New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-12-06
Communicated
linbi ity Gi Municipal COrpOfntlOne.

of counties and cities, fail to provide, elther
from inability or neglect. for the payment
o.: their moneyed obligations tsuch as
bcnds) and refuse, when the terms OF the
contract or the law regulating it call for 1t,
to raise the money by a tax upon the prop
erty OF the citizens subject to the same au-
thori.es, there is p power in the judicial
department Of the government which can
be exerted to enforce the imposition and
colectiO OF a tax upon the property OF the
citizens by the Use of the machinery OF the
courts-that is to say, by the assessment
and collection of the tax by the executive
officers of the courts without the lnterven-
ton Of the regular taxing officers OF the
State, county or city, and without regard TO
tax laws. This impre ssOn is, to some cX-
tent. erroneous. The machinery Of the
courts can only be put in motion tor the
assessment and collection of tax IN those
eases where the law in existence at the time
of en- seriny into the contract authorizes 1t
by express provision.
We have before us late opinion and de.
cree Of the Supreme Court OF the United
States rendered in a ease of this character,
and the time may nor be inopportune to
give publicity TO it. 1t is full exposition
of the law of the equity courts as we'll az
the law courts touching this subject. The
cas-. is entitled Ree> VS.. city of Watertown,
.;.ci.ied at the last term of the Supreme
Court. but not yet reported in the reports
of Mr. Wallace. We find it in the AmeTl'
can Law Times Reports. volume one. page
300, and the following are the facts OF the
case. with extracts from the opinion neces-
sary to an understanding Of it.
The plaintiff alleged himself 20 he the
owner of certain bonds issued by the city
Of Watertown. in the State OF Wisconsin,
to the Watertown and Madison Railroad
Company, and by them sold for their bene'
ft. Judgment was rendered by the United
States District Court for the amount Of the
bonds, and execution was issued thereupon,
which was returned unsatisfed. Plaintiff
| then procured from said court peremptOry
writ Of mandamus directing the city OF
L>Watertown to levy and collect a tax upon
1the taxable property Of the city to pay said
| judgments. but before the writ could be
I
| city council resigned their offices. Subse
| uuently two other writs of maudamus were
| issued, but with similar result. He alleged
| further that in evading the payment OF this
| Judgment the city Of Watertown had been
aided by certain acts of the Legislature OF
the State of Wisconsin. In these cirenm.
| stances the plaintiff filed bill in chancery
!. asking the aid OF the court 10 subject the
| taxable property of the city to the payment
| of his Judgment. alleg ging that the corporate
! authorities are trustees for ;he benefit OF
the creditors Of the city. and the property
of the citizens a trust fund for that purpose,
and that it is the duty Of the court to lay
! hold Of the property and cause 1t to be
! Justly applied, and asks that the marshal OF
the district may be empowered to seize and
sell SO much OF it as may be necessary. and
to pay over to him tho proceeds of the sale.
The court. speaking through Mr. Justice
Hunt, says:
This case :s free from the objections
usually made to recovery upon munich
| pai bonds. 1t is beyond doubt the bonds
l were issued bv the authority of an act OF
the State of Wisconsin. and in the manner
prescribed by the statute. 1t Is not denied
| that the railroad was built and put in ope.
| ration. Upon class OF the detenses inter
! posed in the answer and in the argument it
is not necessary to spend much time. Thus
it is alleged that the city Of Watertown
contains population OF but 1903 inhabl
tants: that the value OF its property ls
asse ssed at but little over Sl,O0O.OO0; that
the debt Of the city is S75O,O0o; that it is
impossible for the city to pay this debt; that
it was expected and provided that the rail-
road company would pay the bonds IN
| question, but the roads have been fOreciosed
and sold: that the city has compromised
and settled portion Of its Indebtedness:
| that it has levied the taxes necessary to
| effect such compromise, and that 1t Is ready
| to compromise all Hutstandin. bonds and
judgments at as high rate els can be col
! lected of the people Of WATERFOWL: that
! there is no law to compel the retention OF
plaintiff took his chance OF its being volun.
tayily done. and that. not being voluntarily
done. there is no violation Ot law.
| These theories are vicious. They are based
uron the idea that refusal TO pay an honest
debt il j.sttiable. because i, woulu distress
the debtor t. pay il. voluntary refusal to
nav an homes. debt is high otfense in a
| commercial community. and is Just cause OF
war between nations. SO far as the defense
rests upon these principles we tind no d't1i
Guilty in oyerruling 1t.
| There ia, however. q grave question OF the
power of the court to grant the reiief asked
for. We are of the opinion that This court
has not the power to direc: . tax 20 be
levied for the payment OF these judgments
The power to impose burdens ana raist
I money is the highest attribute OF sovereign
! ty. and is exercised, first 10 raise money Tor
! public purposes only: and. second. oy the
! power Of legislative authority only. 1t Is a
mower that has not been extended to the
Judiciary. Especially is il hevond the power
| Of fhe federal judiciary to assume the place
! of = State in the exercise of this authority
| at once so delicate and SO important
In relation to the corporation before us
! the objection to the liability OF lnnlVloua
I property for the payment OF corporate
| debt is presented in a specific form. 1t Is
| of a statutory character. BY section nlnf
! Of the defendants charter it is enacted
| Nor shall any real or personal property o
| anv inhabitant of said city, or any indl
| vidual or coporation, be levied upon or sold
! by virtue of any execution issued to satisfy
| or collect any debt. obligation or con'rac
Of said city"
the power Of taxation is conceded mol
20 be applicable. and the power OF the e"ur
is invoked 20 collect the money. as upon ~
execution to satisfy contract ar oDllsaii"i
Of the city, this section Is directly appi!
cable. and tOrbiGs the proceeding. ihc
4 process cr order asked for /. III :he na'lf
of an execution: the property proposed u
| be sold Is that OF an inhabi'aEt ~; the Ci':
the purpose to which it i. - To- applied Is
the satisfaction OF debt ~ tha ci;s. The
} proposed remedy is in direct v:oa,:on " &
statue in existence when the deb. was IN
Cured. and made known ~ III. creditor
with the same solenlnity as IL. st.'u'.
| which gave power 10 contract the debt. 4