Opinion of the Court.

the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important." pp. 116-117.

These propositions are reasserted in a later case of the same term of the court. Heine v. The Levee Commissioners, 19 Wall. 655.

It was, like the present, a bill in chancery to enforce collection of taxes where no officers could be found whose duty could be enforced by mandamus. "There does not," said the court, "appear to be any authority, founded on the recognized principles of a court of equity, on which this bill can be sustained. If sustained at all, it must be on the very broad ground that, because the plaintiff finds himself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men, that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which, in the imperfection of human nature, often admits of no redress. The holder of a corporation bond must, in common with other men, submit to this calamity when the law affords no relief." p. 660.

The court added that the exercise of the power of taxation belonged to the legislature and not to the judiciary, and, in that case, it had delegated the power to the Levee Commissioners. "If that body has ceased to exist, the remedy is in the legislature, either to assess the tax by special statute, or to vest the power in some other tribunal. It certainly is not invested as in the exercise of an original jurisdiction in any Federal court." p. 661. "It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government." Ib. And it cites Walkley v. Muscatine, and Rees v. Watertown, as in point.

Mr. Justice Bradley, who decided this case on the circuit, had there elaborately discussed the whole subject. See Heine v. Levee Commissioners, 1 Woods, 246. This language is re

Opinion of the Court.

peated and approved in State Railroad Tax Case, 92 U. S. 575, 615.

The same principles are laid down in Barkley v. Levee Commissioners, 93 U. S. 258, in which the whole subject is reviewed. It is said there that the power to compel, by mandamus, municipal officers to perform the ministerial duty of levying proper taxes is a distinct power from the levy and collection of taxes by a court of chancery, and "the truth is, that a party situated like petitioner" (where there were no such officers) "is forced to rely on the public faith of the legislature to supply him a proper remedy. The ordinary remedy having failed by the lapse of time and the operation of unavoidable contingencies, it is to be presumed that the legislature will do what is equitable and just, and, in this case, legislative action seems to be absolutely requisite." pp. 265-6.

In the case of Meriwether v. Garrett, 102 U. S. 472, the legislature of Tennessee had repealed the charter of the city of Memphis and abolished the city organization, at a time when there were taxes assessed and uncollected amounting to several millions of dollars, and debts of the city to a much larger amount. Some of these taxes had been levied under compulsion of writs of mandamus from the Circuit Court of the United States. A bill in chancery was filed in that court by some of these creditors praying the appointment of a receiver, who should take charge of all the assets of the city of Memphis, collect these taxes, and pay them over to the creditors, and generally administer the finances of the extinct city as a court of equity might administer the insolvent estate of a dead

man.

The decree of the Circuit Court, granting relief according to the prayer of the bill, was reversed in this court, and the bill dismissed.

Owing to a division in the court no elaborate opinion representing the whole court was given, but the chief justice announced eight propositions, on which the majority were agreed. Of these propositions the following are pertinent here:

"3. The power of taxation is legislative and cannot be exercised otherwise than under the authority of the legislature.

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"4. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to the special requirement of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can only be collected under authority from the legislature. If no such authority exists, the remedy is by appeal to the legislature, which alone can grant relief. Whether taxes levied in obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed by a court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided, as the case does not require it." p. 501.

But though the question was not then decided, and it is urged upon us now, we see no more reason to hold that the collection of taxes already assessed is a function of a court of equity than the levy or assessment of such taxes. A court of law possesses no power to levy taxes. Its power to compel officers who are lawfully appointed for that purpose, in a case where the duty to do so is clear, and is strictly ministerial, rests upon a ground very different from and much narrower than that under which a court of chancery would act in appointing its own officer either to assess or collect such a tax.

In the one case the officers exist, the duty is plain, the plaintiff has a legal right to have these officers perform that duty for his benefit, and the remedy to compel this performance, namely, the writ of mandamus, has been a well known process in the hands of the courts of common law for ages. In the other there exists no officer authorized to levy the tax or to collect it when levied. The power to enforce collection when the tax is levied, or to cause it to be levied by existing officers, is a common-law power, strictly guarded and limited to cases of mere ministerial duty, and is not one of the powers of a court of chancery. It would require in this court, not the compulsory process against some existing officer to make him

Opinion of the Court.

perform a recognized duty, but the appointment by the court of such an officer and a decree directing him what to do.

In the one case, his power proceeds from the law, and he is compelled to exercise it; in the other, it proceeds from the court which first makes its own decree, and makes an officer to enforce it. No such power has ever yet been exercised by a court of chancery. The appointment of its own officer to collect taxes levied by order of a common-law court is as much without authority, as to appoint the same officer to levy and collect the tax. They are parts of the same proceeding, and relate to the same matter. If the common law court can compel the assessment of a tax, it is quite as competent to enforce its collection as a court of chancery. Having jurisdiction ⚫ to compel the assessment, there is no reason why it should stop short, if any further judicial power exists under the law, and turn the case over to a court of equity. Its sheriff or marshal is as well qualified to collect the tax as a receiver appointed by the court of chancery.

The difficulty is that no power exists in either court to fill the vacancy in the office of tax collector; and the case of Lee County Supervisors v. Rogers, 7 Wall. 175, where the laws of the State of Iowa expressly authorized the court to enforce its writ of mandamus by making such appointment, the only case in which it has ever been done, shows that without such legislative authority it cannot be done.

It is the duty of the marshals of the Federal courts and the sheriffs of State courts to levy executions issuing from these courts on the property of defendants, and sell it, to raise money to pay their judgments. Let us suppose that, for some reason or other, the office of marshal or sheriff became vacant for a while. Would that authorize the court of equity of the Federal or State government to appoint a sheriff or marshal? or to appoint a receiver to levy the execution? or, if it had been levied, to sell the property, collect the purchase-money, and pay it to plaintiff? If this cannot be done, if it never has been done, why can it do a much more unjudicial act, by appointing a collector to collect the taxes, or, what is still less appropriate, appointing a receiver, and endow him with that power?

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To appoint a marshal or a sheriff to execute the process of a court to enforce the judgment of that court, is not such a wide departure from the judicial function as to appoint a receiver to collect taxes; but no case has been cited of the exercise of even the former power by the court, much less the appointment, by a court of chancery, of an officer to execute the processes of a court of law. The appointment of special masters or commissioners to make sales under decrees in chancery, is the ordinary mode of that court to enforce its decrees in cases where the court has jurisdiction of the subject matter of the suit.

Not only are the decisions here reviewed of our own court clearly opposed to the exercise of this power by the court of equity, but the decisions of the highest court of the State of Kentucky are equally emphatic. It is the powers derived from the statute law of that State under which alone this tax can be collected. The issue of the bonds on which the judgment was obtained was by virtue of a special statute, and that statute prescribed the mode of levying and collecting this tax.

It enacted that its collection should not be by the sheriff who collected the ordinary taxes for the State and county, but that a special tax collector should be appointed for that purpose by the justices of the County Court who levied the tax. The Court of Appeals, construing this statute, which was in existence when the bonds were issued, holds that no other officers but these can collect the taxes, and has decided, both in reference to this law and the Constitution of the State, that a court of chancery cannot appoint such an officer or exercise this function of tax collector. McLean County Precinct v. Deposit Bank, 81 Ky. 254.

This decision, if not conclusive, is entitled to great weight as construing the statute under which alone this tax can be levied and collected.

These considerations require that the answers to each of the three questions certified to us by the judges of the Circuit Court be in the negative, and that the decree of that court dismissing the bill be

Affirmed.