Page:United States Reports, Volume 209.djvu/429

 09 U.S. Opinion of th Court. toppel alone. The manner of liquidation of thee judgments was the subject of express contiact between the partie. In the present case, by the action of the city council, the judgment creditors were so placed that during the time, at least while the city council were carrying out the arrangement of December 3, 1901 in good faith, they could not consistently with fair ddaling and the terms of the contract on their part, imue an execution to seize the property of the municipality; had they undertaken to do so a court of equity would have promptly restrained such proceeding. the city council made a levy each year for the largest amount which the statute permitted, to create a judgment fund out of wMch to pay, and out of which was regularly paid, the out- mnding judgments against the city, and that these payments continued until the plaintiff's judgments were reached, which were next in order. While thus acting to the limit to which the law permitted, and in good faith carrying out the arrange- ment between the parties, it is perfectly apparent that the plaintiff was not, in a position to seize by execution any prop- erty of the municipality If it could be held, as the authorities indicate (2 Dillon on Municip. Corp., 4th ed., �0, note 1), that when execution cannot be issued on a judgment against a municipality, rnan- damns may take its place, the action of the city council in making the arrangement in question would have equally pre- vented the plaintiffs from availing themselves of that writ: In this cme the agreement made by the parties in Decem- bet, 1901, was being continuously carried but until 1905. And during that time the city of. Perry was doing all it could be compelled by mandamus to do in levying taxes to the full amount required by law for the payment of judgments against the city. The court would have no power by mandamus to compel the levy of taxes which the law did not authorize. United States v.Mcon County Curt, 99U. S. 582, As we have said, the principles of natural justice and fair

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