To recapitulate and condense the foregoing provisions, it will be found that commissioners have authority as follows: (1) To takl' bail, affidavits, oaths, recognizances, affirmatiells, depositions de bene esse acknowledgments in United States courts and under the laws of the United States and to compel witnesses'to answer letters rogatory.' (2) To exercise the powtlrs of justices of the pt'acein arresting and holding to baUin criminal causes under the laws of the United States. (3) To summon masters of vessels in cases of mariners' wages,to arrest deserting seamen and to take boJ\ds and stipulations in admiralty causes. (4) To enforce extradition treaties and the awards of foreign consuls. (5) To issue in internal trade-mark, and counterfeit money cases. (6) To discharge defendants imprisoned for debt arid poor con viets. (7) To hold 'to security for the peace andtakeev'idence and proofs of debt in bankruptcy. (8) To determine the status of Chinese persons under the exclusion acts.
tI. CITY OF GALVESTON.
(Circu(t Court, E. D. Texas. March Term, 1880.)
MANDA.¥US.....WHEN RIITURNABLE-TEXAS S;;A.TUTE.
Rev.:St. Tex;' art. 1215, proViding thattbll'defendant shall be summoned to all" pear at thll next regular, term of court, rela.tes only to ordinary pr0gessobtained from the ministerial oftlcerof the court, not to extraordinary writs. and a writ of mandltmU8 may be D:lade returnable 'at the same term. Fitzhugh v. Custer, 4, Tex. 891, followed. . . Wheres writ of malldamusis issued against the mayor and aldermen of a oity commanding them to pay forthwith a judgment against the city, or to shOW cauIW why a. peremptory writ should not be issued requiring them to levy a tax for the purpose'of paying the same, service upon the mayor alone is suftlcient for the purpose 'of eliciting an answer, as the city is the real party in interest. '. .
SAME-;LEVY OF TAX-REMEDY AT LAW-PENDING GARNISHMENT.:
Where a person having a judgment a city has gltrnished stocks owned by it to.8D amount sufficient to satisfy hlsclaim, he cannot have a writ of mandamus to compel the levy of a tax, while the question of, the validity othis garnisbment is still pending in the supreme court on his own appeaL '
Application by D. G. Hitchcock &00. for a writ 9f mandamus to mayor 'and aldermen of the City ofGalveston , requiring them to levy a tax for the purpose of paying a against the city, owned by him. Heard on demurrer to the return to the alternative writ. Demurrer overruled, and judgment for respondents. F. Oharlea Hume, for petitioners. W. P. BaUinger and R. V. Davidson, for respondents.
BRADLEY, Justice. On the 7th of May lllst the plaintiffs, upon a petition filed for that purpose, obtailledan order for the issue of an alternative mandamus commanding and directing the defendant the city of Galveston to pay .forthwith the amount of plaintiffs' judgment, with interest and costs, (being a judgment for $117,540.99,< rendered May 9, 1d79, with interest at 8 percent. per annum,) or to appear before the Court on Tuesday, June 1,1880, and show cause,. if any there might be,
1 .. 1 · '
HITCHCOCK ".ClTY OF GALVESTON.
why the peremptory writ of mandamus "should not issue, requiring a sufficient tax to be levied, assessed, and collected on and out of the taxable property within its corporate limits to pay said judgment, interest, and costs, and requiring said judgment, interest, and costs to be paid out of the 'proceeds of such levy, Ilssessment, and collection within 90 days from the service of said writ. The alternative writ was directed to the city of Gaiveston and to the .mayor aud aldermen by name, but was served only on the mayor, being served on the day it was issued. The defendants have appeared' and filed a return-Pirat, interposing some preliminary objections; and,8econdly,assigning reasons why a peremp.tory mandamus ought not.to be granted. The preliminary objections are two: First, it is objected that the writ ought not to have been made returnable in the same term, this adjourned term of the court being a. mere' continuation of the term pending when the writ was issued; and for this objection reference is made to article 1215 of the Revised Statutes of Texas t which directs that the citation shall command the sheriff to summon the' to appear and" answer the plaintiff's petition, at the next regular term of the court. This is substantially the old law, first enacted in December, 1836, (see Laws 1836, p. 201,) and afterwards in 1848, (see Hart. Dig. p.269, art. 810; Pasch. Dig. art. 1506.) By an early construction given to this Jaw in the case of Bradley v. McOrabb, Dall. Dig. 504\ it was decided that it related only to the ordinary PliOcess obtainedfroiri the ministerial officer of the court without the vention of judicial' power, and not to those extraordinary writs, such as habeas corptlS,mandamU8,etc., which are issued by the direction ofa court 01' judge,apd which would be deprived of much of their efficacy if they could only".be made returnable to a future term. This case was cited and approved in FitzhurJh v. CtlSter, 4 Tex. 391. "This objection, therefore," is not sustained. The other preliminary objection-thaUhe writ was only served on the mayor-must also be overruled. The proceeding is against the city, and is aga.inst the mayor a.nd aldermen vidualJy only! as representative 'officers. The mayor being the head offioer,. the writ was properly served on hipl. Of course, if a peremptory 1tiandamu8'be issued, it ought regularly 'to be served on all officers vidually whom it is desired to bring into contempt for disobedience to the command, :of the writ. But for the purpose of eliciting an from the corporation tosh6w cause why a peremptory mandamus should not be issued, service on the. mayor is. sufficient. Two principal grounds are alleged by the defendants in their return against the aplJlication for the writ of mandamtlS: Fil·at, that the plaintiffs have not exhausted their ordinary remedies for collecting the ment; and, 8econdly, that the common: council of the city of Galvef.'lton have no legal power to levy the tax which the plaintiffs seek to compel them to levy. The first of these grounds is based on the fact alleged in the return, that on the 9th of June, 1879, the plaintiffs, in order to lect the amount due on their said judgment, caused to be issued out of this court two separate wrirts of garnishment,-one against the Galveston Wharf Company, garnishing 6,222 shares of the capital stock of said V 48F.no.8-41
, FEDERAiL . REPORTER ,''Vol.
coinpanYl belonging to the :City of Galveston"and worth per share, 'besides $4;666.50 of dividends then due the eity; :the other against the GalvestortCity Railroad Company, garnishing 693 shaliesof the capital sttlck:ofsa.id. companYl belonging to the said city, and worth $12 per a,nd that dividends <in the former company' to the amount of $18,666 have 'sinceacerued totbecity On its said stock;: and that by said proceedings all i>f.said stock arid di.vidends have been placed beyond the control·ofsaidcitYi that judgment was given against the plaintiffs in saideuit of garnishment against the Galveston Whlj.rf'Company, (the court considering the said stock not liable, for the city's debt,) which jl.1dgm:ent has been removed by writ of error to the supreme court of the United States by the plaintiffs i and that judgment was given in favor of the, plaintiffs irt the' suit the Galveston Railroad Company· wllich 'jUdgment has been removed by ,writ of error to the supreme court of the United StMeSby the, defendant the 'city of Galveston; so that'thequestionofthHiabilitv of said several stocks to the satisfaction' of said plaintiffs'judgment is,stiil pending:and The prop.. erty belonging to th(Jcity tbusgarnishedarnountstoover$250,000, and is abufidafitly sufficient 00 sMis(v the judgment j,ri question if it should be held to:l,e applicable ,to the paytnentthereof. 'The plaintiffs argue tbatthe hity i.s estopped from urging this obJection to tbe mandamU8; because it contends and insists tbat thepreperty garnished is not liable to he applied ttJ the payment of the judp;ment. But tbis cannot'avliUthepla:intiffs, for tbey are!equally estopped by contending and insistifig th«titis so applicable. , On'e estoppel meets and nullifies tbe otber jRntl,the 'fact remains that here isahundant property of the city to pay thewnole demand, whioh the plaintiffs bave taken the ordinary D1eans iOsubject to: that purpose; Had the property been visible and tangible, instead of being a chose in action, and had it been levied on under,jn' ordinary execlition, it is evident that such execution could not bave been returned nuUa bona, and, though tbedefendant in such case had contended that the property levied 10n could not be sold to pay the city indebtedness, yet, if the plaintifl8' insisted to the contrary" and. their claim'itohold, it,Jhey' could not, while prosecuting such claim, demand a mandamu8 for raising 'a 'tax also. Had the plaintiffs yieldedw tbe'judgmentof this CQUl't in reterenceto the stock :of the wharfcompany, tbey Illight then, perhaps, bavebeen in a position to ask for this kind of But not thus yielding, tbey take tbe atti· tude of still pUrsuing Hie'stook as njust means of satisfying their judgment. : It is a well-settled'pribciple that a writ of mandamU8 will not be granted where the party balfanotber adequate remedy. Hence amandafflU8 willriotl ordmarilyibegranted to Mmpel a munici<lal body to levy a tax to pa.)'ll. judgment:ul1til, by tbeiE'sue of an execution and a re. turn of'll.,«lla. bona, itbe'shown ,to, the'loou1't that the plaintiff bas ex. haristed all ordinary 'remedies for tha :aollectian of bis debt. In the present case, it is: true'ihullabona' has ,been' returned to tbe common ex.. aeutian issued upon the judgment. But the laws of this state afford
VAlt Dt1ZEE ". UNITED'
remedies forieachirig.propettywbich by ordinary execution. The plaintiffs, perhaps, may not have been obliged to resort to these B.ut shown they h,l1ve ybosen 'to do so; they have seized' upon: pro.pel1ty of tbecitysufficient, and more than sufficient, to pay theirwh()le debt, and' b'ya process which holds it as firmly a,s tangible. property .be held under: ordinary execution. They: are .engaged in prosecuting their right to'. hold this property. Thllii' 'very COurse of actid1'!sliows that tbe'qqestion whether they are not entitled to hold it is at least a doubtful one. Until this question is <;ided ,th,ey have any need of'the extraordiIUlry remedy of mandamU8. The plaIntiffs cannot with one hand grasp property sufficient to satisfy tlie,ir JUdgment, and reach out the other' for a mandamus to levy taxes. If their right to the property seized is disputed, they are.still in no plight to ask for a mandamUS until that dis-:. pute1s decided,or is by tl!lerit abandoned. . Ente'rtaining .these views, I think that the demurrer to the return must be overruled, and judgmentgiyen for the refusing the issue of a peremptory man-: damU8. This renders it unnecessary to consider the question of the power of the city to levy' the tax in question. Judgment is given' for the respondenWaccordingly.
(DMtnict Court,N. D.l0t0a, E. D. November Term, 1891.)
Act Congo Feb. 22, 1875, reql,lires the accounts and vODche.rs oltbe marsbal, clerk, and district attorney to be' malie out in duplicate, the original to be forwarded to Washington, and the duplicate to be retained by the clerk; the papers forwarded to be accompanied by a certified copy of the order of allowance. Held, that the latter paper is no part of the vouchers,required to be made in duplicate, and hence the clerk is not entitled to". fee. fur duplicates thereof. ' UnderAct Congo Feb. 22, 1875; reqniringtbe official acCounts to be presented to the court in the presence of tbe district attorney or his aSsistant, it 1& necessary
fI.S..ure-:ll:NTRIES OJ' SUBMISSION' Ail'll ApPROV AL'oJ' ACCOUN'l'8.