Opinion of the Court.

236 U.S.

fendant it was dismissed. In the meanwhile pending action on this petition, on February 28 a new attachment proceeding was sought to be begun by Kinney based upon the theory of the existence of a judgment against the defendant in the original proceeding and a writ of attachment which was made returnable on a day other than the first day of the following term was presented to the clerk with the request that he affix the seal of the court to it, which he declined to do on the ground of an improper return day. And the District Court refusing to command the clerk to comply with the request, mandamus proceedings were commenced in the Circuit Court of Appeals for the First Circuit to compel the clerk to comply. The court refused the mandamus upon the ground that because of the wrong return day the clerk had rightfully refused, supporting its conclusions by the same line of reasoning which caused the District Court in the Eastern District of Pennsylvania and the Circuit Court of Appeals for the Third Circuit in the cases to which we have previously referred to decide that the original action of the clerk in refusing to file because of a wrong return day was right. (202 Fed. Rep. 137.) Thereupon the suit before us was commenced in March, 1913, in the District Court of Massachusetts to recover on a judgment against the defendant upon the assumption that such a judgment had been rendered in the original suit; and after issue joined there was a judgment in favor of the defendant company on the ground that there was no such judgment in said suit, the court again directly upholding the rightfulness of the action of the clerk in having originally refused to enter the cause because of the wrong return day. This judgment was affirmed by the Circuit Court of Appeals in a careful opinion sustaining the same view (214 Fed. Rep. 766), and it is this judgment that is intended to be brought under review in the proceedings which it is prayed may be conducted in forma pauperis. And the assignments of error

but challenge, for reasons which it is unnecessary to recapitulate, the lawfulness of the action of the clerk in originally refusing to comply with the request to file the attachment proceedings and enter the default judgment and assess the damages before the first day of the term following the issue of the writ, and therefore but assail all the various opinions and judgments to which we have referred in stating the history of the case.

Under these circumstances we think it is manifest that no ground is shown for the allowance of the prayer of the petition. The case proceeds upon the erroneous assumption that a judgment was rendered in a cause which is yet pending and undisposed of; in other words, the case assumes as a basis for relief the existence of that which does not exist. It seeks collaterally to attack that which was only susceptible of being assailed directly. It disregards the conclusive effect of the judgments as to the want of merit in the claim rendered in the courts of the first and third circuits and by implication disregards the legal consequences necessarily arising from the former action of this court. Indeed, irrespective of these considerations, to the end that frivolous and fruitless litigation may cease, we say that we are clearly of the opinion that the absolute want of merit in the case is demonstrated by the views expounded in the opinions of the courts of the first and third circuits to which we have referred concerning the rightfulness of the action of the clerk in refusing to file the papers and enter the judgment for damages under the circumstances disclosed.

The prayer of the petition is denied.

VOL. CCXXXVI-4

Argument for Yost.

236 U.S.

YOST v. DALLAS COUNTY.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 604. Argued January 6, 1915. Decided January 18, 1915.

The obligation of bonds issued by a county pursuant to legislative authority is an obligation under, and not paramount to, the authority of the State.

While the District Court has jurisdiction, where diverse citizenship exists, of a suit upon bonds issued by a county pursuant to legislative authority, the extent of the obligation is determined by the statutes of the State and not by the Constitution of the United States. A plaintiff by bringing suit in the Federal court upon the contract obligation of a county acquires no greater rights than are given by local statutes.

The right given in bonds issued by a county pursuant to legislative authority to have a tax levied, collected and applied to their payment, is to have such tax levied and collected in the manner provided by statute, and courts cannot substitute their own appointee in place of one contemplated by the act.

Even where the state court by mandamus has directed the officers of a county to levy and collect a tax as required by the state statute and apply it to the payment of a judgment for defaulted bonds, and they have failed to do so, the Federal court has not jurisdiction to appoint a commission to levy, collect and apply the tax. Until the highest court of Missouri otherwise construes Rev. Stat., § 11417, Missouri, giving the Circuit Court power to enforce by mandamus or otherwise an order of the county court to have a tax assessed, this court will not construe the words "or otherwise" as authorizing the court to collect the tax itself, but as only allowing the resort to other means besides mandamus to compel the county court to do so.

THE facts, which involve the jurisdiction of the District Court, are stated in the opinion.

Mr. Harry J. Cantwell for Yost:

Federal courts are bound to proceed to judgment and

to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction. Chicot Co. v. Sherwood, 148 U. S. 529, 534.

The means to be employed by the United States courts, in the enforcement of their lawful jurisdiction, are limited only by the determination of whether such means are necessary, and agreeable to the principles and usages of law. Section 262, Jud. Code; Hills v. Hoover, 220 U. S. 335; Holland v. Challen, 110 U. S. 24; Davis v. Gray, 16 Wall. 203; Chicot Co. v. Sherwood, 148 U. S. 534.

Counties and other municipal corporations, when acting for the particular advantage of the particular corporation, and not from considerations connected with the government of the State at large, are to be regarded as private corporations. Murray v. Charleston, 96 U. S. 445; State v. Gates, 190 Missouri, 540, 558; State v. County Court, 128 Missouri, 427; Lincoln Co. v. Luning, 133 U. S. 529, 531.

There is no distinction between counties and cities or towns as regards their liability for obligations created in their business capacity, or in the method of enforcement of the obligations. Laramie County v. Albany County, 92 U. S. 307, 311; Mount Pleasant v. Beckwith, 100 U. S. 524; Lincoln Co. v. Luning, 133 U. S. 531.

On mandamus being disobeyed the court may appoint a receiver to do the act or acts required to be done by the writ. Section 3012, Rev. Stat. Missouri, 1909.

The special tax imposed by the legislature of the State of Missouri upon the property in Dallas County is a special charge, analogous to internal improvement charges. It bears no relation to ordinary taxes for the maintenance of local government. The creation of the debt by the authority of the legislature, the provisions of the legislative act definitely fixing the property upon which it should be charged, and requiring the enforcement of the charge for the payment of the debt, created a charge

Argument for Yost.

236 U. S.

against definite specific property. Farrar v. St. Louis, 80 Missouri, 379; Construction Co. v. Shovel Co., 211 Missouri, 532; Ray Co. v. Bentley, 49 Missouri, 236; Dickason v. County Court, 128 Missouri, 427, 438.

The charge here is a fixed, definite and certain charge imposed by law. King v. United States, 99 U. S. 233; Savings Bank v. United States, 19 Wall. 227, 240; Meriwether v. Muhlenburg Ct., 120 U. S. 357; Thompson v. United States, 103 U. S. 484; Supervisors v. Rogers, 7 Wall. 175.

There being no act of discretion to be performed by the agents of the defendant, the acts necessary to enforce the charge against definite property being acts commanded by the sovereign power of the State, no good reason can be given why the same remedy should not be applied to these agents of the county as would be applied if the county were a private corporation.

The sovereign power of the State of Missouri has specially conferred upon the judiciary the duty of compelling the specific performance of every act necessary to payment of the judgment in this case. Rev. Stat. Mo. 1855, p. 427; Vol. I, Rev. Stat. Mo. 1855, p. 438; Wagner's Mo. Stat. 1870, p. 306, see App.

The judiciary has express power to dispense with official action of any particular individual officer in the performance of any and every act which might be necessary to the accomplishment of payment of these bonds. Section 8, c. 47, Rev. Stat. 1855, p. 533; § 21, Art. VI, Const., 1865; § 23, Art. VI, Const., 1875; §§ 1 and 16, c. 135, Rev. Stat. Mo. 1855, pp. 1329, 1338; § 37, c. 47, id.; § 7, c. 12, Gen. Stat. Mo. 1865, p. 99; § 37, c. 47, Rev. Stat. 1855; § 18, c. 133, Gen. Stat. 1865, and see also Givens v. Daviess Co., 107 Missouri, 608.

The whole question of levying taxes and of raising revenues is, in Missouri, under the control of the judiciary. Sections 11416, 11417, Rev. Stat. Mo. 1909.