Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1878-12-15
MANDAMUS.
Important DecisIon OF Judge EeiskeII.
or the shelby County Circuit
Court, on the Mandamus
Tax Question.
The Prayer or the Petitioner for IA Nan
damus tn Enforce the Levy OF
Tax for the Pay meat or In
terest Coupons Re.


! The Prayer or the Petitioner for "a Nan.
damus tn Enforce the Levy OF
Tax for the Pay meat or In
terest Coupons Re.
fused.
! Yesterday forenoon, Judge G. W. Heiskell
OF the Shelby county circuit court, de
/ livered the following interesting and i'm
| pOrtant legal opinion on the interest coupon
mandamus question. Several new ques-
tions sce discussed and decided with ability
| b. Judge Hai>kell.
Mooles Us. City Of Memphis.
Moore, as relator, filed this petition for
mandamus against the respondent to enforce
the levy OF g tax for the payment to him OF
twenty-iour interest coupons, each tor the
sum oil thirty dollars, detached from two GER
tam bonds issued By the respondent corpora
ton, and which coupons matured at various
dates from the first Monday of January, 1873,
TO the first Monday of July, 1873, but only
two of which matured On the last named date
The petition was fled on the twenty -four
day OF July, 1873, and on the thirtieth day
Of July an alternative mandamus issued re-
turnable TO the Lresent term, requiring an
additional levy of tax to be made for the pay
meut of said coupons. or cause to be shown
against the same. Service of the writ was
made on the respondent August II, 1878.
! At the return term, which Is the present
term, OF the court respondent made no re-
turn to the writ, but suffered default The
statutory duty Of the respondent to levy q tax
to pay this debt is not denied. Relator now
asks a peremptory writ of mandamus
requiring an immediate levy of 4 spe-
cial tax for the purpose, supplemental
to the regular annual levy, By the act of
assembly of March Z, 1877, 1t is required
tIfy the rate of taxation levied by them to
the CLERK of the county court by the fifteenth
day of July of each year, folio wing which
action the tax lists are to be made. No au-
tiOrlty of law is shown for the levy by the
respondent of taxes, at any ether or later
date. Ii is insisted, however, by relator that,
inasmuch as the respondent was by the alter
native writ commanded to levy the necessary
tax at once, or show cause why it had not
done so, and as it has complied with neither
alternative, 1t Is not only in default but also
10 contempt; that, the writ of mandauus be-
| ing an extraordinary remedy, extraordinary
consequences follow such default; and that
the only legal result must be that a peremp-
tory writ be awarded for an immediate
special levy, supplemental to the regular
| levy which Is now In process of collection.
| Respondent, by It's counsel, insists that the
! pere Dtory writ, to which the relatOr Is enti-
| tied, can command no more thaa a special
tax, to be levied at and in connection with
the next regular annual tax levy. The ex-
GE6u1S uOCtIlUe COuIttu6u iDT DS Tue COuESGl
for the relator does not seem to have founda-
ton, either IN principle or authority. Man
dsmus, though formerly prerogatlve writ, and
still running IN the name Of the sovereign, Is
at the present day substantially civil rem
| edy only. ( IL PetersdNrtf Abr., p. 43S; Moses
on Mandalnus, p. l9t; Dillon on MunIc.
| Corps, p. 663; Brewer Us. O'Brien, 2 Car
ter's Indiana R., p. 423.) 7 .ough the pro-
ceedngs in mandamus are usually entitled
in the name of the State on the relation OF
the complaining party, yet such emitting
does not seem essential. II was dispensed
with in Brewer rs. O'Bnen, supra; and also
in the present case, by the choice Of the re-
ator, as appears from his petition. The al
| teratiye writ, 60 far as it is pleading, is IN
the nature of declaration at law. High on
| Ext. Rams., p. 449, 45l, 500 1t would
seem, then, that no other or greater conse,
qnences could follow a failure to make return
to the alternative writ, than such as would
! .-4--sS- 2 fsilnra to plead to a declaration.
| legal rights OF the plaintiff or refator. Fur.
thermofe, m1udamus lies only to enforce a
| clear legal night Burroughs on Taxation, p.
| 81, Cooley On Taxation, p. 523; Moses on
MandauQs, p. is, l24), to which the relator
must satisfy trs cor-t that he is enti-
tied, before the pereiBptory writ
will issue. High On Ext. Rem's, p.
I 55O) The writ cannot go beyond the
( ie6sl obligation of the defendant (Regina rs.
1 Caledoniaa railway company, 16 Adol. and
e., n ~ s., p. Isl. 40 UeaaltY Is visited
upon the corpora'Hn as such, Tor iaiiu.e Ct
its officers to comply with their legal duty
though otherwise, perhaps, as to the ct1cers
personally people gs. Sup -rvisors. 10 Wen
dell, $685.. Judge Dillon says the writ of
nandamus, even where issued by the Federal
cnarts to corporations to compel a levy of taxes,
Will command the proper officers only to dis
charge the legal dnty they owe, under Il 9
charter or statute, to the warrant holder
q Southern Law Review, II. S., p. 49T). Mr..
Justice Strong says: at is very plain that q
mandamus will not be awarded to compel
county officers of State to do any act which
they are not authorized to co by the
laws Of the State from which they
derive their powers. The oRice Of
the writ is not to create duties, but
to compel the discharge of those already ex"
isting." Supervisors rs. The United States,
e Wall, ~ From these authorities it is
evident that neither the d-fault, nCr even
the consent of the respondent corporation,
can enlarge It's statutory duty la TIE prem
1895, any more than lis resistance to the de-
mand OF lts Grcditor could in any wise lessen
such duty. Though il may De, as relator IN
aists, that in point Of fae5 tie respondent did
not complete and certify It's rate Of current
taxation 10 the county authorities until after
the service of the alternative writ in his
cause, and that it might have included this
sum IN its levy, and might have 80 shown by
formal return, yet its failure to do so can
not be allowed to enlarge the present legal
right of the Telator, or the present legal duty
of the respondent. That right and that duty
I2>st be now determined by the court, in
view Of the pcesent legal situation and cir
cumstances OF tos parties and by
them, as SO determined, h...t the
commands of the peremptory writ be
measr-.., Realtors counsel, in support of
mis- demand for spa Sc'at levy additional and
supplemental to the rsgiiia, Wv "' mstIay.,
made, has cited the opinion of Judge r...," ~
IN the United States ex rel. M'Kee vs. Vernon
county, Cent. l.. j. p. III. That case does
not support the doctrine c8ntended for, It
Is tue the learned Jucge there sustains the
practice OF ordering special levy, not, how
ever, In the sense Of a supplemental lew at
an unusual time, but in the sense of few
LOT toe particular purpose, in addition to all
0tners. dis course in such cases, he saws.
Is not TO require a special assessment and
levy at special and arbitrary time, but TO
nave khe tax levied and collected with the
general annual levy" And such was the
Command OF the peremptory writ awarded in
'hai case. This ruling. Judge Dillon saws at
a /, laIer date October, 1876, 2 South. L. Rev.
= .. p. 4s9l, comedies with the doctrine
!hd1 the Federal courts cannot oyerturn or
Interfere with the policy of the State in re-.
spect to the rights or remedies of this class
OF creditors" which doctrine he deduces
from IT, the case of Supervisors vs. United States,
10 w all, supra, where the special lew
at the time Of the regu ar ANIMAL
levy was, under the circumstances of that
case case, denied. In Maryland, In the case of
Elliott VS. levy court, Harris & ]. 3fC1 and
Commissioner Of schools VS. county comm niu
slohers, 70 Md. 44G, the court expressly re-.
fused TO order special and sunnlernept.J
Ivy to be made after the time for he rpg,,iar
levy had elapsed. No case has been cited
where different rule has been enforced OF
recognized. If the respondent cornoration
had failed wholly to discharge its du tot Of
making the annual tax levy, its Officers
might be, by mandamus, compelled to assem-
bic aga for the performance of that duty.
under the authority of people VS. supervisors
. =. $50, and Dillon on Munc. Corps, sec
$50. But taat is not the present case. The
peTemptory writ, to which This -elator is en-
titled, Is writ commanding the performance
6y the respondent corporation of its legal
duty to include this particular debt in its
next annual tax levy.
C. W. HRI5KELL. Judge, etc.