[501]*501Mb. Chief Justice Waite'
announced the conclusions reached by the- court as follows: ■ — ■
1. Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing-places, fire-engines, hose and hose-carriages, engine-houses, engineering instruments, and. generally everything held for governmental purposes, cannot be subjected to the payment.of the debts of the city. Its public character forbids' such an appropriation-. Upon the repeal of the charter of the city, such property passed under the immediate control of the State, the power once delegated to the city in that,behalf having been withdrawn.
. 2. The private property .of individuals with.in the limits of the territory of' the city cannot be Subjected to the payment-of the debts of the city, except through taxation. The doctrine of some of the States, that such property can ‘be reached directly on execution against the municipality, has-not-been generally accepted.
3. The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legislature.
4. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to. the special requirement of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can only be collected under authority from the legislature. If no such authority exists, the remedy is by' appeal to the legislature, which alone can grant relief. Whether taxes levied in .obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed "hy a court of chancery, if there be no public- officer charged with, authority from the legislature to perform that duty, is not decided, as the case does not require it.
5. The receiver and back-tax collector appointed under the authority of the act of March 13, 1879- is a public officer, clothed with authority from the legislature 'for the collection of the taxes levied before the repeal of the charter. The funds [502]*502collected by him from taxes levied under judicial direction cannot be'appropriated to any other uses than those for which they were raised. • He, as well as- any other agent of the State charged with the duty of their collection, can be compelled by appropriate judicial orders to proceed with the collection of ■ such taxes by sale of property or by suit or in any other way authorized by law, and- to apply the proceeds upon the judgments.
6. The bills in this case cannot be amended so as to obtain relief against the receiver and back-tax collector, withoht making an entirely new suit. They were not framed with a view to'any such purpose.
7. The decree of the court below is reversed.
8. The cituse is remanded, with instructions to dismiss.the bills, without prejudice. If, on the settlement of the accounts of the receiver herein, it shall be.found he has any money in his. hands collected on taxes levied under judicial direction to pay judgments in favor of any, persons who have become parties to this suit, an order may-be made directing its appropriation to the'payment of such judgment. , ’
Upon the first, second, third, and fifth of these propositions' the judgment of the court is unanimous". Upon-the fourth, .sixth, seventh, and eighth it is, by a majority only.
Mr. Justice Field
delivered the following opinion for himself, Mr. Justice Miller, and Mr. Justice Bradley.
Mr.. Justice Miller, Mr. Justice Bradley, and myself concur in the judgment rendered, but, as tbe judgment is not accompanied by a, statement, of the reasons on which it is founded, I proceed to state those which have controlled us.
In January, 1879, the city of Memphis, in the State .of Tennessee, was financially, in a bad condition. She had been for many years a municipal corporation,' and was invested with the ordinary powers of such, bodies to make contracts and' incur obligations for municipal purposes, and to ■ levy and collect taxes to meet-her expenditures. Her authorities were' also at. different times specially 'empowered by tbe legislature of the State to subscribe" for stock in railroad corporations, to. aid in the construction of linés of railway leading to and" from [503]*503the city, and to issue interest-bearing bonds .for the amount subscribed; also to issue bonds of like character to raise the means to erect water-works, construct pavements,' and make “any public improvements” that might be necessary, and to acquire property for the public use of the city.. Indeed, the powers conferred at various times upon the authorities to undertake public works, and engage in enterprises for the benefit of the city, were as large as the supposed necessities of a municipality with great expectations of. future growth could suggest; and these powers appear to have been Exercised with a liberality, proportionate tó the expectations. Taxes were levied to 'meet the consequent expenditures of the city and the interest on her bonds, but these were not always enforced with the readiness with which, the obligations were incurred..
The record shows that for several, years preceding 1879 not more than three-fifths of the annual taxes were collected. Whether this arose from the viciousness of the system of .taxation' adopted, or- the inefficiency of the officers of collection,- is immaterial. Probably it arose partly from both causes. The natural-result followed: the revenues received became insufficient to meet the just claims of creditors; obligations were not paid as they matured ; coupons for interest on bonds were not provided for; the city was in default for much of the princi-pal and all of the interest'of her indebtedness.: she was insob, v.ent. Suits were soon commenced against her by creditors : some in the Federal courts, some in the State courts; and from the Federal courts in several cases a mandamus was issued to the authorities of the city, to levy a special tax for the payment of judgments recovered. With t.axes uncollected, debts maturing, and both principal and interest unprovided for; with numerous suits commenced and more threatened; with credit gone and the property of her citizens already subjected to burdens difficult to be borne, =— the city was, in., a condition out of which she was almost helpless, to extricate herself.
While the city was thus burdened with debts and pursued, by creditors, the State interfered; and on the 29th of January, 1879, repealed the charter of the city, took the immediate con[504]*504trol and custody of her public property, and afterwards assumed the collection of the taxes levied, and their application to the payment of her indebtedness.
The repealing act was in terms general, and applied to all municipal corporations in the State having thirty-five thousand inhabitants at the date of its passage, to be ascertained by the' governor, and declared by his proclamation. The city of Memphis had that number of inhabitants ; and it was so proclaimed by the governor. The act not only repealed the charters of all such corporations, with their amendments, but declared that all municipal offices, held under them, were abolished; that the population within their territorial limits were resolved back into the body of the State; that all power of taxation in any form previously invested in- their authorities was withdrawn and reserved to the legislature; and that the public buildings, squares, promenades, -wharves, streets, alleys, parks, fire-engines, -hose and carriages, engine-houses, engineer instruments, and all other property, real and personal, previously used for municipal purposes, were transferred to the custody and control of the State, to remain public property as previously it always had been.
. On the same day- with the passage of the repealing act, the legislature passed another act to 'establish taxing districts in the State, and to provide the means for-their local government. . It declared that the several communities embraced in the territorial limits of the- repealed corporations, and of -such other corporations as might surrender their charters under the act, were created taxing districts in order to. provide the means of local government for theii; peace, safety, and general welfare; that the necessary taxes for the support of the governments thus established should be imposed directly by the General Assembly, and-not otherwise; that in administering the affairs and providing the means of local government the following agencies and instrumentalities were established,— namely, a board of fire and police commissioners; a committee on ordinances or local laws, to be known as the legislative council of the taxing district; a board of health, and a board of public works ; .and it prescribed in detail the duties and powers of these local agencies. The act prohibited the [505]*505commissioners from issuing any bonds, notes, scrip, or other evidences of indebtedness, or from contracting for work, material, or services in excess of the amount levied for them for that year; and declared that no property, real or personal, held by them for public use should ever be subject to execution, attachment, or seizure- under any legal process for any debt created by them; that all taxes due, or moneys in the hands of the county trustee, or on deposit, should be exempt from seizure under attachment, execution, garnishment, or other legal process. It also declared that no writ of mandamus or other process should lie to compel them or other governing agencies to levy any taxes, and that neither the commissioners, nor trustee, nor the local government should' be held to pay or be liable for any debt created by the extinct corporations, and that none of the taxes collected under the act should ever be used for the payment of any’of said debts. The act also declared that all the property previously used by the corporations for purposes of government was transferred to the custody and control of the board of commissioners of the taxing districts, to remain public property for the uses to which it had previously been applied, and that all indebtedness for ■taxes or otherwise, whether in litigation or' not, due to the extinct municipalities, should vest in and become the property of the State, to be disposed of for the settlement of their debts as should thereafter be provided by law.
On the 13th of March following such provision was made. By an act passed by the legislature on' that day, the governor was directed to appoint an officer for municipal corporations, whose charters had been repealed under the first act mentioned, or might be subsequently surrendered, to be known as a receiver and back-tax collector. It required him to take possession of all books, papers, and documents pertaining to-the assessment and collection of taxes, which had been levied at the time of the repeal of the -charters. It ordered him to file a bill.in the Chancery Court of the county in which the-corporation was situated, in the name of the State, in behalf of all creditors against all its delinquent tax-payers, and provided that taxes assessed prior to 1875 might be settled in the valid indebtedness of the extinct municipality, whether due or. [506]*506not, and that the receiver should receive evidences of such indebtedness at certain designated rates.. It also prohibited him from coercing payment of. a greater sum than one'-fifth of the taxes in arrears annually, so as to distribute the whole through five equal annual instalments, commencing from his appointment and qualification. It authorized the Chancery Court to-.enforce all liens upon property for the payment of takes, and .to order all sales necessary for their collection ; and to settle and adjust all equities, priorities, and liens; and to give to thS defendants and creditors all the relief which might be given if there were as many separate suits as there- were creditors añd- delinquent tax-payers. It. provided that the ¡taxes as collected should be paid into the- State treasury, and be paid out to parties entitled to receive them, as adjudged by the. Chancery Court, upon the warrant of the receiver, countersigned by the Chancellor. It required the receiver, in paying ■the money collected into the treasury, to' distinguish the sources whence -it was derived, showing the amount from each-special and general tax, so that they might be’ kept separate, and be paid out to creditors according to the priority, lien, or equity, determined! The act was accompanied with a proviso that it should not interfere with any vested rights entitling parties to a speedy collection. On the passage of the repealing act there was a large amount of uncollected taxes, which had been levied Upon property in the city of Memphis, such as taxes to pay certain specified creditors under writs of mandamus, a special tax to pay interest upon bonds, a special sinking-fund tax, a school tax, a wharfage tax, a tax upon merchants to pay police and firemen, a tax to pay interest upon bonds issued to certain railroads, and-a tax for general purposes of government. Under the provisions of the act of March 13, the defendant, Minor Meriwether, was appointed by the governor receiver and' back-tax collector of-that city. He accepted the appointment, and proceeded . at once to the performance of his duties.
The day 'previous to the passage of the act repealing the. charter of Memphis, and probably in anticipation of the contemplated legislation of the State, Robert Garrett and others, creditors of the corporation, filed a bill against the city, al[507]*507leging in substance that, the city owed them over $100,000, upon much of which they had recovered judgments and obtained writs of mandamus to compel the levy of taxes for their payment; that various writs of .mandamus had been issued against the city for over $850,000; that through the malfeasance and incompetency of its officials only about three-fifths of the taxes imposed had been collected,’ and that this practice had run through a series of years, resulting in delinquent taxes of about $2,500,000; that the taxes levied, pursuant to the writs of mandamus issued, constituted a trust fund which could only be used for the payment of the judgments; that the city was a trustee for the same, and, although requested to press the collection, had neglected to do so, and that this neglect was a fraud on the. complainants relievable in a court of equity.
It also set up that the legislature, by an act of the 19th of March, 1877, had authorized the Chancery Court of the State to appoint a receiver to take charge of the affairs of the city, upon application of creditors owning demands against her exceeding $100,000, when it was made to appear that writs of mandamus had been issued against her to enforce debts against the city amounting to over $850,000; and averring that the court had jurisdiction, both upon general principles of jurisprudence and by authority of that act, the bill prayed the appointment of a receiver to take charge of the assets of the city, including its tax-books and bills for unpaid .taxes, and to collect the taxes levied, for the purpose of paying the judgments.
After the repealing act was passed, the complainants filed a supplementary bill setting up the passage of- the act, alleging its invalidity, and repeating its prayer for the appointment of a receiver.
Subsequently several other parties instituted like suits against the city. All the suits were, in February, 1879, consolidated into one without objection, and by amendment to it, in April following, Meriwether, the receiver appointed by the governor, was made a defendant, as also sundry parties upon whose property taxes had been levied. With the consolidation a receiver of the assets and property of the city was appointed [508]*508to hold and dispose of the same under the direction of the court; and he immediately qualified, and proceeded to take possession, ,so far as practicable, of the property and assets, and to exercise the powers with which he was invested.
To the bill as consolidated and amended a demurrer was interposed by the defendants, upon which several questions arose, on which the'judges of the Circuit Court were divided in opinion. The prevailing opinion of the presiding judge being against the demurrer, it was overruled, and the defendants electing to stand upon it, judgment final was rendered in favor of the complainants, from which the-defendants have appealed to this court.
The receiver appointed by the court was invested with larger powers than probably any officer of a court was ever before intrusted with. He was required to demand, receive, and take possession of all the assets and property of the city of Memphis, including real and personal property, and debts due to it and taxes which had been previously levied, except the taxes appearing on the tax-books for the year 1878, for which special provision was made; and except, also, the public highways of the city, the public squares, the public landings and wharves, the- hospital, and certain property used in connection with it, and property of the fire,-engineer, and police-departments, and the taxes, levied for the support of the public. schools, which excepted articles he was not to take possession of or interfere with until the further order of the court. It does not appear that the court entertained any doubt that it could at some future time place all this public property in the hands of its- receiver, as its subsequent decree shows. The receiver was also required to-take possession of all the-tax-books of the city on which unpaid taxes were charged, except the tax-books for the year 1878; and also all the safes, books, papers, desks; office furniture, and other property belonging to the offices of mayor, comptroller, register, treasurer, tax-collector, inspector, and city attorney, necessary to the discharge of his duties as receiver, and of the buildings in which the general council of the city had previously assembled, and the property in and belonging to such buildings not; previously excepted, and keep them subject to the order of the court; and parties [509]*509having possession or control of such property, or any part of it, were required to surrender the same to him on demand.
By the order appointing the receiver, the trustee of Shelby County, within which the city of Memphis is situated, was required to pay over to him all the moneys he had on hand collected for taxes levied by the city for the year 1878, except such as were levied for the' support of public schools. The former treasurer of the city was also required, with the like exception, to turn .over to the receiver, on demand, all the money in his hands or on deposit in the German National Bank, received for the city. The mayor of the city was also to pay over to him any money, and deliver to him any property, belonging to the city, and the papers and-vouchers necessary for the discharge of the receiver’s duties; and the clerk of the county of Shelby was also to pay over any moneys received by him on account of the redemption of property sold for taxes due the city. The' receiver was also required to lease, the property of which he might have possession from • month to month, and to collect the rents and hold the same subject to the order of the court; and, if he found it necessary, he was authorized to bring actions at law or suits in equity against' parties indebted to the city, or for any tax or taxes appearing on the tax-books, and to enforce any specific liens on the property, real or personal, for the payment of such' taxes; and to employ as many clerks and assistants as he might deem necessary; to make use of the buildings and offices- in the city hall, and of such safes, desks, tables, chairs, and other furniture and property of the city he might need; to buy and pay for necessai'y books, stationery, fuel, and lights, and whatever else might be necessary to fit his office or offices for use to enable him to discharge his duties; to insure any property, real or personal, which might come into his hands, when he thought prudent to do so; to employ one or more attorneys, if necessary, to conduct the prosecution or defence of suits that he might find necessary to bring or defend under the authority conferred by him. Other powers were also vested in the receiver, but what has already been" said is enough to show the extraordinary character of those conferred and of the duties iipposed upon him. He ■ was, in fact, in[510]*510vested with the administration of the financial affairs of the city, so far as might be necessary for the- collection of- taxes and debts and disposing of the property of the city to pay the claims of creditors. Executive and administrative functions were invested in him which, it has not' been supposed, could adequately be performed by the same person in any government of a city properly conducted.
The decree adjudged that the Complainants in the several suits, and other creditors who had made themselves parties by leave of the court, or who might thereafter make themselves parties, should recover from the city the several debts due them respectively, the amounts to be thereafter fixed by the court, and that all the assets and property of the city, “ of every description,” or so much thereof as might be necessary for that purpose, including- taxes previously assessed and remaining unpaid and due the city, should be applied to the payment of their debts.. The decree also adjudged that the receiver should retain possession of- all the assets and property, books, papers, and writings previously placed in his 'hands to be disposed of' as the court might order in the progress of the suit, and that he proceed to collect the assets and property m the manner directed by previous orders for the payment of the debts. It also enjoined the defendant, Minor Meriwether, the receiver and back-tax collector appointed by the governor of the State, from taking possession of, collecting, or. attempting to collect, suing for, or in any way interfering with, the assets and property, books, papers, and writings in the possession of the receiver of the court. And the decree further adjudged that all the property within the limits of the territory of the city of Memphis was liable and might be subjected to the payment of all the debts 'of the city,'and-that such liability would be enforced thereafter, from time to time, in such manner as the court might direct.
This decree is manifestly erroneous in its main provisions. It proceeds upon the theory that the property of every description held by the municipality at the time of its extinction, whether held in its own right or for public uses, .including also in that designation its uncollected taxes, were chargeable with the payment of its debts, and constituted a trust fund, of which [511]*511tbe Circuit Court would take possession and enforce the trust; and that the private property of the inhabitants of the city' wat also liable, 'and could be subjected by the Circuit Court to the payment of its debts.' In both particulars the theory is radically wrong.
The right of the- State to repeal the chárter of Memphis cannot be questioned. .Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text-writers. There is no contract .between the State and' the public that the charter of a city shall not be at all times subject to legislative control. All persons' who deal with such bodies are conclusively presumed to act upon knowledge of the power of the legislature. . There is no such thing as. a vested right held by any individual in the grant of legislative power to them. United States v. Railroad Co., 17 Wall. 322; Commissioners v. Lucas, Treasurer, 93 U. S. 108; People v. Morris, 13 Wend. (N. Y.) 325; Philadelphia v. Fox, 64 Pa. St. 169; Montpelier v. Past Montpelier, 29 Vt. 12; Angell & Ames, Corp. (10th ed.), sect. 31; Dill. Mun. Corp., sect. 30; Cooley, Const. Lim. 192, 193. By the repeal the legislative powers' previously possessed by the corporation of Memphis reverted to the State.. A portion of them the State immediately vested in the new government of the taxing district, with many restrictions on the creation of indebtedness. A portion of them the State retained; it reserved to the legislature all'power of taxation. It thus provided against future claims from .the improvidence or recklessness of the new government, The power of the State to make this change of local government is.incontrovertible. Its subsequent provision for tbe collection' of the taxes of the corporation levied before the repeal of its charter, and - the appropriation of the proceeds to the payment of its debts, remove from the measure .any imputation' that it was designed to enable the city to escape from its .just liabilities.
But while the charter of a municipal corporation may be [512]*512repealed at the pleasure of the legislature, where there is no inhibition to its action in the Constitution of the State, the lawful contracts of the corporation, made whilst it was in existence, may be subsequently enforced against property held by it, in its own right, as hereafter described, at the time of the repeal. In this respect its position is not materially different from that of a private individual, whose property must, upon his decease, go to the satisfaction of his debts before those who succeed to his rights can share in its distribution. The language used by us in the case of Broughton v. Pensacola on this subject is quoted by counsel, under the impression that it tends to sustain the position of the complainants. We there said: — -
“ The ancient doctrine that, upon the repeal of a private' corporation, its debts were extinguished, and its real property reverted to its grantors, and its personal property vested in the State, has been so far modified by modern adjudications that a court of equity will npw lay hold of the property of a dissolved corporation, and administer it for the benefit of its creditors and stockholders. The obligation of contracts, made whilst the corporation was in existence, survives its dissolution, and the • contracts may be enforced by a court of equity, so far as to subject, for-their satisfaction, any property possessed by the corporation at the time. In the view of equity, its property constitutes a trust fund, pledged to the payment of the debts of creditors and stockholders ; and if a municipal corporation, upon the surrender or extinction in other ways of its charter, is possessed of any property, a court of equity will equally take possession- of it for the benefit of the creditors of the corporation.” 93 U. S. 266, 268.
,We approve of the doctrine stated in this citation. It expresses what we believe to be sound law. It means that whatever property a municipal corporation holds subject to the payment of its debts, will, alter its dissolution, be so administered and applied by a court of equity. It does not undertake to determine what is to be deemed the property of a municipal corporation, which, after the extinction of its charter,- is thus applicable. In the case from which it is taken, the bill alleged that the city of Pensacola, upon the surrender of its [513]*513charter, did not possess any property, and, of course, the question here raised could not have been before the court. The question' there was as to the continuation of the city’s liability under a new organization.
What, then, is tibe property'of a municipal corporation, which, upon its dissolution, a court of equity will lay hold of and apply to the payment of its debts? We answer, first, that it is not property held by the corporation in trust for a private charity, for in such property the corporation possesses no' interest for its own uses ; and, secondly, that it is not property held in trust for the public, for of such property the corporation is the mere ;agent of the State. In its streets, wharves, cemeteries, hospitals, court-houses, and other public buildings, the corporation has no proprietary -rights distinct from the trust for the public. It holds them for public use, and to no other use can they be appropriated without special legislative sanction. It Avould be a perversion of that trust to apply them to other uses. The courts can have nothing to do with them, unless ’ appealed to on behalf of the public to prevent their diversion from .the public use. The dissolution of the charter does not divest the trust so as to subject property of this kind to a liability from which it was previously exempt. Upon the dissolution, the property passes under the immediate control of the State, the agency 'of the corporation then ceasing. 2 Dillon, Mun. Corp., sects. 445, 446; Schaffer v. Cadwallader, 36 Pa. St. 126; City of Davenport v. Peoria Marine Fire Insurance Co., 17 Iowa, 276; Askins v. Commonwealth, 1 Duv. (Ky.) 275; The President, &c. v. City of Indianapolis, 12 Ind. 620.
In the third place, we say that' taxes previously levied, but not collected on the dissolution of the corporation, do not constitute its property; and in the absence of statutory authority they- cannot' be subsequently collected by a court of equity through officers of its own appointment, and applied to the payment of the creditors of' the corporation. Taxes are not debts. It Avas so held by this court in the case of Oregon v. Lane County, reported- in 7th Wallace. Debts are obligations for the payment of money founded upon contract, express or implied. Taxes are imposts levied for the support of the gov[514]*514ernment, or for some special purpose authorized by it. The consent-of the tax-payer is not necessary to their enforcement. They operate in invitum. Nor is their .nature affected by the fact that in some States — and we believe in ‘Tennessee — an action of debt may be instituted for their recovery. The form of procedure cannot change their character. City of Augusta v. North, 57 Me. 392; City of Camden v. Allen, 2 Dutch. (N. J.) 398; Perry v. Washburn, 20 Cal. 318. Nor are they different when levied under writs of mandamus for the payment of judgments, and when levied for the same purpose by statute. The levy in the one case is as much by legislative authority as in the other. The writs of mandamus only require the officers of assessment and collection to obey existing law. In neither case are the taxes liens upqn property unless made so by statute. Philadelphia v. Greble, 38 Pa. St. 339; Howell v. Philadelphia, id. 471; 2 Dillon, Mun. Corp., sect. 659. Levied only by authority of the legislature, they can be altered, postponed, or released at its pleasure. A repeal of the law, under which a tax is levied, at any time before the tax is collected, generally puts an end to the tax, unless provision for its continuance is made in the repealing act, though the tax may be revived and enforced by subsequent legislation. We say generally, for there are some exceptions, where the tax provided is so connected with a contract, as the inducement for its execution, that the courts will hold the repeal of the law to be invalid as impairing the obligation of the contract. It is not of such taxes, constituting the consideration of contracts, that we are speaking, but of ordinary taxes -authorized for the support of government, or to meet some special expenditure: and these, until collected, — being mere imposts of the government, 'created and continuing only by the will of the legislature, — have none of-the elements of property which can be seized like debts by attachment or other judicial process and subjected to the payment of creditors of-the dissolved corporation. They are in no proper sense of the term assets of the corporation. They are only the means provided for obtaining funds to support its government and pay its debts, and disappear as such means with the revocation of the charter, except as the legislature may otherwise provide. When they are collected, the moneys [515]*515in the hands of the collecting officer may be controlled by the process of the courts, and applied by their direction to the uses for which the taxes were levied ; but until then there is nothing in existence but a law of the State imposing certain charges upon persons or property, which the legislature may change, postpone, or release, at any time before they are enforced. So long as the law authorizing the tax continues in force, the courts may, by mandamus, compel the officers empowered to levy it or charged with its collection, if unmindful and neglectful in the matter, to proceed and perform th'eir duty; but when the law is gone, and’ the office of the collector abolished, there is nothing upon which the courts can act. The courts cannot continue in force the taxes levied, nor levy new taxes for the payment of the debts of the corporation. The levying of taxes is not a judicial act. It has no elements of one. It is a high act of sovereignty, to be performed only by the- legislature upon considerations of policy, necessity, and the public welfare. In tbe distribution of the powers of government in this country into three departments', the power of taxation falls to the legislative. It. belongs to that department to determine what measures shall be taken for the public welfare, and to provide the revenues for the support and due administration of the government throughout the State and in all its subdivisions. Having the sole power to authorize the tax, it must equally possess th¿ sole power to prescribe the means by which the tax shall be collected,- and to designate the officers through whom its will shall be- enforced.
It is the province of the- courts to decide causes between parties,-and, in so doing, to-construe the Constitution and the statutes of the United States, aijd of the several States, and to declare the law, and, when their judgments áre rendered, to enforce them by such remedies as legislation has prescribed, or as are allowéd’ by the established practice. When they go beyond this, they go outside of their legitímate domain, and encroach upon the other departments of the government; and all will admit that a strict confinement of each department within its own proper sphere was designed by the founders of o.ur government, and is essential to its successful administration.
[516]*516This doctrine is not new in this court. It has been repeatedly asserted, after the most mature consideration. It was asserted in. Rees v. City of Watertown. There the plaintiff, being the owner 'of certain bonds issued by the city of Water-town, in Wisconsin, to a railroad .company, brought suit upon them in the Circuit Court of the United States, and recovered two judgments amounting to about $10,000. Upon these judgments he issued executions, which were returned unsatisfied. He then applied to the Circuit Court, and obtained a writ of mandamus upon the authorities of Watertown to levy and collect a tax upon the taxable property of the city to pay the judgments; but before the writs could be served a majority o'f the members of the council resigned their offices. Subsequent writs of mandamus obtained by him proved ineffectual,. by reason of similar resignations. He then filed a. bill alleging that the corporate authorities were. trustees for the benefit of the creditors of the city,; that the property of the citizens was; a trust fund for the payment of its debts, and that it was the duty of the court to lay hold of such property and cause it to be applied; and he prayed that the court would subject'the taxable property of the city to the payment' of the judgments. To this bill the city made answer; and on the argument of the case, among other points, the question arose whether it was competent for the court, on the failure of the officers of the city to levy the tax as required by law, to appoint the marshal of the court to levy and collect the tax to pay the judgments. Upon this question, the judges being divided, the point was certified to this court. In disposing of it we said-: “We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, ■ first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of- the Federal judiciary to assume the place of a State in the exercise of this authority at. once so delicate and so important.” 19 Wall. 107, 116.
In the case of Heine v. The Levee Commissioners of New Orleans, the question again arose whether it was competent [517]*517for tlie Circuit Court of the United States to direct its officers to levy and collect a tax to pay the claims of the plaintiffs, who were holders-of bonds issued by the commissioners; and the answer was equally emphatic both in the Circuit Court and in this court.
In the Circuit Court, over which Mr. Justice Bradley then presided, the possession of the power of taxation had been denied. “ The judicial department,” said the Justice, “has no power over the subject. If the officers who are charged with the duty óf ,laying or collecting taxes refuse to perform 'their functions, the court,, in a clear case of failure, a,nd at the instance of a party directly interested, can, by the prerogative writ of mandamus, compel them to perform acts which are ministerial, as distinguished- from those which are judicial or discretionary. This, is all that the judicial department can do on the subject, unless the legislature has expressly conferred upon it further powers.” 1 Woods, 247. -
And -when- the case came before this court, .we here said, Mr. Justice Miller delivering the opinion : “ 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 sélect 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 com-: pliance with it- would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee.” 19 Wall. 655. <
These authorities.— and many others to the same purport [518]*518might be cited — are sufficient to support what we have said, that the power to levy taxes is one which belongs exclusively to the legislative department, and from that it necessarily follows that the regulation and control of all the agencies by Which taxes are collected must belong to it.
When creditors are unable to obtain payment of their judgments against municipal bodies by execution, they can proceed by mandamus against the municipal authorities to compel them to levy the necessary tax for that purpose, if such authorities are clothed by the legislature with the taxing, power, and such tax, when collected, cannot be diverted to other uses; but if those authorities possess no' such power, or their offices have been- abolished and the power withdrawn, the remedy of the creditors is by an appeal to the legislature, which alone can give them relief. No Federal court, either on its law or equity side, has any inherent jurisdiction to lay á tax for any purpose, or to enforce a tax already levied, except through the agencies provided by law. However urgent the appeal of creditors and the apparent hopelessness . of thejr position without the aid of the Federal court, it cannot seize the'power which belongs to the legislative department of the State and wield it in their behalf.
To return to the question propounded: what is the property of a municipal corporation which, on its dissolution, the courts can reach and apply to the payment of its debts ?
We answer, it-is the private property of the corporation, that is, such as-it held in its own right for profit or as a source of revenue, not charged with any public trust or use, and funds in its possession unappropriated to any specific purpose. In this respect the position of the extinct corporation is not dissimilar to that of a deceased individual.; it is only such property as is possessed, freed from ■ any trust, general or special, which can go in liquidation of debts.'
The decree of the -Circuit Court proceeding upon a different theory of its control over the uncollected taxes of the repealed corporation, and of the property which could be applied to the payment of its debts, cannot be maintained.
. On another ground, also, the decree is equally untenable. It adjudges that “ all the property within the- limits of the [519]*519territory of the'city of Memphis is liable,-and maybe subjected to the payment'of all the debts ” for which the suits are brought, and that “such liability shall be enforced thereafter, from time to time, in such manner ” as the. court may direct.
In no State of the Union, outside of New England, does the' doctrine obtain that the-private property of individuals within the limits of a municipal corporation can be reached by its creditors; and subjected to the payment of their demands. In Massachusetts and Connecticut, and perhaps in other States in New England, the individual liability of the inhabitants of towns, parishes, and cities, for the debts of the latter, is maintained, and executions upon judgments issued against them-can be enforced against the private property of the inhabitants. But this doctrine is admitted by the courts of those States to be peculiar to their jurisprudence, and an exception to the rule elsewhere prevailing. Elsewhere the private property of the inhabitants of a municipal body cannot be subjected to the payment of its debts, except by way of taxation; but taxes, as we have already said, can only be levied by legislative authority. 'The power-of taxation is not.one of the functions of the judiciary; and whatever authority the States may, under their constitutions, confer upon special tribunals of their own, the Federal courts cannot by reason of it take any additional powers which are not judicial.
In Rees v. City of Watertown, from which we have already quoted, the power asserted by the decree was claimed by counsel, but was rejected by the court. “ Assume,” said the court, .“that the plaintiff is entitled to the payment of his judgment, and that the defendant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from- the private estate of one of its citizens. This summary proceeding would involve a violation of the. rights of the latter. He has never been heard in court. . He has had no opportunity to. establish a defence tn the .debt itself, or, if the judgment is valid, to show that his property is not liable -to its payment. It is well settled that .legislative exemptions from taxation are valid, that such exemptions may be perpetual in their duration, and that .they are, in some cases, beyond legislative interference. The pro[520]*520ceeding supposed would violate the fundamental principle contained in chapter twenty-ninth of Magna Charta, and embodied in the Constitution of the United States, that no man shall be deprived of his property without due process of law; that is, he must be served with notice of the proceeding, and have a day in court to make his defence.” 19 Wall. 122.
It is pressed upon us with great earnestness by counsel, that unless' the Federal courts come to the aid of the creditors of Memphis, and enforce, through their own officers, the taxes levied before the repeal of its charter, they will be remediless. But the conclusion does not follow. The taxes levied pursuant to writs of mandamus issued by the Circuit Court are still to be collected, the agency ohly for their collection being changed. The receiver appointed by the governor has taken the place of the collecting officers of the city. ' The funds received by him upon the special taxes thus levied cannot be appropriated to any other uses. . The receiver, and any other agent of the State for the collection, can be compelled by the court, equally as the former collecting officers of the city, to proceed with the collection of such taxes by the sale of property or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgments. If relief is not thus ■afforded to the creditors, they'must appeal to the legislature. We cannot presume that the appeal will be in vain. We cannot say that on a proper representation they will not receive favorable action.
It is certainly of the highest importance to the people of every State that it should make provision, not merely for the, payment of its own indebtedness, but for the payment of the indebtedness of its different municipalities. Hesitation to do this is weakness; refusal to do it is dishonor. Infidelity to engagements causes loss of character to the individual; it entails reproach upon the State.
The Federal judiciary has never failed, so far as it was in its power; to compel the performance of all lawful contracts, Avhether of the' individual, or of the municipality, or of the State; It has unhesitatingly brushed aside all legislation of the State impairing their obligation. When a tax has been authorized by law to meet them, it has compelled the officers of. assess[521]*521ment to proceed and levy the' tax, and the officérs of collection to proceed and collect it, and apply the proceeds. In some instances, where the tax was- the inducement and consideration of the contract, all attempts at its repeal have been held invalid. But this has been the limit o,f its power. It cannot make laws when the State refuses to pass them. It is itself but the servant of the law. If the State' will not levy a tax, or provide for one, the Federal judiciary cannot assume the legislative power of the State and proceed to leVy the tax. • If the. State has provided Njncompetent officers of"-collection, the Federal judiciary cannot remove them and put others more competent in their, place. • If the fetate appoints no officers of collection, the Federal judiciary canhof assume t-.> itself that duty. It cannot take upon itself to supply the defects and omissions of State legislation. It would ill perform the duties assigned to it by assuming power properly belonging to the legislative department of the State.