to yield to the order of the court.

Such conduct was not to be tolerated, and the court was possessed of full power to vindicate its dignity and to compel respect to its mandates. Its action to that end is not subject to review upon this application.

The petition for the writ of habeas corpus is


MR. JUSTICE FIELD did not hear the argument and took no part in the consideration of this and the following cases.


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