Riggs v. Johnson County/Dissent Miller
Mr. Justice MILLER, dissenting.

In the case of Gelpcke v. Dubuque, reported in 1st Wallace,  I felt called upon to point out the evil consequences likely to flow from the doctrine there asserted for the first time, that the construction given by the State courts to their own constitutions and statutes, could be disregarded and overruled by the Federal courts sitting in the same States and deciding the same controversies.

These consequences are now apparent in the judgments just rendered, whereby the State officers are commanded to disobey an injunction of a State court, rendered in regular judicial proceedings, to which they were proper parties, in a matter of which that court had undoubted jurisdiction, concerning the levy of a tax under State laws.

It may not be inappropriate to review the steps by which this court has gradually arrived at the conclusion that it can do this, for the purpose of enforcing the payment of bonds, issued without authority of law, out of the property of those who never consented to their issue or agreed to pay them.

In almost all the cases where municipal corporations have any authority at all to issue such bonds, the statutes which give the authority require that there shall first be a vote of the majority of the people of the municipality, approving the purpose for which they are issued, and authorizing their issue. Of course the law fixes the manner of taking this vote; and I believe that, until this court decided to the contrary, no court had ever held that such bonds were valid without a substantial compliance with the statutes on that subject.

But in the case of the Commissioners of Knox County v. Aspinwall, 21 Howard,  it was held that the commissioners, whose duty it was to issue these bonds in the event that a majority voted them, were to be the exclusive and final judges of their own authority. It was said that because it became their duty to determine whether the bonds had been legally voted or not, before they issued them, therefore the fact that they had issued them was conclusive of the vote and of their own authority, and precluded all inquiry into that question.

These commissioners were merely the agents of the people of the municipality. Their authority depended on no private instructions, but on the public statutes of the State, which every person who dealt with them could examine. The proceedings for a vote were all of record, as well as the return of the officers taking the vote.

Yet, in the face of all this, when these agents transcend their authority, and attempt to bind upon the people of the county a load of debt which may absorb all their property, and heavily burden them for years, we are told that the agents were the final and exclusive judges of their own authority. When the highest court in the land renders a judgment or a decree, any other court before which the matter may come has a right to inquire into its authority to pass such judgment; but these mere agents of the people, whose powers are limited by law, may, by merely asserting their authority, pass a decree which no court can examine, because none can dispute their jurisdiction.

After this de ision, no matter how illegal, fraudulent, or unauthorized were corporation bonds, no defence could be made to them in the Federal courts, and, of course, they were all sued upon in those courts.

But when judgments were obtained, it was found that the ordinary executions did not always produce the money, and some new device was to be resorted to for this purpose. Accordingly, we find Mr. Aspinwall applying for a writ of mandamus to compel the board of commissioners to levy the tax necessary to pay his judgment. This court held, in 24th Howard,  that he was entitled to the writ. This was decided only seven years ago, and is the first instance in which a Federal court ever issued a writ of mandamus to a State officer in the history of this government.

I shall examine into its authority to do so hereafter, but merely note it in passing as among the new doctrines which this court has found it necessary to establish to enforce payment of county bonds.

The next step was the decision already mentioned of Gelpcke v. Dubuque, in which the court held that the later decisions of a State court on the construction of its own constitution, although unanimous, would be disregarded in this court in county bond cases, in favor of earlier decisions made by a divided court.

In the present case we are required to take another step in the same direction, and one still more serious. We are asked by mandamus to compel these municipal officers to disobey an injunction of the State court duly served on them, and made perpetual by a decree to which they were parties, and which, if they disobey, they will be imprisoned for such disobedience. Before doing this we are requested to reconsider the question of the right of the Federal courts to control the officers of the State in the execution of State laws, by writ of mandamus, by counsel who is commended to our consideration not more by his age and experience in the law, than by his acknowledged ability as a constitutional lawyer. In doing this, he points out that a provision of the statute bearing directly on the question did not receive the attention either of counsel or of the court, in the decision of Aspinwall v. Knox County, nor in any subsequent case.

This question must be determined by a consideration of sections thirteen and fourteen of the Judiciary Act of 1789.

The court, in the case above mentioned, bases the authority to issue this writ on the following language of section fourteen: 'All the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.' The writ of mandamus is not here mentioned specifically, and can only be authorized when it is necessary to the exercise of jurisdiction already existing, and when agreeable to the principles and usages of law; and if it is specially provided for by statute, it is not included in the 'other writs' referred to in this section.

It is asserted, in this class of cases, to be necessary to the exercise of the jurisdiction of the court.

It is a little remarkable that the first case which required its use by a Circuit court against State officers, should have arisen seventy years after the authority was granted, under which it is now called into exercise. While this consideration may not be conclusive, that the writ is unnecessary to the exercise of that court's jurisdiction, it affords a strong presumption against the existence of such necessity; and also that its issue in such cases is not agreeable to the principles and usages of law.

But any doubt we may have in the construction of the fourteenth section, standing alone, is removed by the provisions of the section which immediately precedes it. It is there said that 'the Supreme Court shall also have appellate jurisdiction from the Circuit courts, and courts of the sever l States, in cases hereinafter specially provided for, and shall have power to issue writs of prohibition to District courts when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States.'

I shall not attempt, in the face of this statute, to argue that the power granted by it to the Supreme Court to issue the writ of mandamus is limited to courts appointed and to persons holding office under the United States, when, as in the present case, it is to be directed to a person, by virtue of his office. The concluding words of the section are useless but for the purpose of so limiting it, and if these words are useless, they are the first which, in eighty years, have been found to be so in this admirable statute.

If, then, Congress, in the very sentence in which it gives appellate jurisdiction over State courts, expressly denies to this court the right to issue the writ of mandamus to State courts and State officers, while it grants it in cases of Federal courts and Federal officers, did it intend in the next section to authorize the inferior courts, which have no appellate jurisdiction whatever over any State tribunal, to issue mandamus to State courts or to State officers? Or did it intend that while the Supreme Court itself was forbidden, both in its appellate and original jurisdiction, to issue a mandamus to State officers, that court might effect the same purpose by ordering the Circuit courts to do it? This would be an inconsistency of which there is no other like instance in the statute, and which is at variance with the care and skill which are apparent in all its parts. This view could be well supported, if the occasion justified it, by an examination of all the legislation of that period, showing the jealousy with which the rights of the States and of the State courts were guarded.

If, however, the Federal courts can, under proper circumstances, take control of these officers for the purpose of compelling them to levy taxes, it is incontrovertible that the power of the State courts over such officers, and over the subject of their right to tax, is as full and complete as that of the Federal courts can possibly be. It is, indeed, a concession to say that the jurisdiction of the Federal courts is concurrent with that of the State courts.

In the cases now under consideration it is conceded that the State courts had issued their injunction after due course of legal proceedings, in which the tax-payers were complainants and the supervisors were defendants, before any application was made to the Federal court for a mandamus.

In order to prevent such confiicts as threaten to grow out of the matter before us, in cases of concurrent jurisdiction it has been established as a rule that the court which first obtains jurisdiction of the case shall have the exclusive right to decide the matter in issue, and that any other court which may have subsequently assumed to act in the matter must, when the fact of this priority of jurisdiction is brought to its attention, proceed no further.

This principle is necessary, and is recognized in all courts; and when properly applied in the spirit of comity which should actuate courts, will be found sufficient to prevent unseemly collision between them. It has been recognized by this court so repeatedly as the rule which governs in matters of concurrent jurisdiction between the State and Federal courts that a citation of authorities is hardly necessary, but I mention Shelby v. Bacon,  Carroll v. Taylor,  Freeman v. Howe,  and Buck v. Colbath. 

This principle being conceded, and the return of the supervisors to the alternative writ of mandamus, showing that they were enjoined from levying the tax to pay these bonds before the app ication was made to the Federal court for the writ of mandamus to compel them to levy it, it would seem to follow that the decree of the State court must be respected, and the return be held sufficient.

But here we are met with another of those judicial subtleties of which the corporation bond litigation seems to be the prolific parent.

We are told that the writ of mandamus is not a new or original proceeding, but is merely the ordinary exercise of the court's jurisdiction in enforcing a judgment at law already rendered for the payment of money; that a judgment had been rendered in favor of the relator against the County of Johnson before the injunction issued from the State court, and therefore the Federal court had first acquired jurisdiction of the case.

Let us inquire for a moment of what case the Federal court had acquired jurisdiction. Of an action of assumpsit, in which Marcus Riggs was plaintiff and Johnson County was defendant, and in which the plaintiff recovered a judgment for his debt. Of what case was it the State court had jurisdiction? Of a bill in chancery, brought by the resident tax-payers of Johnson County against the board of supervisors of that county, to enjoin them from levying a tax to pay certain bonds. Neither party to the suit in the Federal court was party to the suit in the State court, or was a necessary or a proper party to it. The subject-matter of the suit in the Federal court was the ordinary collection of a debt from Johnson County. The subject-matter of the suit in the State court was the attempt of the board of supervisors to levy an illegal tax. The County of Johnson is a corporation capable to sue and be sued. The supervisors are officers of whom certain duties are required. They are not identical, and cannot be sued for the same purpose.

It surpasses my ingenuity to see how the suit in the Federal court can be said to have first obtained jurisdiction of the case in the State court. The parties, plaintiff and defendant, are all different, and the subject-matter of the suit is different, and the relief sought is different.

Much has been said in the course of argument by counsel of the incapacity of a State court to enjoin the judgment of a Federal court, or to restrain or interfere with its process.

Nothing of the kind is attempted, nor any such power claimed by the State court in the proceedings relied on in the return. The judgment of the Federal court is not mentioned or alluded to in the proceedings in the State court. Neither plaintiff nor defendant in the Federal court are made parties to the suit in the State court. Nor is any decree rendered touching its process or designed to interfere with it. All the ordinary writs, and all the ordinary powers of a court in a judgment at law, may be exhausted by the Federal court without the possibility of any collision between that court and the decree of the State court. It is only when the plaintiff in the Federal court, having exhausted his remedy in that action, brings a new suit, with new defendants, praying for a new and different relief, that the courts come into collision.

It is said in answer to all this that the writ of mandamus as applied for in this case is no new action, but is the ordinary process by which the court enforces its judgment, and that this is especially so in the Iowa Circuit, because such is the case in the Iowa State courts.

The Revision of 1860, of the Iowa statutes, must determine the soundness of this proposition so far as the courts of that State are concerned. Chapter 153 is headed in capitals, 'Action of mandamus.' § 3761 describes the cases to which the action is applicable in the language used by common law writers. § 3762 says the plaintiff shall state his claim and facts sufficient to constitute a cause for such claim. § 3766. The pleadings and other proceedings in any action in which a mandamus is claimed shall be the same in all respects, as nearly as may be, as in an ordinary action for the recovery of damages. § 4181 says that when the actio  of mandamus is by a private person, there may be joined therewith the injunction of chapter 156, . . . and the action shall be by ordinary proceedings.

I believe I have quoted substantially all that there is on this subject in the statutes of Iowa, and these govern the practice of her courts. I think I am also entitled to speak of the actual practice in those courts. It is clear that it is not a mere ancillary writ, but is in all cases a separate action, with pleadings as in other actions, and judgment thereon. How then can it be said that this is one of the ordinary powers of the court, incident to, and consequent upon, the judgment of the court, in an action of debt or assumpsit?

But the statutes of Iowa in this respect have not changed the common law. Bacon, in his Abridgment, says, that 'since this statute (9 Ann., chap. 20), a mandamus is in the nature of an action, special replications and pleadings therein being admitted, and costs awarded to either side that prevails.'

In the case of Kendall v. Stokes,  this court held, that 'the proceeding on mandamus, is a case within the meaning of the act of Congress. . . .. It is an action, or suit brought in a court of justice, asserting a right, and is prosecuted according to the forms of judicial proceedings.' And in another case between the same parties, reported 3 Howard, 100, the court says, it is now regarded as an action by the party on whose relation it is granted; and holds that the former action of mandamus is a bar to an action of assumpsit for the same cause. So in Kentucky v. Denison,  it is said, 'a mandamus, in modern practice, is nothing more than an action at law between the parties.'

Passing from these conclusive evidences of what this very court considers to be the nature of the writ of mandamus, and what the statutes of Iowa (appealed to in the opinion of the majority as the basis of their judgment) intend it to be, if we look to the essential nature of the present proceeding we shall still be more convinced that it is a new suit in every sense of the word. We have already shown that the parties are different. The purpose of it is to enforce the levy of a tax; an object which could never be obtained, and which is not within the scope of an action of assumpsit. The parties seeking the writ in the information which they filed in the present case, did not rest their claim on the statement that they had a judgment against a corporation which they could not enforce by execution, but they go back of that and recite the issue of the bonds, and the vote of the tax to pay them by the county, and pray for this writ to enforce specifically that contract. And in the opinion just delivered, it is declared to be the object of the writ to enforce the judgment of the court, by levying the tax, 'as provided in the contract.'

So that it is clear, that both the plaintiff in his information, and the court in its opinion, consider the writ in this case as in the nature of a bill in chancery, to enforce specific performance of a contract.

And that is precisely what it is. Was it ever heard that such a bill is merely ancillary to a judgment at law, and is only used for the purpose of enforcing a judgment for damages, for failing to pay a note or bond? The obligation of the supervisors to levy this tax, if it exist at all, is as perfect in regard to bonds on which there is no judgment, as it is where judgment has been rendered; and this duty can as well be enforced by mandamus in the one case as in the other. It is this duty which is sought to be enforced in the present case. If a mandamus is liable to issue without the judgment, how can it be said to be an incident to the judgment, and a part of that suit?

But if I am mistaken in all that I have thus far been saying, there is another proposition, supported by a uniform current of authorities, which would preclude the issuing the writ of mandamus in this case. That is, that the writ is never issued  o a party whom it would expose to imprisonment or other serious damage for obeying it.

I have not time to quote from the authorities on this subject, but they are numerous and without contradiction. 

The cases before us have been argued with great zeal and ability on both sides, and counsel for the relator were challenged to produce a single reported decision in which a mandamus had been issued to parties who would be subjected to danger, to expense, or to suffering, by obeying its order. No such case has been found, and I feel authorized to say none can be found. With all the respect which I have for this court, and for my brethren who differ with me, I take the liberty of saying it has no right to set aside all precedent, and disregard established rules in the belief, however confidently entertained, that it is done in the cause of justice.

The CHIEF JUSTICE.

I concur mainly in the views and wholly in the conclusions of my brother Miller.

GRIER, J.

I concur.

Immediately after the delivery of the judgment in the preceding case, was delivered by CLIFFORD, J., the opinion in another, in all essential matters just like it; the doctrine of the preceding case being affirmed. It was the case of Weber v. Lee County.

Notes