"(2) Because said bill of complaint shows | suited for the purpose, and was "charged that said city of Mobile was specially au- with the duty of introducing into the port of thorized and empowered by its charter and Mobile (city) such supply of pure water as by the act of the general assembly of Ala-the domestic, sanitary, and municipal wants bama approved November 30, 1898 (and of thereof may require." Accordingly, comwhich said act this court will take judicial plainant laid mains and pipes in the streets notice), to buy or to build, erect and main-of the city, and established hydrants and fire tain, and to operate waterworks for the sup- plugs therein, and built a reservoir and ply of its inhabitants with water, and for erected pumps connecting with such mains the extinguishment of fires, and for sanitary, and pipes, at large expense to itself, and domestic, and other purposes. used the property to supply the city and its inhabitants with water. August 15, 1888. complainant entered into a contract with the city to furnish for its use 260 fire hydrants, and to furnish water for fire service of a cer "(3) Because there is nothing shown or alleged in said bill of complaint and in said Exhibits 'A' and 'B,' made a part thereof, which precludes or estops the city of Mobile [111]from buying, building, erecting, maintain-tain number of streams and pressure, and ing, and operating a system of waterworks. "(4) Because said Exhibits ‘A' and ‘B,' made a part of said bill of complaint, show that the only obligation resting upon and binding upon said city of Mobile is that it shall pay to said Bienville Water Supply Company the sum of fifty dollars ($50) each per annum, payments to be made monthly, for 260 fire hydrants placed on the streets of said city by said water supply company until the expiration of said contract on July 1st, A. D. 1900, and it is not alleged or charged in said bill of complaint that the city of Mobile has or intends to repudiate its obligation to pay for said 260 fire hydrants at the rate of $50 each per annum, payments to be made monthly." further agreed that the city should have the "(8) Because said bill of complaint fails The bill averred that complainant had to allege any facts which show that the city complied and was complying with all the obof Mobile has or intends to do or commit any ligations and requirements of the contract act which will impair the said contract between the city of Mobile and the Bienville on its part, and that the city had violated Water Supply Company, and which said conand was violating the contract in that it had tract is made a part of the bill of complaint. bought and taken possession of a waternow operating the "(9) Because it is shown upon the face works plant, and was of said bill of complaint that the city of Mo- same, selling water to customers, and cutting bile did not grant the complainant the fran- rates below those fixed in the contract, and chise to lay its said water mains and pipes and furnishing water to its inhabitants, and actually competing in the business of selling in the city of Mobile, but that it was done that it had taken away some of complainby the general assembly of Alabama, and ant's customers, thereby decreasing its infrom which it appears that said city of Mo-come; and, further, that the city was buildbile had no lawful authority to grant or to enter into a contract with complainant, conferring thereby the exclusive right or privilege of supplying water to the inhabitants of said city of Mobile." ing another system of waterworks to supply The court sustained the demurrer on the foregoing grounds, and gave complainant The charter provided that the city might fifteen days in which to amend, and, no contract for, build, purchase, or otherwise amendment having been made, dismissed the acquire public works subject to the approv bill. From that decree an appeal to this al of a majority vote of the citizens of Mocourt was allowed and perfected, and mobile at a special election called therefor; and tions to dismiss or affirm submitted. in July, 1897, such an election was held, The opinion of the circuit court, Toulmin, and a majority of the votes cast were in faJ., is reported 95 Fed. Rep. 539, and states vor of the city contracting for or otherwise the facts appearing from the bill, and perti-acquiring waterworks to be owned and nent legislation, in substance, correctly, as operated by the city, and the issuing of follows: Complainant was a corporation bonds to pay for the same. The act of Nochartered by the legislature of Alabama for vember 30, 1898, authorized the issuing of the purpose, among other things, of supply bonds for that purpose. It was further [112]ing water to the city of Mobile, a municipal averred that acting under and by virtue of corporation of the state, and its inhabitants, the power granted by the charter and the act and was authorized to construct the needed of November 30, the city had entered into a canals, ditches, pipes, aqueducts, etc., best contract to have a system of waterworks pany, Ex parte. (See S. C. Reporter's ed. 114-120.) Writ of error, and not mandamus, is the proper vember 13, 1899. PPLICATION for leave to file a petition Afor a writ of mandamus to the Supreme built, and that the building of the same was Re C. G. BLAKE, and Rogers, Brown, & Comnow going on, and that it had made a contract with certain persons to take said bonds, who had already taken and paid for a part of them. Complainant contended that the city had no legal right to impair the value of its plant and to destroy or diminish its income therefrom, which would be the effect of the city's action in building waterworks and furnishing water to its inhabitants, and it was averred that defendant was insolvent, and that the only way complainant could protect itself was through the interposition of a court of equity. It was not asserted by complainant that it had been Submitted October 30, 1899. Decided Nogranted an exclusive franchise to furnish water to the city and its inhabitants, but that under the contracts the city had no right to furnish water to other persons, or to build or acquire a system of waterworks to supply water to itself and its inhabitants, and that to do this was a violation thereof. The circuit court observed that the city of Mobile granted complainant no rights or privileges whatever, but that the legislature Statement by Mr. Chief Justice Fuller: of the state granted it the right to build *The Embreeville Freehold, Land, Iron, &[115] waterworks and to use the streets of the city Railway Company, Limited, was a corporafor water purposes, and authorized com- tion organized under the laws of Great Britplainant and the city to contract together ain and Ireland for mining and manufacturfor the purpose of supplying the city with ing purposes, carrying on business in the water. The contract was made, but there state of Tennessee, as authorized by a law of was no express provision in it for furnishing that state of March 19, 1877. The 5th secthe inhabitants with water, and no stipula- tion of the act gave priority in the distribution by complainant that it would do so, tion of assets to resident creditors of the [114]though it was clear that the *parties contem- state. The company having become insolplated that complainant would contract vent McClung and others filed an original with the inhabitants to supply them with creditors' bill in the proper court, asking the water for domestic purposes, since it was appointment of a receiver and the administration of the affairs of the company as an stipulated that complainant should not charge for water so supplied higher rates insolvent corporation. The case resulted in than those specified therein. a final decree by the supreme court of TenOn the other hand, the city was authorized and empow-ors were entitled, under said section, to prinessee adjudging that the Tennessee creditered by its charter and the act of the legis- ority in the distribution of the assets over lature of Nevember 30, 1898, to build or oth-simple-contract creditors of other states and erwise acquire waterworks of its own to sup- countries. Among the creditors affected ply water to itself and its inhabitants for were C. G. Blake and Rogers, Brown, & Comthe extinguishment of fires and for sanitary pany, citizens of the state of Ohio, and the and domestic purposes, and the city in its Hull Coal & Coke Company, a corporation of contracts with complainant did not agree Virginia, who, being dissatisfied, sued out a not to do so. It did agree to pay complain-writ of error from this court. And it was ant for a certain number of hydrants erected held, reversing the decree of the state suand supplied by it, and to make the pay- preme court, that the 5th section of the act ments monthly, but there was no averment of 1877, in so far as it gave priority to *Ten-[118] that the city had by act or word repudiated nessee creditors over creditors of the same its obligation, or failed or refused to make class of other states of the Union, was in the payments stipulated for, or that it in- violation of the 2d section of the 4th article tended to do so. of the Constitution, providing that "the citiIn short, there were no facts averred show-zens of each state shall be entitled to all priving that the city had violated, was violat-al states;" but it was also ruled that a corileges and immunities of citizens in the severing, or intended to violate, its contracts poration created under the laws of another with complainant, and there was no legis- state was not a "citizen" within the meaning lation to that end. Such being the state of of this clause. Blake v. McClung, 172 U. S. the case, the circuit court did not err in dis- 239, 258, 262, 43 L. ed. 432, 439, 440, 19 Sup. missing the bill, and, as there was color for Ct. Rep. 165. the motion to dismiss, the motion to affirm will be sustained. Decree affirmed. In the opinion, among other things, it was said: "We adjudge that when the general property and assets of a private corporation lawfully doing business in a state are in course of administration by the courts of such state, creditors who are citizens of other states are entitled, under the Constitution of the United States, to stand upon the same plane with creditors of like class who are citizens of such state, and cannot be denied equality of right simply because they do not reside in that state, but are citizens residing in other states of the Union." The judgment was in these terms: "The final judgment of the supreme court of Tennessee must be affirmed as to the Hull Coal & Coke Company, because it did not deny to that corporation any right, privilege, or immunity secured to it by the Constitution of the United States. As to the other plaintiffs in error, citizens of Ohio, the judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion; and it is so ordered." to perform the office of an appeal or writ of error. And it only lies, as a general rule, where there is no other adequate remedy. As respects the Federal courts, it is well settled that where the mandate leaves nothing to the judgment or discretion of the court below, and that court mistakes or misconstrues the decree or judgment of this court and does not give full effect to the mandate, its action may be controlled either upor. a new appeal or writ of error, if involving a sufficient amount, or by writ of mandamus to execute the mandate of this court. City Bank v. Hunter, 152 U. S. 512, 38 L. ed. 534, 14 Sup. Ct. Rep. 675; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291; Re Potts, 166 U. S. 263, 41 L. ed. 994, 19 Sup. Ct. Rep. 520. *Nevertheless, without inquiring whether[118] the conclusions of the supreme court of Tennessee were or were not in harmony with the views expressed by this court, we are of opinion that the remedy of petitioners for the alleged error in the decree of that court, if any, is by writ of error, and not by mandamus. The remedy on error is not only entirely adequate and open to be sought, unrestrained by the amount involved, but, in respect of dealing with state tribunals, is manifestly the proper remedy. The mandate having gone down, the counsel of Blake and Rogers, Brown, & Company moved for the entry of a decree placing them in the same class and on exact equality with the Tennessee creditors in respect to the distribution of the assets of the insolvent company among its creditors, but this the state supreme court declined to do, and entered a decree that Blake and Rogers, Brown, & Company were entitled to participate in the as- That it is adequate under § 709 of the Resets on the basis of a broad distribution of vised Statutes is clear. Stanley v. Schwalthe assets of the corporation among all of its by, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. creditors without preference or priority, as Rep. 754, a case on a second writ of error to though the act of 1877 had not been passed; the state court, in which the statutes and that there should be a computation of the decisions bearing on the subject are fully aggregate indebtedness due from the corpora- considered. And that it should be resorted [117]tion to its creditors of every *class, wherever to when the action of the state courts is comresiding, whereupon Blake and Rogers, plained of is equally plain. Assuming that Brown, & Company should be paid the per- the question of the form of the proceeding centage and proportion found to be due to which this court might adopt to enforce the them on that basis; and that the residue of execution of its own mandates in the courts the estate of the insolvent company should of the United States is one of practice merebe applied first to the payment of the indebt-ly, and either mode might be pursued, as edness due to the creditors of the corporation ruled by Mr. Chief Justice Taney in Perkins residing in Tennessee as provided in § 5 of v. Fourniquet, 14 How. 328, 330, 14 L. ed. the act of 1877, and then pro rata to the pay-441, we think the summary character of the ment of the debts of the alien and nonresi- proceeding by mandamus renders it inapprodent creditors of said corporation other than priate in respect of the courts of another juBlake and Rogers, Brown, & Company. risdiction. Beard, J., dissented. 52 S. W. 100. To this decree Blake and Rogers, Brown, & Company duly excepted, but, insisting that that court had not complied with the mandate of this court, applied for leave to file a petition for mandamus to compel such compliance. Mr. Heber J. May submitted the cause for petitioner. Mr. Tully R. Cornick was with him on the brief. Mr. John W. Green submitted the cause for respondent. Mr. S. C. Williams was with him on the brief. [117] *Mr. Chief Justice Fuller delivered the opinion of the court: The writ of mandamus cannot be issued to compel a judicial tribunal to decide a matter within its discretion in a particular way, or to review its judicial action had in the exereise of legitimate jurisdiction, nor be used By the 13th section of the judiciary act of 1789 (1 Stat. at L. 81) this court was clothed with the power to issue "writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States," and this was carried forward into § 688 of the Revised Statutes. And it was ruled in Graham v. Norton, 15 Wall. 427, 21 L. ed. 177, that mandamus to national courts and officers "this express authority to issue writs of has always been held to exclude authority to issue these writs to state courts and officers;" excepting "where they have been issued as process to enforce judgments." In Gordon v. Longest, 16 Pet. 97, 10 L. ed. 900, which was a writ of error to review the action of a state court wrongfully refusing to remove a case into the circuit court, Mr. Justice McLean intimated that mandamus might lie to compel action by the state court, but the remark was purely obiter, and cannot be regarded as authoritative. [119 By the 14th section of the judiciary act, circuit courts were vested with power "to issue writs of scire facias, and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions, and agreeable to the principles and usages of law," which was re-enacted as § 716 of the Revised Statutes. In Bath County v. Amy, 13 Wall. 244, 20 L. ed. 539, it was held that the circuit courts had no power to issue writs of mandamus to state courts by way of original proceeding and where the writ was neither necessary nor ancillary to any jurisdiction which the court then had. But our attention has been called to no case in which this court has exercised jurisdiction by mandamus under circumstances similar to those supposed to exist here; while there are cases in the circuit courts which illustrate the propriety of declining to do 20. In Ladd v. Tudor, 3 Woodb. & M. 325, which was an application for a mandamus to compel a state court to remove a cause to the circuit court, Mr. Justice Woodbury said: "Some doubt might exist whether a mandamus to a state court from this tribunal organized under another government was the proper remedy. It has been settled that a state court cannot issue a mandamus to V. an officer of the United States. McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340. In 16 Pet. 97, 10 L. ed. 900, the remedy was by a writ of error to reverse the first judgment in the state court. And where another remedy lies, a mandamus is held to be improper. Morris v. Mechanic's Bank, 10 Johns. 484. But Spraggins v. Humphries County Ct. Cooke (Tenn.), 160, seems to countenance the present cause. Brown v. Crippin, 4 Hen. & M. 173, quoted in some of the Digests for it. seems, on examination, to be a case of a mandamus from the highest state court to common pleas in the same state, to remove such a case, and not one from a court of the United States. In McIntire Wood, 7 Cranch, 504, 3 L. ed. 420, it was held that a mandamus did not lie from the circuit court to an officer of the United States; and though that speaks generally of the power of this court to issue it in order to sustain its jurisdiction, and the decision in Cooke rests on that power of superior courts to enforce their jurisdiction over in[120]ferior ones by mandamus, *yet it is very questionable whether a case like the present ought to be considered within that principle. It is a correct principle between inferior and superior courts of the same government, but difficult to be upheld between courts established by separate governments. If necessary to decide on this, it might require more grave consideration before sustaining it in cases like this, because being a mode of redress very likely to lead to jealousies and collisions between the states and general government, of a character anything but de sirable." New York Supreme Ct. Justices v. Murray, 9 Wall. 274, sub nom. New York Supreme Ct. Justices v. United States, Murray, 19 L. ed. 658, was a writ of error to the circuit court for the southern district of New York from a judgment for a peremptory mandamus rendered against the justices of the supreme court of New York for the third district to remove a cause, but Mr. Justice Nelson stated in a note on page 276, L. ed. 660, that "the alternative and peremptory mandamus against the supreme court of New York was allowed by consent of the counsel for the defendants, with a view to present the question raised and decided in the case. The circuit court had refused to issue it against the court, and issued it only against the clerk. This is stated to prevent the case from being cited as an authority for the power, and without intending to express any opinion on this subject." And see Hough v. Western Transp. Co. 1 Biss. 425, Drum. mond, J.; Fisk v. Union P. R. Co. 6 Blatchf. 362, Blatchford, J.; High, Extr. Rem. 3d ed. § 227 et seq., and cases cited. Leave to file petition denied. CITY OF NEW ORLEANS, Petitioner, บ. JOHN G. WARNER. (See S. C. Reporter's ed. 120-148.) Limitation of action on drainage warrant— conclusiveness of judgment dismissing suit on warrant-liability of city for breach of contract to collect assessments to pay warrants-assessment of public property for public improvements-constitutional limi tation of municipa! indebtedness-interest on municipal warrants. 1. Warrants drawn by the administrator of accounts upon the administrator of finance of a city, payable to the order of a third person out of any funds in the city treasury to the credit of a particular corporation, are not within the provisions of a statute limiting the time for bringing actions on bills of exchange, notes payable to order or bearer, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise. NOTE.-As to what constitutes "an indebted ness," within the meaning of constitutional and statutory restrictions of indebtedness of munici pal corporations, see Beard v. Hopkinsville (Ky.) 23 L. R. A. 402, and note. Liability of public property to assessment for public improvements. Courts are generally unwilling to hold that a state may be taxed by one of its own political subdivisions; and for this reason it is generally maintained that property owned by the state is impliedly exempt from assessment for local improvements even on the theory of benefits, and property the intent of the legislature to empower a municipality to make such an assessment must be clearly made to appear. in order to sustain a local assessment upon such State v. with 2. The statute of limitations will not run against the liability of a city under its agreement, upon voluntarily purchasing drainage warrants a plant for perfecting its drainage system, to facilitate the collection of assessments, and not to divert such collections from payment of the warrants, until it repudiates the trust, although judgments are substituted for the warrants against its own property. 8. Repudiation of its trust by a city which has purchased with drainage warrants a plant to perfect its drainage system, under an agreement to facilitate the collection of the drainage assessments and apply the fund to pay. ment of the warrants, is not shown by abandonment of the drainage work soon after purchasing the plant. 4. A city which has purchased with drainage warrants a plant to perfect its drainage system, under an agreement to collect the drainage assessments and apply the fund to payment of the warrants, does not cease to be a trustee with respect to the assessments against its own property, because they are reduced to judgments. 5. A decree dismissing, with a bill against a city upon drainage warrants, an intervening petition filed by the owner of some of a series of warrants issued in payment of property purchased, is not binding upon the owners of other warrants of that series, who were neither parties nor privies to the sult. 6. A judgment dismissing a suit against a city upon drainage warrants issued for work done under compulsion of a statute is not a decisive authority against the right to recover upon other warrants issued under a voluntary agreement by the city for purchase of propHartford, 50 Conn. 89, 47 Am. Rep. 622; Polk | County Sav. Bank v. State, 69 Iowa, 24, 28 N. W. 416; Re Mt. Vernon, 147 Ill. 359, 23 L. R. A. 807, 35 N. E. 533. The rule seems otherwise in New York. See Roosevelt Hospital v. New York, 84 N. Y. 108, in which it is said that "all colleges, churches, schools, seminaries of learning, courthouses, jails, schoolhouses, and even the lands of the state, unless by appropriate words specially exempted, are liable to be assessed for local improvements." 7. 8. 9. 10. 11. erty, although the owner of certain of the latter warrants intervened in the former sult, where the court did not notice the distinction between the two kinds of warrants, but treated them all as belonging to the former class. A city which purchases with drainage warrants a plant to perfect its drainage system cannot defeat liability for breach of its agreement to facilitate the collection of drainage assessments and apply the fund to payment of the warrants, by setting up a judgment holding the assessments noncollectible because of its abandonment of the drainage system. In Louisiana, public property is liable to assessment for public improvements. That private property is to be assessed for the entire cost of a public improvement, including the benefit to streets and public squares, is not shown by the fact that the statute makes no provision as to how the proportion of the expense applicable to public property is to be assessed and paid for, while elaborate provision is made for the assessment of private property for its proportion of the expense. After a lapse of more than twenty years a city cannot question the validity of judgments against itself, to which it assented, for assessments upon its property for public improvements, upon the ground that such property was not subject to assessment,-especially assessments approved by the legislature. A constitutional amendment adopted, pending the execution of a contract for the construction of a drainage system for a city, prohibiting "increase" of the city's debt, which expressly provides that it shall not be like schoolhouses, the city hall, and other public buildings, and cannot be assessed for publle improvements. Smith v. Buffalo, 90 Hun, 118, 35 N. Y. Supp. 635. It has been maintained that because a city had not, under its charter, power to sell city lots, those lots could not be held liable to speclal taxation to improve city streets. Leavenworth v. Laing, 6 Kan. 274; Paine v. Spratley, 5 Kan. 525. But, on the contrary, it is elsewhere said that the power to assess may be exercised without power to sell, and that the fact that the prop But a statute conferring power as to state property may not do so as to United States property cannot be sold is not material because the erty, e. g., postoffice grounds. Fagan v. Chicago, 84 Ill. 227. In some jurisdictions county property de voted to public purposes cannot be assessed for local improvements, in the absence of express legislative or constitutional authority. Worcester County v. Worcester, 116 Mass. 193, 17 Am. Rep. 159; Big Rapids v. Mecosta County Supers. 99 Mich. 351, 58 N. W. 358. In Illinois, county property is liable for local Improvements in the absence of any statutory restriction as to the property to be assessed. McLean County v. Bloomington, 106 Ill. 209; Adams County v. Quincy, 130 Ill. 566, 6 L. R. A. 155, 22 N. E. 624; Higgins v. Chicago, 18 Ill. 276. The property of a municipal corporation, if benefited by an improvement, is as much the subject of assessment as the property of individuals. Ross v. New York, 3 Wend. 333; Scammon v. Chicago, 42 Ill. 192; Marquez v. New Orleans, 13 La. Ann. 819; Correjolles v. Foucher, 26 La. Ann. 862. But the public streets of a city can in no sense be regarded as the property of the city, 175 U. S. U. 8., Book 44. tax may be paid out of the public treasury, and mandamus is a competent writ to compel the assessment of the tax for that purpose, when no ordinary remedy of law is competent to enforce the assessment. Paine v. Spratley, 5 Kan. 523; McLean County v. Bloomington, 106 Ill. 209: People ex rel. Lawrence v. Clark County Supers. 50 Ill. 213; Taylor v. People ex rel. Reed, 66 Ill. 322; Philadelphia v. North Pennsylvania R. Co. 4 I'a. Dist. R. 451; Re Berks Street, 12 W. N. C. 10; Vacation of Howard Street, 142 Pa. 601, 21 Atl. 974. Furthermore, it is said that "it may be assumed that the state will provide means for the liquidation of assessments imposed by virtue of laws enacted by its legislature, and that, as has been done frequently heretofore, appropriations will be made for that purpose. Hassan v. Rochester, 67 N. Y. 528. Conversely, the power to sell for taxes is not the power to sell for assessments for benefita Sharp v. Speir, 4 Hill, 76. The exemption laws will, property regarding public in the main, be construed like exemptions respecting other prop7 97 |