government by Warren. He claimed the right to enter the whole, and upon that claim the parties went to a hearing. He might have asked to make his entry jointly with Van Brunt, but he did not. He is concluded by his election made at that time. Having been defeated upon his claim as made, he cannot, in the absence of fraud or surprise, come into court and ask relief upon another, which he might have urged then. Besides, he asks no such relief in his bill, which is the foundation of the present proceeding. He there claims a superior right of preemption to the whole, and not an equitable right to a joint ownership. It is again insisted that a decree should have been entered in favor of Warren, charging the heirs of Van Brunt as his trustees for all that part of the premises situated on the east side of the partition line. This claim was not made in the bill, but the contract of partition having been set out in the answers for the purpose of explaining the character of the occupancy of Van Brunt, Warren asked in his replication to be allowed the benefit of it in case he failed to maintain his right to the whole. He was willing to repudiate the contract if by so doing he could get an advantage, but if he failed in that, insisted upon its enforcement. But such a contract cannot be enforced to any extent. The preemption laws provided, at the time of this entry and purchase, that before any person should be allowed to enter lands upon a claim for preemption he must make oath that he had not directly or indirectly made any agreement or contract in any way or manner with any person, by which the title he might acquire by his purchase should inure in whole or in part to the benefit of any person except himself. Forfeiture of title to the land purchased, and of the money paid for it, was made the penalty of false swearing in this particular. An entry could not have been made, therefore, by Van Brunt in trust for Warren; and if it could not have been made, a court of equity will not decree that it was. All contracts in violation of this important provision of the Act are void and are never enforced. It has been so decided many times by the Supreme Court of Minnesota. St. Peter Co. v. Bunker, 5 Minn., 199; Evans v. Folsom, 5 Minn., 422; Bruggerman v. Hoerr, 7 Minn., 343; McCue v. Smith, 9 Minn., 259. We are satisfied with these decisions. In our opinion, there was no error in the decision of the government officers, or in the decree of the Supreme Court of Minnesota. The decree is affirmed. *1. There can be no jurisdiction in equity to enforce the payment of corporation bonds, until the remedy at law has been exhausted. 2. Where the law has provided that a tax shall be levied to pay such bonds, a mandamus after judgment to compel the levy of the tax in the nature of an execution or process to enforce the judgment is the only remedy. 3. The fact that this remedy has been shown to be unavailing, does not confer upon a court of equity the power to levy and collect taxes to pay the debt. 4. The power to levy and collect taxes is a legisto a court of equity and can only be enforced by a lative function in this country, and does not belong court of law, through the officers authorized by the Legislature to levy the tax, if the writ of mandamus is appropriate to that purpose. Legislature under whose authority they are as- Argued Apr. 14, 15, 1874. Decided May 4, 1874. ed States for the District of Louisiana. 1. We contend that the bill can be sustained on several separate grounds, which afford relief in equity. 2. That all the allegations of the bill taken together, admitted to be true by the demurrer, show that there is no remedy at law. 3. That if there is remedy at law, "it is not plain, adequate and complete;" or in other words, where it is not as practical and efficient to the ends of justice and to its prompt administration as the remedy in equity.' 4. That the parties defendant are the proper parties to defend the interests against which the bill proceeds. 5. That the proper parties are joined. 6. That the bill has but one distinct intendment, in which all the defendants have an interest, and is not multifarious. I. Assuming, argumenti gratia, that the Corporation is before the court, still existent and capable of being reached by service of process of law, we say: 1. The allegations as to the issuing of the bonds and coupons, under the authority of the Act of the Legislature of 1859; the passage of the Act of 1867, alleged to be invalid; the settlement under that Act by delivery of coupons and the issuance of new bonds, into which they were funded, and the postponement of the payment of the original bonds, all effectuated under the provisions of the Act declared invalid; the settlement having failed through error in the Cited 101 U. S., 519; 15 Kan., 251; 22 Kan., 745; motive; the right to be restored to the status in 51 Cal., 391-399; 84 Ill., 458. AMAND HEINE, MICHAEL HEINE, HIP. v. THE BOARD OF LEVEE COMMISSION. ET AL. (See S. C., 19 Wall., 655-661.) Jurisdiction in equity to enforce corporation quo, and the prayer therefor, all, under the principles of chancery jurisdiction, give foundation to the bill, and thereunder the right to an account of the actual indebtedness. Not being able to sue at law upon the existing coupons, nor upon those canceled, the complainants are necessarily driven to equity. But if it is assured that they could sue at law in one or the other cases, there is a hazard at least of a circuity of action, to ascertain under which law and which contract they have rights. *Head notes by Mr. Justice MILLER. bonds when exercised-power to levy and col- to levy tax to pay bonds or interest on bonds. See lect taxes, how enforced-taxes, when liens. NOTE.-Mandamus to compel city, town or county note to The Mayor v. Lord, 76 U. S., XIX., 704. The court of equity takes all the questions into its consideration, and restores, if need be, the canceled documents, and enters judgment on such as are exigible, or declares that the existing documents are available as securities. 2. The bill may be sustained, as thereby avoiding a multiplicity of actions. 3. The bill is for a specific performance of a contract. This contract is not alone for the payment of money at specific periods, but to assess and collect money to purchase unmatured bonds. The performance of such contract could not be enforced at law. The breach is not susceptible of measurement in damages. 4. If this bill is regarded as praying for the original process of mandamus, then we respectfully contend that, by the Process Act for the Circuit Court for Louisiana, the process of mandamus is an equitable remedy in that court. 4 Stat. at L., 62; Code of Pr., Part II., title I, ch. 10, secs. 1, 2; arts., 289, 830-836, 840-844. This remedy has been recognized in numerous instances similar in character, and in reference to rights analogous to those asserted in the present bill of complaint. Lallande v. Ins. Co., 9-La., 326; Hatch v. City Bank of N. Orleans, 1 Rob., 496; Watts v. Police Jury, 11 La. Ann., 141; Bassett v. Barbin, 11 La. Ann., 672; Cockburn v. Union Bank,13 La. Ann., 289; Hommerich v. Hunter, 14 La. Ann., 225. 5. The peculiar characteristics of the contract between the bond holders and the Corporation assimilate it to an equitable mortgage or a pledge. 12; Story, Eq. Pl., secs. 120, 121; Adair v. New Riv. Co., 11 Ves., 429. 5. If the Corporation is without officers, or dissolved, it has been held that equity will appoint trustees. 1 Dill., 113; Bacon v. Robertson, 18 How., 480 [59 U. S., XV., 499] Girard v. Philadelphia, 7 Wall., 1 (74 U. S., XIX., 53); Mumma v. Potomac Company, 8 Pet., 281. 6. The principles enunciated in the case of Supervisors v. Rogers, 7 Wall., 175 (74 U. S., XIX.,162), the provisions of the Acts allowing the issue of the present bonds, and the Code of Practice of Louisiana, would allow the course therein pursued by the agency of the marshal, and justify the prayer of the amended bill. III. The objection of multifariousness was not argued in the court a quo. It can only rest upon the basis of the difference of the two Acts of 1859 and 1867, as to the parties to order the levy in default of the Commissioners. In the first Act, the recorders and judge, and in the second Act, the judge. The objection can only be made by the recorders. The other parties are affected alike, whether the Act of 1859 or that of 1867 is the measure of complainant's rights. The point cannot be sustained by either of the parties. Story, Eq. Pl., sec. 285, a, 534. When the interests of the plaintiffs are the same, although the defendants may not have a co-extensive common interest, but their interests may be derived under different instruments, if the general objects of the bill will be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against 6. The demurrer admits the debt of com- all of them. plainants and their associates. II. It is contended by the defendants, that there are no Commissioners of the Levee Dis trict; that they have resigned; that they are incapable of acting. They first, in defense, filed disclaimers; Sutton that he was no longer pres ident, and the others that they were not com missioners. And they and the recorders aver want of interest. It was in view of those disclosures that the bill was amended. 1. If it should be admitted that the Corporation is without officers, by the effect of their resignations, the judicial being still exists. Curran v. Ark., 15 How., 312; Bacon v. Robertson, 18 How., 480. [59 U. S., XV.,499]. 2. We have attempted to bring the actual parties to this contract before the court. The complex state of facts seem to us to be proper subjects for the consideration of the court of equity. 3. In order to obtain any action by the court of equity, if the Corporation cannot, as a judicial person, be brought into court, then those persons who have represented the District, and whose places have not been filled, must be still regarded as representing the inhabitants of the District. 4. The persons in interest are the owners of the lands and the inhabitants of the District. These are too numerous to be made parties. We have made parties of those who may be regard ed as their representatives. This course is sustained by a long current of authorities. Campbell v. Mackey, 1 Myl. & C., 603; AttyGen. v. Cradock, 3 Myl. & C., 85; Atty-Gen. v. St. Johns Coll., 7 Sim., 241. IV. It was contended with much earnestness in the court a quo, that the Act of 1867 was a nullity; that the Act of 1859 was the measure of complainant's rights alone; that these rights terminated at the end of nine years; that thereafter no power existed to levy taxes. The principle asserted is, that a failure to perform a duty exonerates from all responsibility. A duty is imposed. A contract arises out of that injunction. The duty is unfulfilled. The contract is discharged. The cases referred to in reference to personal taxes have no relevancy. The towns or parishes are required in their condition to adjust their expenses to receipts of each year. They cannot impose upon a new inhabitant, as a personal tax, the rate of the previous year. In conclusion, we respectfully urge that courts of equity lend their aid wherever courts of law cannot afford plain, adequate and complete remedy; where remedy is not as practical and efficient to the ends of justice and to its prompt administration as the remedy in equity; where multiplicity of actions would be required to obtain the requisite assistance; when a suit for damages will not satisfy the full rights of plaintiff. Oelrichs v. Spain, 15 Wall., 228 (82 U. S., XXI., 44). Story, Eq. Pl., sec. 116, et seq.; Meux v. Malt Messrs. Warrick Tunstall, Samuel R. & by, 2 Swanst., 284; Cockburn v, Thompson, 16 C. L. Walker, J. A. Campbell and J. E. LeonVes., 328; Lanchester v. Thompson, 5 Madd.,ard, for appellees. 1873. Mr. Justice Miller delivered the opinion of | The court of chancery possesses no extraordi the court: This is a suit in chancery, brought by certain holders of bonds issued by what is called the Board of Levee Commissioners of the Levee District for the Parishes of Carroll and Madison, of the State of Louisiana. The Board thus described was made a quasi Corporation by the Legislature of Louisiana, with authority to issue the bonds and provide for the payment of interest and principal by taxes levied upon the real and personal property within the District. The bill alleges a failure to levy these taxes and to pay the interest on any part of said bonds; that the persons duly appointed Levee Com missioners have pretended to resign their office for the purpose of evading this duty, and that they have applied to the judge of the district court, who was by statute authorized to levy a tax on the alluvial lands, to pay the bonds if The the Levee Commissioners failed to do so. prayer for relief is: that the Levee Commission ers be required to assess and collect the tax necessary to pay the bonds and interest, and if after reasonable time they fail to do so, that the district judge be ordered to do the same; and for such other and further relief as the nature of the case requires. No judgment at law has been recovered on the bonds or any of them, nor any attempt to collect the money due by suit in the common law courts. A demurrer to this bill was sustained in the circuit court, and the plaintiffs appeal from the decree of dismissal rendered on that demurrer. The question thus presented by the present It has been case is not a new one in this court. decided in numerous cases, founded on the refusal to pay corporation bonds, that the appropriate proceeding was to sue at law and by a judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the corporation could be found liable to such execution and sufficient to satisfy the judgment. Then, if the corporation had authority to levy and collect taxes for the pay. ment of that debt, a mandamus would issue to compel them to raise by taxation the amount necessary to satisfy the debt. Von Hoffman v. Quincy, 4 Wall., 535 [71 U. S., XVIII., 403]; Supervisors v. U. S., 4 Wall., 435 [71 U. S., XVIII., 419]; Riggs v. Johnson Co., 6 Wall., 166 [73 U. S., XVIII., 768]; Galena v. Amy, 5 Wall., 705 [72 U. S., XVIII, 560], and many other cases in this court, and especially the case of Walkley v. Muscatine, Wall., 481 [73 U. S., XVIII., 930]. Unless, then, there is some difficulty or ob struction in the way of this common law remedy, chancery can have no jurisdiction. nary powers to compel persons to submit to This proposition was directly in issue and distinctly settled in the case of Rees v. Watertown [ante, 72]. at the present term. In that case the plaintiff had obtained judgment, issued execution, which was returned nulla bona, and had then procured a writ of mandamus, ordering the aldermen of the city to levy the tax. The aldermen resigned before the writ could be served, with intent to evade its effect. After other aldermen were elected, a new writ was served on them, and they in turn resigned, after an order to show cause why they should not be punished for a contempt in failing to obey the writ of mandamus. Notwithstanding all this, we held that chancery had no jurisdiction, by a direct proceeding, to levy the tax or to seize the property of the citizens and sell it for the satisfaction of the judgment. That case was much stronger than the one before us, and is unquestionably decisive of this. It is very clearly shown that the total failure of ordinary remedies does not confer upon the court of chancery an unlimited power to give relief. Such relief as is consistent with the general law of the land, and authorized by the principles and practices of the courts of equity, will, under such circumstances, be administered. But the hardship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent and assume an unregulated power of administering abstract justice at the expense of well settled principles. It is attempted in argument to support this exercise of authority by reference to some of the acknowledged grounds of equity jurisdiction, But while equity has, in One of these is the doctrine of specific performance of contracts. some cases, enforced in this manner a contract to deliver specific stocks, there is no such case here. The plaintiffs have their bonds or stocks. And in this respect the case is one of It is the money due on them which they want now. compensation in damages for a failure to pay the money due on the bond. All that plaintiffs can get is this money and interest, and that is precisely what a court of law would give them. The almost universal rule on the subject of specific performance, as regards contracts other than those for real estate is, that where adequate compensation can be made by the damages recoverable at law, equity will not interfere. It is said in argument that plaintiffs have a lien upon the taxable property of the district for the payment of these bonds, and that equity always enforces liens where no other mode of Whether this be the enforcing them exists. It is said that, by reason of the resignation of Nor the Levee Commissioners, no suit can be sus- true doctrine of a court of equity to the full extained against them so as to procure a judgment tent here claimed, we need not decide. on which the mandamus may ultimately issue. need we decide whether taxes once lawfully But the present suit is brought against these levied are, until paid, a lien on the property very men in their official character, and no dif- against which they are assessed, though it is ference can be seen in their capacity to be sued laid down in the very careful work of Judge in a court of law and a court of equity. The Dillon, that taxes are not liens upon the propsame service of process is required in each. The erty against which they are assessed, unless same officers serve the process, and the juris- made so by the charter, or unless the corporadiction of the court over the person is governed tion is authorized by the Legislature to declare by precisely the same principles in each case. I them to be liens. 2 Dill. Corp., 659. But here U. S.. Book 22. 15 225 no taxes have been assessed except those which have been released by the bond holders accept ing new bonds for the interest of the year so assessed. And it is too clear for argument that taxes not assessed are no liens, and that the obligation to assess taxes is not a lien on the prop erty on which they ought to be assessed. This was one of the points urged and overruled in the case of Rees v. Watertown. The court is asked, if it should fail to find any principle peculiar to courts of equity on which the bill can be sustained, to treat it as a petition for the writ of mandamus. This would ignore the well established principle of the Federal Courts that the line between the equitable and common law jurisdiction must be maintained, and that a suit must be of the one character or the other, and be prosecuted by pleadings and processes belonging to each class of jurisdiction. Mandamus is essentially and exclusively a common law remedy, and is unknown to the equity practice. But if this were otherwise, it is the well settled doctrine of this court that the circuit courts cannot use the writ of mandamus as an original and independent remedy, but are limited to its use as a process in the enforce ment of rights when jurisdiction has been already acquired for other purposes. In fact, in the class of cases in which it is here sought,it is a writ in execution of the judgment of the court already rendered, and can only be used because it is an appropriate process for that purpose. McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat., 601; Kendall v. U. S., 12 Pet., 526; Riggs v. Johnson Co., 6 Wall., 197 [73 U. S., XVIII., 776]; Secretary v. McGar rahan, 9 Wall., 311 [76 U. S., XIX., 583]; Bath Co. v. Amy, 13 Wall., 244 [80 U. S., XX., 539]. The circuit court cannot, therefore, issue the writ if the bill could be treated merely as a petition on the common law side of the court, praying for that remedy. There does not appear to be any authority founded on the recognized principles of a court of equity on which this bill can be sustained. If sustained at all it must be on the very broad ground that because the plaintiff finds himself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men, that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which, in the of perfection of human nature, often admits of no redress. The holder of a corporation bond must in common with other men, submit to this calamity, when the law affords no relief. The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, state or national. In the case before us, the national sovereignty has nothing to do with it. The power must be derived from the Legislature of the State. So far as the present case is concerned, the State has delegated the power to the Levee Commissioners. If that body has ceased to exist, the remedy is in the Legislature either to assess the tax by special statute or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal Court. It is unreasonable to suppose that the Legislature would ever select a Federal Court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal Government of the legislative functions of the state government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee. In the cases of Walkley v. Muscatine and Rees v. Watertown, already cited, we have distinctly refused to enter upon this course, and we see no reason in the present case to depart from the well considered judgment of the court in those cases, especially the latter. The decree of the Circuit Court is affirmed. Dissenting, Mr. Justice Clifford and Mr. Justice Swayne. Mr. Justice Bradley did not sit in this case. Dill., 323; 3 Wood, 4; 1 McCrary, 370: 52 Wis., 428 ;Cited-92 U. S., 615; 102 U. S., 516; 2 Flipp., 106; 5 15 Fla., 384; 21 Am. Rep., 295. THE BOARD OF COMMISSIONERS OF BOISE COUNTY AND BEN. T. DAVIS,. Piffs. in Err., v. JOHN GORMAN. (See S. C., 19 Wall., 661-665.) Supersedeas, when proper-effect of-removal from office. 1. Under the provisions of the Act of 1872, upon the filing of the bond upon a writ of error, within sixty days from the time of the entry of the judgment, a supersedeas may be obtained. 2. Such a supersedeas, however, stays proceedings only from the filing of the bond. It prevents further proceeding under an execution which has been issued, but does not interfere with what has already been done. In order that a writ of error may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. O'Dowd v. Russell, 14 Wall., 405 [81 U. S., XX., 858]. Execution cannot issue upon the judgment un til the expiration of ten days, exclusive of Sundays, from the entry thereof. If the writ of error and bond are filed before the expiration of the ten days, no execution can issue so long as the case in error remains undisposed of. After the expiration of the ten days an execution may issue. Notwithstanding this, under the provisions of the Act of 1872, 17 Stat. at L., 198, sec. 11, upon the filing of the bond within sixty days from the time of the entry of the judgment, a supersedeas may be obtained. Such a supersedeas, however, stays proceedings only from the filing of the bond. It prevents further proceeding under an execution which has been issued, but does not interfere with what has already been done. In this case the record shows that the judg ment was actually entered on the 20th day of January. The entry as made was read in court on the morning of the 21st and the record signed signed by the judge until the 11th of December. Before any entry could be made it was neces sary that the judge should pass upon its form. It was, therefore, quite right to delay the appeal until the exact character of the decree could be known. Here, however, the form of the judgment was settled upon the announcement of the decision, and it was entered accordingly. But the writ of restitution was not served until after the expiration of ten days from the 21st, and it does not appear that it was actually delivered to the sheriff for service before that time. There is nothing to prevent the preparation, by the clerk, of an execution before the expiration of the ten days. It cannot be issued before, and it is not issued until it is placed beyond the control of the clerk himself. So long as it remains with him, or under his control, it is like any other paper in his office. We think the motion must be denied, and in accordance with the request of the parties made at the argument, the case is dismissed. Cited-93 U. S., 89; 94 U. S., 52; 33 Mich., 449. in Err., v. EDWARD B. TALCOTT. (See S. C., 19 Wall., 666-679.) Michigan Act, for aid to railroads, constitutional -public purpose-state decision, when not conclusive-bonds, how affected by. 1. The Michigan Act of March 22, 1869, to enable any township, city or village to pledge its aid, by ized under and by virtue of the laws of that State, loan or donation, to any railroad company organis not in conflict with the Constitution of the State. 2. A statute is not to be pronounced void upon tution be clear, and the conclusion that it exists, this ground, unless the repugnancy to the Constiinevitable. Every doubt is to be resolved in support of the enactment. by the judges, but it was ordered to be made THE TOWNSHIP OF PINE GROVE, Piff. on the 20th. The ten days, exclusive of Sundays, prescribed by the Act of Congress for delay of execution, expired on Saturday, the 31st of January. On Monday, the 2d of February, a majority of the judges of the court directed the clerk to issue a writ of restitution to carry the judgment into effect. On the same day the Chief Justice of the court allowed a writ of error and signed the necessary citation. А сору of the writ of error was filed in the clerk's office, and the writ and citation actually served upon the defendant in error before the clerk had completed the preparation of the writ of restitution. After he had completed its preparation he handed it to the attorney for the defendant in error, who had previously been served with the citation. No supersedeas bond was filed with the clerk on the 2d, and no notice was given that any had been approved. On the morning of the 3d of February the writ of restitution was served and Davis removed from his office. After this, and on the same day, a bond approved by the Chief Justice was left in the clerk's office by him. It nowhere appears from the record when this bond was approved. It bears date the 2d of February, but there is no certificate of the time when the approval was entered. It is certain, however, that it was not filed in the clerk's office until after service of the writ of restitution. The writ of error operated as a supersedeas only from such filing. That was too late to prevent the removal of Davis from his office in pursuance of the authority of the judgment; and we cannot now order him to be restored. It is claimed, however, that as the record of the judgment was not signed by the judges of the court until the 21st, the ten days did not commence to run until that date, and we are referred to the case of Silsby v. Foote, 20 How., 290 [61 U. S., XV., 822], as establishing such a rule. In that case the decision was actually rendered on the 28th of August, but the decree was special in its terms, and was not settled or road corporation is private, its work is public, as 3. The Act is for a public purpose. Though a railmuch so as if it were to be constructed by the State. to the domain of general jurisprudence, this court 4. Where the question before this court belongs is not bound by the judgment of the courts of the State where the case arose. It must hear and determine for itself. bonds, by an implication equivalent in effect to an 5. Where the Legislature affirmed the validity of express declaration, and when they were authorized and issued neither of the other departments of them, but the acquiescence in their validity was the government of the State lifted its voice against universal, this court will not follow subsequent state decisions declaring them invalid. [No. 295.] States for the Western District of Michigan- ERROR to the Circuit Court of the United Mr. James A. Garfield, for plaintiff in low state decisions. See note to U. S. ex rel. Butz v. City of Muscatine, 75 U. S., XIX., 490. NOTE.-In what instances U. S. Courts do not fol |