Me. Chief Justioe Fullee
delivered the 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 wa's 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 Browns
ville,” 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 tbe, 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 éxpressly given.
This express. grant fell with the abrogation of the act by .the taking effect, on the 5th of May, 1.870, of the new state constitution, and in
Norton
v. Brownsville, ante, 471, •we'have held, that the bonds, upon coupons detached from which,- the judgments sought to be collected here were rendered, wete void, not because of a defective exercise oi 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 enquiry 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 Us 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 judg-. -ment#, 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 tlje act of February3, 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 estoppél upon a' denial of the power to do so.
Thus invited 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 débito justitim
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 County,
122 U. S. 306, 319, is referred to by the learned judge holding the Circuit Court as in principle indentical with this.
In that case, under § II of the General Eailroad 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 the qualified voters was duly obtained; and § 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 § 13 of the act incorporating the Missouri and Mississippi Eailroad Company, taxes might be levied to páy bonds issued thereunder, but not to exceed one twentieth of one 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 and Mississippi Eailroad Company, upon a petition setting forth that the subscription was authorized under the 17th section of the General Eailroad 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 17th section.. ,
Upon the trial tiie_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 a1 subscription authorized by the act incorporating “ the Missouri and Mississippi Bailroad 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 § 17 of the. General Bailroad Law, (c. 63, Stat. 1866,) that fact was confessed by the default, and its truth stood admitted on the record, and as mandamus in such case 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 prescribes 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.
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Me. Chief Justioe Fullee
delivered the 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 wa's 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 Browns
ville,” 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 tbe, 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 éxpressly given.
This express. grant fell with the abrogation of the act by .the taking effect, on the 5th of May, 1.870, of the new state constitution, and in
Norton
v. Brownsville, ante, 471, •we'have held, that the bonds, upon coupons detached from which,- the judgments sought to be collected here were rendered, wete void, not because of a defective exercise oi 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 enquiry 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 Us 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 judg-. -ment#, 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 tlje act of February3, 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 estoppél upon a' denial of the power to do so.
Thus invited 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 débito justitim
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 County,
122 U. S. 306, 319, is referred to by the learned judge holding the Circuit Court as in principle indentical with this.
In that case, under § II of the General Eailroad 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 the qualified voters was duly obtained; and § 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 § 13 of the act incorporating the Missouri and Mississippi Eailroad Company, taxes might be levied to páy bonds issued thereunder, but not to exceed one twentieth of one 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 and Mississippi Eailroad Company, upon a petition setting forth that the subscription was authorized under the 17th section of the General Eailroad 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 17th section.. ,
Upon the trial tiie_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 a1 subscription authorized by the act incorporating “ the Missouri and Mississippi Bailroad 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 § 17 of the. General Bailroad Law, (c. 63, Stat. 1866,) that fact was confessed by the default, and its truth stood admitted on the record, and as mandamus in such case 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 prescribes 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' dis- - tinct and independent, and therefore, when the relator is obliged to go behind his judgments as monéy 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.
lies judicata
may render straight that which is crooked, and black that’ which is white,
facit ex curvo rectum, ex albo nigrum, (Jeter
v.
Hewitt,
22 How. 352, 364;) 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 case remamded, with a direction to dismiss the petition.