;1.42
FEDERAl, REPORTER.
DEVEREAUX LoAGUE,
'/J.
CITY OF BROWNSVILLE.
Adm'r,
11. TAXING DIST. OF BROWlI"sVILLE.
«(Ji'fc1,it (Jowrt, "Iv. D. Tenne8866.
January 20. 1887.)
L
OoNSTITUTIONAL,LAW-OBLIGATION OF CONTRACT-MuNICIPAL CORPORATIONS -REPEAL OF CHARTERS-TAXATION TO PAY DEBTS OF EXTINCT MUNICIPAL-
ITIES.
Ita municipal charter be repealed. and the same' inhabitants and territory be reorganized into another oorporation, the latter is the successor of the former, both in the corporate oblIgation to pay the existing debts. and those corporate powers of taxationoonferred as a part of the remedy of the creditors; and any statutory prohibition of its exercise is void. under the inhibition of the federal constitution against impairing the obligation of contracts.
2. SAME SUBJECT-MANDAMUS AGAINST THE SUCCESSOR OF EXTINCT MUNICIPAL-
Those agencies, existing for the local government of a municipality, are bound to perform such duties as are necessary to enforce the taxing power, although not especially de,signated for that purpose. if there be a general grant of the power of taxation to the municipality itself. This duty is implied from the general grant. whether it be conferred directly by statute upon the particular municipality, or devolved upon it as the successor in corporate obligation through a grant to its predecessor. Therefore a mandamu8 will lie to enforce. by taxation. the payment of judgments against the original corporation, to be directed to the governmental agencies of the new corporation, they to proceed according to lihe general laws of the state governing the exerCIse of the taxing power, by municipalities possessing tIle authority.
ITIES-JUD,GlIIENTS AGAINST,MUNICIPAL, CORPORATIONS.
8.
SAME SUBJECT-TAXING DISTJUCTS OF TENNESSEE-CASE IN JUDGMENT.
Under the legislation of Tennessee, repealing municipal charters and reorganizing the inhabitants into taxing districts, contrived to, compel creditorS to accept a compromise of their debts at reduced amounts, the prohibitions of the exercise of the taxing p9wer by the new local governments are void, so far as relates to those, grants of that power to the old corporations, which enter into contracts as a part of the remedy of creditors; and the "taxing districts" may be compelled to the power given by these original grants, by according to the general tax 'laws of the state. to certify to the county court clerk the necessary rate to pay the judgment. to be extended upon the tax'books, and collected as other taxes are collected. It is not necessary that the particular officials to perform this dut,Y, shall be designated in ilie statute. but the general grant to the corporation Implies that the officials governing the municipality shall perform it. and it 'Will be enforced by mandamu8 against the new commissioners who take the place of the former mayor and aldermen. "
.. SAME SUBJECT-SPECIAL SE;SSIONS OF LEGISLATURE-SUBJECTS OF LEGISLATION-GovERNOR'S CALL AS A RESTRICTION OF LEGISLATIVlll. POWER- CONSTITUTION OF TENNESSEE OF 1870, ART. 3, !'I 9.
It was not the intention of the constitution of Tennessee to require the governor to define. in his call for an extra session of ,the legislature, the de· tails of the SUbjects of the legislation desired, but only. in a general way. to confine the business to particular subjects. TMrefore a call for legislation "to enable taxing districts to compromise their old debts" does not exclude legislation repealing former grants of taxing power to the taxing districts to pay those debts. G. SerRE FACIAS-REVIVOR OF JUDGlIIENTS AGAINST EXTINCT CORPORATIONSRevivor of a, judgment against the successor of an extinct municipal corpo· , ration is accomplished by a mere suggestion of record. Aacirefaciaa is not , necessary before a mandamus can issue against the new corporation organized in place of th,e old. The practice examined and stated in relation to the effect of the legislation of Tennessee creating "taxing districts" in place of municipal corporations whose charters have been repealed. " SUGGESTION OF RECORD ONLY NECESSARY. ,
DEVEREAUX V.CITY OF BROWNSVILLE.
748
6.
If the state, with the deliberate purpose of obstructing the creditor, repeal a municipal charter, whereby there is no organi"ation to be sued. and the creditor be disabled from proceeding, the time of sucll obstruction will be exintention to suspend cluded from the limitation of the statute, the it being implied, as in case of war. Moreover, It may be set up as an equitable defense in proceedings by mandamm. 7. MANDAMUs-To ENFORCE JUDGMENT-INADEQUATE LEVY. Although the court will not compel"by alias writ of mandamm, any further levy of taxation until there has been an exhaustion of former levies. by pursuing all legal remedies against delinquent tax-payers, this rule does not apply if thll st.ate and the corporation abandon the former levies. and obstruct their operation by legislation and other acts intended to prevent the creditor from realizing them. 8. SAlm SUBJEOT-NuGATORY MANDAMUS-STATUTORyRECBIVER TO COLLECT TAXBS:-Al'POINTMENT NOT COMPELLED.
STATUTE OJ' LIMITATIONS-IMPLIED SUSPENSION-REPEAL OF MUNICIPAL CRARTER.,-STATUTORY OBSTRUCTION OF SUIT BY THE STATE-EQUITABLE DEFENSE TO MANDAMUS.
If the' governor of the state refuse to appoint a receiver authorized by statute to c011ect the taxes already levied by a municipal corporation whose charter ,:has been repealed, the court will not undertake to C'ompel an appointment by manaamm, because the writ 'rill not be issued where it is likely to be nu· gatory', 'and cannot be en.forced. Nothing less than an of the statute that a tax levy is intended to. be continuing and permanent will effectuate that result. It will not be implied or established by construction of ambiguous language. ' levied b, the legislature for municipal purposes,or grants o.f power to, amunicipahty to make such levies, may be re{>ealed, if they be sub· to the contract involved, as there is no protectIon under the federal constitution except for such powers of taxation as enter into and become a part of the contract itself, and belonll as a remedy to thecreditol'., The legislation of Tennessee, in relation to the "town" and "city" and " taxingdistrict" of Brownsville, examined; and held, that all special methods of taxation'graJ:!.ted to that municipality have been repealed, that the corpora· tion has been placed under the tax laws of the state. and that it is to those laws the creditors must resort for the enforcement of their judgments, by mandamus. where theJ are entitled to that writ against the taXing district f:'S the successor of the old corporation.
.'
9.
TAXATiON-PERMANENT LEVIES.
10.
CONSTITUTIONAL LAw-IMPAIRMENT OF CONTRACTS-POWBR OF LEGISLATURE TO REPEAL TAX LEvms FOR MUNICIPAL PuRPOSES.
11.
SAME SUBJlllOT-TAXING DISTRICT OF BROWNSVILLE, TENNESSEE.
At Law.
Petitions for mandamus. Sneed and Graft« Cooper, for petitioners. Bond « Rutledge and Smith « OoUier, for defendants. Before JACl.{SON and HAMMOND, JJ.
HAMldONb, J. Following a public policy. reviewed in its application to the city of Memphis in Meriwether v. Garrett, 102 U. S. 472, the
legislature'of Tennessee, in 1879, inaugurated a plan of relief for insolvent municipal corporations, whereby it was expected they could escape the payment of their debts, unless the creditors would accept the "i'lettlements" tendered them under the provisions of the legislation. The general plan was to repeal the charters,' so that there shOUld be no officials or agencies liable to judicial compulsion by mandnmU8j then to supply other. agencies of local invested with all the powers of the old municipalities, except the taxing power, which was not only with-
P$DERAL REPORTER.
held, but conspicuously prohibited,to those new organizations, called "taxing districts." The"taxes for carrying on the new coptrivances were to be levied directly by the legislature itself upon the taxables within their boundaries, and, that body not being amenable to any judicial coercion by niandamus l it was,helie'ved that the creditors were wholly without remedy. The legislature then provided for a settlement with creditors upon the general basis of the old indebtedness at the half, the amount at which the or "compromises" its own indebtedness. The taxes to pay the'interest and principal of the new bonds, like other taxes for municipal purposes, were to be levied directly by the provision isniade that, in default of such levy, the "taxmg dIstrICts" may theniRelves levy the necessary tax. 1883, c.170, p. 224. This act applies to all "tRxing districts," of whatever class, and by its hyEmtieth section" repea,ls allla.ws, or parts of laws, in conflict herewith."', "'. " 'Underthislegislation 'i he supreme court of Tennessee has held that, by operation ofthe constitlitiori'ofthe United States, forbidding a state to pass laws impairing the obligation of contracts, these new "taxing districts" are simply the successors ,of the old corporations, so far as relates to the to 'pay the existing at the time of the repeal of and t4at,creditors may proceed against them, as such successors,the obligation Testing upon the inha.bitants of the particular o'etmnorv.Memphi8" 6 Lea, : ehr'l1U1/Y1, v,: '!'aa;i't!f/'Dist. , 2 Lea, 425. ,The same by the supreme conttof,the United States in Mobile v. Wat8on,1l6 U. S. 289;
Lu
and district judges on the benoh, upon considerations entirely satisfactory to us, that it is the logioalresult of that principle, iiit be not distinctly decided in case, that any power of taxation, provided as a means of paying their debts, heretofore granted to the original municipalities, devolves as readily as the"obligation to pay'them, and by like operation of the federal constitution, upon those successors, notwithstandingthe attempted statutory prohibition. That power:wasa grant to the inhabitants of the particular municipal territory, and riot to the designated officials through whose agency it was exercised; and those inhabitants may I and must, exercise the power, so far as the old creditors are concerned, through any new agendes existing by law, and adapted to the work of levying $ond collecting taxes. As evidence of that adaptation, it may be remarked that the "taxing districts" are especially authorized to exercise all the .essential powers of taxation to pay the new bonds, if the legislature neglects that duty; and it is particularly worthy of notice, in view of the argument made at the bar that a given agency of the municipal government must be designated and especially clothed by statute with the power to levy and collect taxes, before the general power, devolved as above mentioned, can be exercised, that by the twelfth section of this very act of 1883 the power is not so conferred upon any designated agency of the new municipal government, but only upon "every municipal cor-
S. C. 6 Sup.' 'Ct. Rep. 398. , ' . ' , .We have,jtisfneld in :Loudon Taxing Dist., (no opinion,) the circuit
DEVEREAUX V. CITY OF 'BROWNSVILLE.
745
poration or taxing district whkh compromises its debts," etc. The whole argument of the defendant was that no given agency of the new governments could eXercise the taxing power, unless appointed by lawto do so; yet this new legislation does not appoint any agency; but confers it· in the most general terms; as did the old legislation, upon the municipality itself; that is, upon the inhabitants of that locality. This would seem to be a sufficient answer to the argument, for it can hardly be imagined that any further legislation is necessary to enforce this power in favor of the holders of the new bonds,if occasion should require it; and the mandamU8would against the legislative and administrative officers ofthe taxing districts,just as we are here asked to order it. That is to say, it is a necessary implication from the general grant of the taxing power that the officials ofthemunicipality exercising other legislative duties would-be required to perform this. We do not imply the grant of taxing powel' as a product ofthe federal constitution, nor create it by cia.l jUdgment,-not at all; 'but we hold that the grant heretofore made to the inhabitants ofthe given territory has never been'taken away; alid that wbilethe agencieshave beetlchanged, and the methods of t.'txation altered; other agencies' and other methods have been provided upon which the la!w devolves the duty embodied in the general grant, j\lstas it would devolve it upoa these self-same agencies were the courts required to act uponthe general grant of taxing power under this twelfthsection ofthe act .Nor i!lthere any practical difficulty in the'way. The former method of having the municipalities make separate assessments, and providing independent agencies for the COllection of municipal taxes, has been long sincINlbolished b)T general law.' Now the state officials make, through the agency of the county cenrta, one general assessment, upon which' all ta±e$'areJevied and cOlleoted. This is placed in the hands of the county clel'k,and it 'is required " that cities and incorporated towns shall certify the rate of taxation levied by them to the clerk of the connty court," and he extends them upon olle tax-book, in appropriately designated columns, etc. Acts 1868, c. 102, § 2, p. 247; Acts 1875, c. 92, § 63, 159; Acts 1877, c. 73, §'6, 'p.96; ld. § 8, p. 97; Acts 1881, c. 171, § 42, p. 255; Acts 1883, c. 105:, § 42, p. 115. Here, then, is adequate and complete machinery, provided by general law, for all municipal corporations possessing the general power of taxation,.whereby they may effectually exercise it; and, given the general grant' to a certain body of people, it is a mistake to suppose that they need to have a statutory appointment of named officials to exercise it. Those appointed for the generaf purposes of thelocal government of that body of inhabitants may exercise the power, as tbeydo all governmental poWers of that 10001 character. . ; , . ItSsorily' necessary, then, that we require the officials of the new government 'to certify to' the 'coutitycourt clerk that rate which the judgment itself shows is needed to satisfy it, upon the basis of an assessment already at ,hand; that the county court clerk extend that· rate UpdD the and that the otberofficials collect the tax so Mcertained to be due from 'eaCh" tax-payer. It is a very sim.ple' process, and 1s the inevi..
746
.FEDERAL REPORTER.
table outpome of the decisions of the state and federal supreme courts already cited. Once grant· the taxing power to a body of people incorporated Jor local government, as.apartof the remedy given to holders of its bonds authorized by law, and it remains with them until the debt is paid, .and may be exercised as .long as any machinery of loC.?-1 government.is provided for them. .The entire destruction of the mabhinery in all its the relegatton of .the inhabitants to general mass, mightaqcomplish the intended ,purpose of this legislation; but, at the very mO:Qlent that new 'agencies of incorporation and government are substituted for the old, the inexorable rule of justice comes into play unmust. be paid. The der our constitution, and vociferous,stntutory prohibitions of this legislation are: void, both as to the neW corporations and their new agencies, so far as concerns the old indebtedness... 'fhe new machinery succeeds to and takes the place of taxing power the old, finding its powers of action in the old grants of in precisely the saOleway thatit finds the other elements of the contrapt cannot be impaired. . Our general tax laws applicable to the whole Eltate furniahcODvenientlythe instrumentalities for the work of taxation,and,.,tl;lere: is no necessity to decide howthis principle would Qperate if they wel'e wanting,-whether we would assessment, by the taxing district officials, and which of them levy, and by the coqrttQ perform· the duty, etc. As it is, we would.be have the assessment, we have an official. to Separately extend each levy 00 the collection book, and other to collect the tax. The judgm.e:ot itself the aggregate amoJ]nt.required, and a simple calculatio):} and the. waking ofacertificate. of the rate is all th,at the municipal accPD;lplish the work. 'l'heirdutyto make the certificate comes. from the orjginalgrant of the taxililS pQwer, coupled with the general ta!X laws of 1881 and 1883, ,the certificate to be made, not by any specifically appointed officials, but by "cities and . ip.porporate!l towns," implying, obviously, that .the officials charged with the mupieipal government shall do . But certain special defenses in tl;lese that now require the, defendant's charter in 1879, our attention. The legislattJre the judgments here involved· beitlg at that time unsati!>fied in this court. districts of Acts 1879,c. 27, p.41. In 1881 the formation of disthe seCQnd class" wasauthorized,and, under that act such a trict" was organized for Brownsville;. in 1883. ActS 1881, c. 127, p. .acts "cQmmil!lsioners"were substituted for ,the for174. By existing :Qlll.yor and !J.ldel'Irlen,"with all the usual.authority, legisthe power to levy tRiKes, which was lative, executive,anq judicial, prohibited. .But the act of 1879 especially enacted .that nothing cont(l.ined in shoul<ilimpair the pbligAtion of then existing contracts,'and "hereby levied"a·tax of o.oe dollar per hundred, onethe act half of whiqh to.be applied to the current· expenses; and the other Specific poweqvas also gi ven to one of the" corom to the sioners,", cal,led .and financial ,agent," to assess and collect this ta:l'.Tpe.general act oU883, already noticed, relating to all tax(I
DEVEREAUX tI. CITY OF BROWNSVII,LE.
747
ing districts, had been passed; btit by an act the act of 1881, relating to" taxing districts of the second class," was amended, and section 2 gives the commissioners the most ample power to .levy taxes, and appropriate money to provide for the payment of" all the debts and current expenses of the districts." Acts 1885, c. 82,p. 162. It is apparent thatjnotwithstanding the general act of 1883, and its broad repealing clause, the legislature (or, rather, the authors of this legislation relating to BroWnsville) considered the act of 1881 as wholly unaffected by it. But bya sUbsequent act of 1885, at the extra session,the full powers given under the former act of that year were taken away, or, rather, limited to the payment of the "compromise" bonds only; the evident object ofthe last act being to correct this careless blunder of a departure from the geneml plan of relief already fully commented upon. Acts Extra Sess. 1885, c. 10,.p.75. A question was made at the bar whether this last act of the extra session could be made to fall within the terms of the governor's call for an extra session, as otherwise it would be unconstitutional. Const. Tenn. 1870 t , art.· 3, § 9. We think it does. It was not the intention to raquire the governor to define withprecision, as to details, the subjects of legislation, but only in a general way, by his call, to confine the business to' particular subjects. MitcheU v. Turnpike (h., 3 Humph. 455. Tdo,great'latitude of construction might, undoubtedly, abrogate the restrictibn:of the constitution, but, on the other hand, a too rigid requirement in this regard would disastrously embarrass the executive and the legislature; since the former could never, with accuracy, foretell what the legislative mind would adopt as pertinent to the general subject; and , therefom could not specifically define the provisions, or even the special character, of the forthcoming legislation, while the latter could not always, if ever; determine with accuracy what might or might not be of too remote affinity with the calL Besides, it would be conferring on the governor legislative powers never contemplated by the constitution, to pennithim to restrict the legislature as to the details or character of its enactments. We think, therefore, notwithstanding the discrepancy between the call for legislation "to enable taxing districts to compromise their old debts," and legislation repealing former grants of power to levy taxes .to pay them, that the act is not, in this regard, unconstitutional. The legislature and the governor might properly consider this repeal as a necessary means of reaching a "compromise." Acts Extm Sess. 1885, p. 7,wbere the call is printed; ld. c. 10, p. 75,. where the act is printed. The next question arises upon the defendant's objection that these judgments have not been revived by scire facias against the new corporation. ,We do not think this necessary. By section 15 of the act of 1881 the "taxing districts established under this act shall be known by the name of the town or city at the time the corporation became extinct." So there was no change at all, even of the corporate name, except from "town" or "city" to "taxing district" of Brownsville; and that section further provides that "all suits by or against said district shall be brought by or against the board of commissioners of the taxing district 01
FEDERAL REPORTER.
Brownsville. ,. These judgments were obtained against,-and stand in the name of, the "board of mayor and aldermen of the city of Brownsville." , It is'conceded atthe bar that a mandamus against designated officials operates, without scire facias or other revivor, against their successors in office,and that a change of personnel is immaterial; but it is urged that here there has been an extinction of the corporate defendant 'to the judgment, and that it is as if all indiVidual defendant should die, when there must be a revivor against his administrator or other successor. This court, has general power to issue the writ of scire facias, when applicable to its procedure, and the acts of congress provide against the abatement of pending suits by the death of parties; but we are not aware of any federal' statute regulating the revivor of judgments, unless the process acts, Il;iving the same remedies of execution as are known to the state Jaws, may be said to require us to follow the state practice in that regard. Rev'. St. §§ 716,916, 955, 956. But we do not find that the state' statutes contain any special' provisions different from the usual common.lawprocedure on this subject. General provision is made for the use of the scire facias to revive judgments upon the death of parties, - (Thomp. &8. Code Tenn.§§ 2981" 2988; M. & V. Code Tenn. 37013704;) and against the abatement of all actions, which may be revived by scirefacias or upon 'mere motiOJa, according to circumstances, (Thomp. & S. Code Tenn. §§ 2845-2859;. M. & V. Code Tenn. 3559-3570;) Among these provisions is one that, if the "decedent" has parted with his interest pending the suit, it may be revived against "his 'successor in interest," instead oithe representatiV'e or heir. For the obvious, reason that a corporation is supposed to be tially immortal, and that a mere change in the personnel of its management does not require any notice in legal proceedings against it, none of these statutesj state or federal, make any provision for the revivor of suits against "extinct" corporations, except that where the state proceeds to dissolve the corporation, a decree of dissolution shall not extinguish its debts; but the court appoints a receiver of its property to pay the debts; and, if dissolved for any cause, they shall continue to exist for five yearsior the purpose of proseouting and defending suits against them;' Thomi>. & S. Code TenD: '§§ 1493, 3426; M. & V. Code Tenn. 1720, 4163. These provisions,of ,the Code relate to private corporations, and are not applicable, perhaps,except as analogies, to public municipal corporations; but this court had occasion to consider them in relation to a,n extinct railroad corporation in Kelley v. Mis_Wi {knt. R. Co., 1 Fed,'Rep. 564, S. C. 2 Flip. 581, and there the somewhat false and misleading analogy to the death of individual suitors is suggested. It applies with greater force here, andoomes of pressing too far the doctrine that a corporation, either private or municipal, has an existence independent of the persons who compose it. The "law providE/s heirs, executors, or administrators for dead persons; but an extinct corporation must be represented by the individuals who originally composed it." ld. Now, here the population of the town of Brownsville, and all its accretions of individuals, from whatever source, constituted the munici-
DEVEREAUX
v.
749
pality known as the "town" or "oity" or "board of mayor and aldermen" of Brownsville, and these same persons now compose the municipality known· as the l·taxing or "board of commissioners" of Brownsville. So, at most, we have:only a change of name; and scarcely that, in relation to theper80nB sued,whatever may be said as to their corporitte rights, powers, or liabilities. Indeed, the legislature itself, as above shown, enacts that the new corporation 8hallbeknown by the 8ame name; and the change of designation, lor the snablestyle, from "Board of Mayor and Aldermen of the City of Brownsville" to that of "Board of Commissioners of the Taxing District of Brownsville," is in itself not worthy of much consideration, even as a change of name. But a. mere change of'name for substantially the same party does'hot require a 8cire facia8;anda8ttggestion of the fact upon the record is'sufficient to meet the technical requirement: that the execution and judgment must be consistent with each other, so that the record shall not stand with a judgment against A. and an execution against B. ,whidhisthe only reason for any notice of the fact at all. .Hat'Wood v. 'Law,7:Mees. & W. 206; Penoyei'v.. Brace, 1 Ld. Raym. 245; .Fost.Sci" Fa. 99et8eq: . The couri said in Bosafl.qUet v. Ransford, 11 Ado}. & E. 520,'that ptO-: ceedby,l'lairejama8orsuggestionon the record depends on this point: "Whethe'r new parties ate to be introduced upon the record. The uniform course, if new parties ,are intJloduced, is by: scire facUt8. Stiggestion is applicable only to collateral facts, affecting the Raine parties; as, for examplei'change of name, etc., and similar matters.'" S. C. 2 'Q. B. 972, and 3l!l,E. C.L. 285. Mr. Foster SUms up the cases by saying: "In accordance with the above decisions, where there has been a rnere nO'fItinal chall1ge:oj parties, as in the public officer of 8 joint-stock company, the real party being the company, a suggestion on the record of such a change of the public officer has been heldsuflicient without scirejacias;" Fost. Sci. Fa. 103. It was so ruled in Webb v. Taylor, 1 Dow!. & 1... 676; Fost. Sci. Fa. 104, 10e, et 8eq. ' Hence we see that a revivor by 8cire jacias is only required where new parties are to be charged with a liability. The reasoning of the above cases,there . applied to such corporations as banks,etc., is more applicable to.a mere change of municipal authority. It is ttue,nodoubt, that these commissioners should be entitled to show any, defense they might have to the judgments that could be pleaded to a scire facia8; but because defenses may arise which might be available on a scire faciciB does notentitle a pamy to that writ; He may find it necessary to make the de:. fense otherwise, for he is :riot entitled to a Bcire,jaciaB, except when the conditions of the case require that Writ to issue, according to:the praC'tice. But a suggestion, as shown by the practice books, is traversable; and, if the facts upon which it is made be not true, it cannot be entered of record. Moreover, owing to the peculiar nature ofa mamda'1l1UB, it affords in itself ample opportunity to these commissioners to make any defense,bya return to the alternative writ or rule to show cause, that they can make to the 8cire 'facias. The court wilf not issue the writ reremptorily, if there be any reason, sufficient in! fact or in law,l1gb-iust
it, 'and the pleading is of that character which affords the widest scope for allY. in any way. More entirely, therefore, here, than in, ,any othercase$,. as ,where thefieri facia80r some like writ of execution issues,. is the f\lle a scire facias, upon change of parties, ba.sedllPoll :the purelYiteehnical demand. that the writ and the record shtUlconsistently confomto"each othel'. We do not find the precise point of practice de.termined, but we doubt if this reason of the rule requiring a scire facias" 01' a suggestion of record for that purpose before a fterijJJcias ('an issue, applies at all when the writ of execution takes the form of a mandilll1hU8, becaU'se of the essential difference in the forms of the two ·writs.. This is not, however, Very important, as we hold that a bare suggestion, which.iIUay be now made of record, is all that is required. This suggestiQn need only state that, by subsequent legislation, the suable style of the defe.ndantcorporation has been changed from that which appears in the face. ofthe judgment to that required by the new legislation. If this be .dona, the record co:o.sistent with any writ that may issue on the .judgrnellt, ,whether fieri faciaa or mandamus, and this is all that the practiCEl eeeks to accomplish in such cases. It is the same party I by a diffe11611.t name; sought to be charged, namely, the. inhabitants of Brownsville, in their capacity j not any new party. Hence no And, since a mandamU8 may issue against individuals who may not be parties to the judgment, conformity to thejudgmenUnllames is·not always either :possible or necessary. .Manifestly, we parties frQlll;thepreliminary petition or affidavit upon which. the.'l,n£Wi.damus is tQ. be founded, and they may be the names of whatever whQ are charged with the duty sought to be enforced. When.thay answer as individuals, they can setup any defense. either in their own right or.as the, representatives of the defendant corporation. Although there was a scire facias in O'Connor v. Memphis, BUpra, the cO\lrt clearly recognizes that a suggestion. on the record of the change of name ma,y be the proper form of proceeding. 6 Lea, 731. If Greeley v, Sm;Uh, 3 Story, 657; Mumma v. Potomac 00·· 8 Pet. 281; The Sapphire, 11 Wall. 164j and Thomp8M. v. U. S" 103 U. S.480,,have any application, they support, and do not conflict with, the ruling we make. Wheth!'lrthe itilhabitallts of the" city" of Brownsville, who in their corporate capa.city. contracted these debts, with a power conferred of paying them by. local taxation,. and whom the law still compels .to pay them by the exerciSft oJ that power,were a different corporation from that same pody of inbabit4nts wholu'e now incorporated as the "taxing district"of BrowDsv:ille"or;:whetherthe old corporation be "dead;" and a new one whether both be the same, under different nllomes,are questions pertaining more to the: .metaphysical doctrine of psychppannYc:lhiBm," if that can be, adapted to corporations, whichare said "to h!'l..ve no soul)" than to the. practicaL science 'of legal procedure. defense set up is .thatone,ofthe judgments is barred by the
DEVEREAUX V. CITY OF BROWNSVILLE.
751
statute of limitations, it having been more than 10 years from the date of the judgment to the suing out of this mandamU8, although other like writs have issued in the mean time. If the time elapsed between the repeal of the oharter and the reorganization into a "taxing district," during which there was no organization to be sued, be excluded, the 10 years have not expired, and the bar has not attached. We have no hesitation in holding that it should be excluded, precisely as the time occupied by our late war was excluded, and for precisely the same reason. If a state, with the deliberate and confessed purpose of doing that, repeals the charter of a municipal corporation to enable it to evade or avoid the writ of mandamU8 to enforce judgments .against it, thereby disable the plaintiff from proceeding in the case, the time of disability should not be computed. in the !letiod of the statute of Jimitations. We are aware of:the stringency of the rule' ,that courts will not ingraft upon the statute exceptions growing out of mere equitable considerations of ship or injustice, and the only doubt we have is ,whether the plaintiffs here are, not put to a bill in equity to perpetually enjoin the defendant corporation from pleading the statute, as one might be for relief against any fraudulent contrivance ofa defendant to' arrest'or delay the plaintiff'sprl:>eeeding against him. But since the act of an-est" complained of here is that of the ,state ,itself, by its own legislation, and through its paramount authority, whiehnone can resist, we.ftnd no difficulty lin implying from the new legilllll.tion and governmental'conduct of the $tate an'intention to exclude the time ofdisability from the statute, as is done in case of war. HangervlAbbott,6Wall. 532jU.8. v. Wiley, UWall. 508, 513,-where it was ruled that although the'right to sue was unhnpaired, the "loss of the ability to sue, rather than the loss of the right, stops the running of the statute." And in Braunv. Sauerwein, 10 Wall. 218, where the limitation waS suspended bytbe'opeTation of an act of congress, just as we think this legislation operates, Mr. Justice· STRONG remarks ·of the decisions: " .. They all rest on the ground' tbllttbe oreditor has been disabled to sue, by a superior power, without detault qt hisown,andtberefore tbat none of the reasons which induce the enactment of the; statutes; apply to his case ; that, ,the statut6l$ cease to run durinlt of the superveniIlg disability. be is of a portion of tbe time within Which the la w he might , . ,
There are other applications of the doctrine quite BEl familiar, as in cases of delay pending appeals. Mcmtgomery v. Hernandez, 12 Wheat. 129, :184. Moreover, this proceeding by mandamU8 is, in its constituent elenientsand its capable of supporting even an equitable defense against the statute. Ang. &A. Corp. (11th Ed.) §§ 715', 721, Rem. 457 t et seq. Thecourldoes not grant ;ofl'efuse the writ upon purely legalconsiderations. If the defendant baS any equitable defense aga.inst it, he may set it up in his answer to the rule to show cause or alternative writ, and it will authorize the court ,to refuse the peremptory writ. So, iibe sets up a legal defense, and the plaintiff can 'show an equitable answer to 'it, we see no reason
752
why the legal defense should prevail to obstruct the writ. Therefore we might ,issue ,writ, notwithstanding the bar of the statute, if it be inequitable Jor the defendant to' set it up. But by this. we mean only such an equitable defeuse as would authorize a court ofequity to relieve against the bar by its injunction, and not cases of mere hardship. The next matter for consideration is the character of. relief to be granted;to ,the' pluintiffs;and there are complications in the case which are perplexing; so muohso that one of these petitions was originally filed as a bill in equity, but, ,under the orders of the court, was converted into an ,application forman,dam'l.uJ;; for reasons that. are ohvious in the record.. Under JOfluer writs, .as to some of these judgments, taxes were levied, pal'tly collected"and: paid over. Some of these levies were commingled with other: judgments from ,this and the statal courts, one rate heiJ1gintended to cover, alIi andnbw we are asked to ,compel another levy for the 'u;npaid balance.' , ,' ' . .We. in this court that where a levy has been made suffioiently large to. cover the judgment, with a reasonable· allowance' of margin for:' delinquencies, ,we would not compel a further levy fot' inadequaCy: until' all the remedies afforded by law against delinquent t{Lx-paY;ersandtheir prdpertyhadJibaenexhausted. Otherwise the burden would, be:alwaysplacf-d wholLy upon tbe prompt tax-payers, and out prQportionto,tbeJleedsof the case, wG>uldbe piled up, to go into the general fund, or be never' collected.. We adhere to this nowjbut. the case' present, we think, an exception, unless: the defendant shall,'by its. return to the writ, present facts that ,will bring the case within .the ordinary ruling. It appears that there is nO' there was. in the Mernphi80a.se, to collect the delinquentta.xes of .the '''extinct''corporation, and it is stated that not even can the !old, tax-books be found, and the facts concerning the condition of the rrevies are. A receiver. was authorized by the legislation, and one of the governors of the state appointed one, but, hostile pressl,1,l,'e qf public opinion, anq. the difficulties of giving: bond, hedeclined.W, ,qua.li{y. Subsequent governors have neglected or refused to appoint:a receiver, and no provision has been made, in' theadministratioh qfaffaJrs; %r the collection of those -levies. ObViously, we cannofconipehhe'goverIior to appoint a receiver,-or we do not wish, at least, to attempt that,-and this court long since intimated that it, would not do ;so,..8.s' it would be nuga:tory, in all probability. High, Extr. Rem. (2d ,Ed.}§14;", Nor could we compel a person to accept or qualify asi'eceiv61, if appointed. Therefore we think that, for tnepurposes of-this case,ithedefendant corporation, and the state itself, p11t)t be: 'held tohav'e levies heretoforernade, and the Olieditots likewise; that it is; thU!!: demons1ratedthllt the levies ,were' in:' a'dequatetoaatisfy the judgments;· :and th!tt ,the case stands as if it had been. that the levies had been-wholly exhausted,leaving a balanoo unpaid. . ,; : ' , i ' .IFi!! next insisted by the plaintiffil ,that sincethe legislature,by the actof 1881, levied a.. tax Qfone dollar, enacted: that one-,half of it be
753
paid upon the old debts, and. provided the machinery for its collection, we should now compel that tax to be collected for each year that has transpired since the act was passed. As to this, it is to be observed that the act was a general one, applying to all "taxing districts" of the second class, and Brownsville was not organized as a taxing district for nearly two years afterwards; that being the time we have already excluded from the computation on the statute of limitations. Therefore it can scarcely be said to have been, as to Brownsville, a subsisting levy while the municipaJit1was disorganized, and dot rehabilitated under this act. If it came into force, as a levy, upon reorganization, tha'l; did not take place, we infer, :untilabout the time the legislature again met" and changed the law,. ifit did not occur afterwards. The general act of1883, already largely noticed,' 'applied to all taxing districts, and contained, as stated, a broad repeaHhat perhaps, in itself, abrogated this former tax under the act of 1881 ; but the denizens 'of Brownsville did not seem to recognize this, for in 1885 snothersct, applicable to :Brownsville, amended the act of 1881, repealed the former tax,and gave to the "taxing district" itself the largest powersoftaxation,fbr all purposes, even to pay "01<1 debts;" which session evident blunder, however; was speedily corrected by act of the same year, and' the,special legislation relating to Brownsyille WaB brought in harmony with the .generalscheme, already explained, whereby the municipalities were prohibited from exercising the taxing power, except to pay the compromise bonds in default of levies by the legis}atUre,etc. Moreover, the general tax acts already referred to, providing & single assessment for all purposes, and direoting how, county and municipal taxation ,should be. accomplished, when authorized, of themselves, by their repealing clauses, abrogate all the foregoing special methods for Brownsville. Now, these revocations of the taxing power under the act of 1885, and the repeal of the legislative levy under the act of 1881, are not, either of them, affected by the federal constitution; because, being subsequent to the contracts upon which these judgments were founded, they did not enter into, and become a part of, the remedy. Wherefore they were within the control of the legislature. So that, whether we consider the one or thepther, they no longer exist as a basis fot the coercive payment of these judgments through operation of a maitdam'U8. '. ' But there i.s still another reason wh). we cannot proceed under the act (jf 1881.; It may be doqbtful, under the ruling of Lynn v.Polk; 8 Lea, 135, whether the legislature can levy a continuing tax beyond t4e'two years for which it is elected, and whether that is not the utmost limit of its. apth'orify",ut).der the state constitution.. Butwe need now express no ,()piiiion that point. .It that, whatever. be the power of a legislature in that regard, such levies are not favored, nor raised by implications and constructions of the statute. The intention to make a tax continuing or permanent must be clearly manifested by explicit enactment, otherwise the courts favor the principle of periodic/l.llevies, the taxation is scrutinized',in the constantly recurring of newlyelected representatives. U. S. v·.Wiggle8worth, 2 Story, 369; Ada'llta v. v.29F.no.15-48
the
on
754
FEDJtRA'L REPORTER.
194,554.
Bancroft, 3 Sum. '384; WilkinsOn v. Greely, 1 Curt. 439,;-000Iey, Tax'n, 202; 1 Desty, Tax'n, 102,138; 2.Desty, Tax'n, 1055; Burroughs, Tax'n,
.
There is no such explicit manifestation of an intention to levy a permanent tax of one dollar, by the act of 1881, as is implied in the cation to now enforce it against the taxing district of Brownsville, which was organized after the two years to which the levy would certainlyapply. ' The general result is that the plaintiffs are left to the same remedy that we applied in the case, and they can have a writ only to that extent, unless the defendants, by their answer to the rule, show some better defense than has been suggested by their demurrers to the petition. We need not say, of course, that we cannot enforce any judgments of the state courts, and that as to these the petition will be denied. If the parties cannot agree as to any credits to· be entered upon the judgments, that disagreement must be settled before the mandamus can issue, and, if desired, the clerk may, upon a reference, 'report the facts to the court, and the balances due. Some of these defenses would perhaps be more apon the demurrers propriate in an 'answer to the rule to show cause; to the petition, we take it, the defenses may be presented, and we have can be done,but without prejuthought best to settle the case; 80 dice to the defendants to make any defense desired by response to the rule. ' I am. authbrized to say that these were the conclusions reached by the court at the hearing, and that the circuit judge fully concurs in this Counsel will prepare the necessary orders. ,So ordered.
WADE,
U. S.'Marshal, for {(se,ete., ,
'IJ.
WORTsHU and another. January
. Circuit Oour',
s.p. G601'gW,,1J. D.
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:i. &ME-MARsHALmay be said,tbat'wheI1ever the marshal performw,fn the en· MAY SUE, wuw." ': . Generally, it
:, for,cement of re,me,dl,"es, g,iven b.y. sta,t.e. , th,esame dU,ti,esWhich.are imposed by the law of. the state upon tbe sherd'fs of the state courtll, he is entitled to maintain the saine actions in the circuit court that the sheriff has in the state court. . ::: (Byllabui by the Oourt.)
Suit on Bond.
Char'le8 Nep1u!w West and Wade HamptcmWade" for plaintiffa. Ga'l'7'ard for defendants.