Ex parte Flippin

PETITION for a writ of mandamu to the Circuit Court of the United States for the Western District of Tennessee.

Talmadge E. Brown, having a decree in the Circuit Court of the United States for the Western District of Tennessee against the city of Memphis, made application on the law side of that court for a mandamus requiring the city and its mayor and general council to levy and collect a tax for the payment of the amount due him. In this application the name of the person then holding the office of mayor was given, and also the names of the persons who constituted the general council. An alternative writ was issued; and the parties named all appeared by the city attorney, and showed cause against the application. March 30, 1875, a final judgment was entered in the cause, 'by which it was ordered and adjudged that a peremptory writ of mandamus should issue, commanding the city of Memphis and its said general council to proceed each year, for the then ensuing three years, 1875, 1876, and 1877, to levy a tax, in addition to all other taxes allowed by law to be levied, sufficient in amount to realize $125,000 each year for the years 1875 and 1876, and for the year 1877 to realize a sum sufficient to pay whatever sum might then remain unpaid of the said decree. It was further ordered that the clerk of said court, whenever the said Brown should request the same, should issue each year, during the years 1875, 1876, and 1877, respectively, a peremptory writ of mandamus, in accordance with said judgment, to be served on the city of Memphis and its mayor and general council, in the manner prescribed by law.'

Flippin became mayor of the city, and the other petitioners members of the general council, Jan. 15, 1876. The clerk of the court, at the request of Brown, issued, May 24, a peremptory writ, returnable the fourth Monday in November, directed to the city and to the petitioners by name, as mayor and members of the general council, requiring them to levy the adjudged tax for the year 1876. Nov. 27, 1879, the petitioners moved the court 'to set aside and quash' this writ, for the reason, in substance, that they were not parties to the judgment upon which it was issued. This motion was denied Dec. 14, 1876; and the court, by proceeding against the petitioners for contempt in failing to obey the writ, is now endeavoring to compel them to perform the duties which the judgment enjoined upon the city and its mayor and general council.

Pending these proceedings, this application is made here for a mandamus requiring the judge of the Circuit Court to quash the writ.

Mr. W. Y. P. Humes and Mr. S. P. Walker for the relators.

The proceeding by mandamus in this court is the proper and only remedy of the relators.

An order of the Circuit Court, quashing or refusing to quash a writ, cannot be reviewed on a writ of error. Mountz v. Hodgson, 4 Cranch, 324; Boyle v. Zacharie, 6 Pet. 648; Toland v. Sprague, 12 id. 300; McCargo v. Chapman, 20 How. 555.

In the latter case, this court declared that if an execution should be issued, not authorized by the judgment, and the court below should refuse to quash it, a mandamus would seem to be the proper remedy. 'It is a writ which may be issued to inferior courts and magistrates, to require them to execute that justice which the party is entitled to, and which by law they are enjoined to do, and where there is no other remedy.'