Smith v. Tallapoosa County

22 F. Cas. 684, 2 Woods 596

• Court: U.S. Circuit Court for the District of Middle Alabama
• Decided: May 15, 1875
• Status: Published

Opinion

BRADLEY, Circuit Justice.

We have looked at the authorities referred to by counsel in this case, and do not see the inconveniences and conflict of jurisdiction which the counsel for the defendants apprehends. It is conceded that the plaintiffs who recovered judgment against the county of Tallapoosa, were not parties to the litigation in the chancery court for the said county; and, although in that suit as well as in the suit on which the said judgment was recovered, the validity of the bonds and coupons sued on was in question yet not being in question between the same parties, the two litigations were entirely independent of each other, and the action of the chancery court cannot be deemed a binding adjudication against the plaintiffs here. The court of county commissioners of Tal-lapoosa county is under injunction, it is true, not to do the very thing which a mandamus from this court would require them to do. But they cannot be embarrassed by this, because the act of the law as well as the act of God can always be pleaded in excuse of performing or not performing an act. The mandamus of this court would be an act of law which could thus be pleaded by the commissioners in excuse of not obeying the injunction; and such an excuse will undoubtedly be accepted by the chancery court. This is so, not because this court has any superiority over that court, but from the nature and circumstances of the case, and particularly from the fact that the plaintiffs in this case were not parties in that court. Had they been parties, and had they instituted suit and obtained judgment against the injunction of the chancery court, they would be guilty of contempt and answerable therefor to that court. But not being parties, they are not affected by the proceedings had therein, and cannot be deprived of the execution of their judgments. The court of county commissioners in this proceeding is not to be regarded as a court of judicature, but as the administrative authorities of the county, having the ministerial duty to perform of levying taxes when the law makes it their duty to do so. Their duty in this regard is just as much a ministerial one as is that of the sheriff. when he has a writ in his hands commanding him to levy and make a sum of money out of the property of the defendant. As such ministerial officers, they have no interest, but simply to obey and carry out the law; and a mandamus cannot be regarded as derogating from any judicial dignity with which they are ex officio invested in relation to matters of judicature.

Under the authority of the cases decided by the supreme court of the United States, which were cited by the counsel of the plaintiffs, we think that a mandamus should be issued.