Taxing District of Brownsville v. Loague/Opinion of the Court

Mandamus lies to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. On the 19th of March, 1886, when this petition was filed, had the board of commissioners the power to levy and collect taxes to pay the judgments in question? The circuit court, in deciding that it had, proceeded upon the ground that the source of power was the act of February 8, 1870, and we concur in the view that there was no other. The city of Brownsville possessed no inherent power to tax, and while under an act of February 24, 1870, its inhabitants were constituted a corporation and body politic by the name and style of the 'mayor and aldermen of the city of Brownsville,' with power by ordinance 'to levy and collect taxes upon all property, privileges, and polls taxable by the laws of this state, to appropriate money, and to provide for the payment of the debt and expenses of the city,' the power so vested was confined in its exercise to taxation for ordinary municipal purposes, and the payment of debts contracted in the ordinary administration of municipal affairs. Debt created by the issue of bonds in aid of railroad construction was not within the purview of the charter power, but by the act of February 8, 1870, the power to tax to pay the interest on, and create a sinking fund for the redemption of, the bonds authorized to be issued thereunder was expressly given. This express grant fell with the abrogation of the act by the taking effect, on the 5th of May, 1870, of the new state constitution; and in Norton v. Taxing Dist., ante, 322, we have held that the bonds, upon coupons detached from which the judgments sought to be because here were rendered, were void, not because of a defective exercise of the power to issue them, but because of a total absence of such power. It is, however, contended that the coupons having passed into judgments, not only is all inquiry into their validity precluded, but also any denial of the power to tax to pay them granted by the act of February 8, 1870. As already remarked, the circuit court did not hold that the peremptory writ should go to command a levy to pay judgments as debts in that form, but based its order upon the inability of the respondents by reason of the judgments to assert the abrogation of the act in question. Under the legislation between the issue of the bonds in 1870 and this application in March, 1886, authority to levy taxes to pay debts of the character represented by these judgments, when uncompromised, did not exist at the latter date, so that plaintiff was remitted, in the assertion of a right to that remedy, to the time when the bonds were issued; and as the city had then no power to tax to pay them other than that derived from the act of February 8, 1870, the relator by his pleadings opened the facts which attended the judgments for the purpose of counting upon that act as furnishing the remedy which he sought. In this he in effect asked the court to order the levy of a tax to pay the coupons, and relied on the judgments principally as creating an estoppel upon a denial of the power to do so. Thus in vited to look through the judgments to the alleged contracts on which they are founded, and finding them invalid for want of power, must we nevertheless concede to the judgments themselves such effect, by way of estoppel, as to entitle the plaintiff ex debito justitioe to a writ commanding the levy of taxes under a statute which was not in existence when these bonds were issued?

The case of Harshman v. Knox Co., 122 U.S. 306, 7 Sup. Ct. Rep. 1171, is referred to by the learned judge holding the circuit court as in principle identical with this. In that case, under section 17 of the general railroad law of Missouri, the county court of a county was authorized to subscribe to the stock of railroad companies, though created by special charter, provided the requisite assent of qualified voters was duly obtained; and section 18 of the law provided that a special tax might be levied for the purpose of paying such bonds, without limit as to its amount. Under section 13 of the act incorporation the Missouri & Mississippi Railroad Company, taxes might be levied to pay bonds issued thereunder, but not to exceed one-twentieth of 1 per cent. upon the assessed value for each year. Harshman recovered judgment upon bonds and coupons issued by Knox county in part payment of a subscription made by said county to the capital stock of the Missouri & Mississippi Railroad Company, upon a petition setting forth that the subscription was authorized under the seventeenth section of the general railroad law. The judgment not being paid, he brought his proceeding by mandamus for the levy of a special tax to pay it, without limit as to the percentage; again alleging that the subscription, in part payment of which the bonds were issued, was authorized by vote under said seventeenth section. Upon the trial the circuit court required the relator to put in, with the record of the proceedings and judgment, the bonds; and it appeared that the latter recited that they were issued for a subscription authorized by the act incorporating the Missouri & Mississippi Railroad Company; and as the jury found that the relator had not proved that, despite the recitals in the bonds, they were issued under the general law, the court rendered judgment in favor of the respondents. But this court reversed that judgment upon the ground that, as 'it was part of the plaintiff's case to show, not merely the execution of the bonds by the county authorities, but that they were issued in pursuance of a law making them the valid obligations of the county,' and it having been averred that they were issued under section 17 of the general railroad law, (chapter 63, St. 1866,) that fact was confessed by the default, and its truth stood admitted on the record; and, as mandamus in such cases was a remedy in the nature of an execution, it could in that case be limited in its mandate 'only by that which the judgment itself declares.' And the court say, Mr. Justice MATTHEWS delivering the opinion: 'It may well be that, in a case where the record of the judgment is silent on the point, the original contract may be shown, notwithstanding the merger, to determine the extent of the remedy provided by the law for its enforcement; but that is not admissible where, as in this case, the matter has been adjudged in the original action. * *  * By the terms of the judgment in favor of the relator, it was determined that the bonds sued on were issued under the authority of a statute which prescribed no limit to the rate of taxation for their payment. In such cases, the law which authorizes the issue of the bonds gives also the means of payment by taxation. The findings in the judgment on that point are conclusive.'

But there the power to issue the bonds was not questioned. The controversy was as to the rate of taxation, depending upon which act they were issued under. If the original contract could have been resorted to, the decision might have been otherwise as to the rate; but it was held that that could not be done, because, from the averments which formed part of the complete judgment record, it appeared that the bonds were issued under one act rather than the other, while each of the acts fully authorized the issue, and gave the power to tax to pay. But in the case at bar it appeared from the judgment records, or, if not, from relator's petition, that the bonds were issued under an abrogated statute, and were consequently void, and that the respondents possessed no power to tax to pay them, because that power was given only by the statute, which had so ceased to exist. The power invoked is not the power to tax to pay judgments, but the power to tax to pay bonds, considered as distinct and independent; and therefore, when the relator is obliged to go behind his judgments as money judgments merely, to obtain the remedy pertaining to the bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and that no such remedy exists. Res judicata may render straight that which is crooked, and black which is white,-facit ex curvo rectum, ex albo nigrum, (Jeter v. Hewitt, 22 How. 352, 354;) but where application is made to collect judgments by process not contained in themselves, and requiring, to be sustained, reference to the alleged cause of action upon which they are founded, the aid of the court should not be granted when upon the face of the record it appears, not that mere error supervened in the rendition of such judgments, but that they rest upon no cause of action whatever. The judgment is reversed, and the cause remanded, with a direction to dismiss the petition.