DAVID YOST v. DALLAS COUNTY.

This case comes here upon a certificate from the circuit court of appeals. It is a suit in equity and the bill was dismissed by the district court. The facts alleged are, in short, as follows: A statute of Missouri incorporated the Laclede & Fort Scott Railroad, and authorized counties to invest in its stock and bonds, and to issue county bonds in order to pay for the same. The appellee did so, afterwards defaulted upon its bonds, and the appellant recovered judgment upon them in the same district court for over a million dollars. Under the laws in force when the bonds were issued it was the duty of the county officers to levy and collect annually a tax of 30 per cent of the amount of the bonds issued, but this duty never has been performed, and the county officers evade service of writs of mandamus, or, if served, refuse to obey the writs. There is no other mode of obtaining satisfaction, and the duties of levying and assessing the tax are only those of apportioning the tax among the taxable inhabitants on the basis of the last previous assessment which has been made, and of collecting it. The prayer is for the appointment of a commissioner to levy, to collect, and pay over the tax according to the Missouri law. The questions certified are:

'1. Has a district court of the United States, sitting as a court of equity, jurisdiction of such a cause?

'2. When a judgment has been recovered on the law side of a district court of the United States of competent jurisdiction, against a county of the state of Missouri, on its bonds issued by authority of law, and the laws of that state in force at the time the bonds were issued authorized such county to levy and collect taxes to pay such bonds, and the county has no funds in its treasury which can be applied to the payment of the judgment, and its property is, under the laws of the state, exempt from seizure and sale under execution; when the officers charged by the laws of the state with the duty to levy and collect taxes to pay such judgment refuse so to do, when the court in which such judgment was rendered has a number of times issued writs of mandamus commanding such officials to levy the taxes which they were authorized and which it was their duty to levy to pay such judgment, but these officials have, when possible, evaded service of these writs, and when served have wilfully and defiantly refused to obey the writs of mandamus, and the fact has been conclusively demonstrated by the proceedings at law that the plaintiff is utterly remediless at law by mandamus or otherwise for the failure of the county to pay, and the refusal of the officers of the county to discharge their duty to levy and collect taxes, and therewith to pay his judgment; and when the last previous assessment was made which, by the statute in force at the time the contract was made, was authorized and made the basis of the levy of the amount to which the plaintiff is now entitled under his judgment and writs of mandamus, so that no act of discretion is required to levy and collect it, but only the clerical or ministerial acts of apportioning the amount among the assessed values of the taxables specified in the last previous assessment, placing it on the tax books and collecting it of the persons and property liable therefor, has the Federal court of the district in which the judgment was rendered, and the futile writs of mandamus issued, and, when possible, served, the jurisdiction and authority in equity to appoint a commissioner, receiver, or other officer to make the apportionment and to collect the amounts which the owner of the judgment is entitled to have collected from the parties and properties liable therefor.'

The fundamental consideration for answering these questions is that the obligation upon which the judgment was recovered was an obligation under, not paramount to, the authority of the state. It is true that the district court of the United States had jurisdiction of the suit upon the contract, but the extent of the obligation imposed was determined by the statutes of Missouri, not by the Constitution of the United States or any extraneous source, the Constitution only requiring that the obligation of the contract should not be impaired by subsequent state law. The plaintiff, by bringing suit in the United States court, acquired no greater rights than were given to him by the local statutes. The right so given was to have a tax levied and collected, it is true, but a tax ordained by and depending on the sovereignty of the state, and therefore limited in whatever way the state saw fit to limit it when, so to speak, it contracted to give the remedy. It is established that 'taxes of the nature now in question can only be levied and collected in the manner provided' by the statute, and therefore that it is impossible for the courts to substitute their own appointee in place of the one contemplated by the act. Seibert v. Lewis (Seibert v. United States) 122 U. S. 284, 298, 30 L. ed. 1161, 1166, 7 Sup. Ct. Rep. 1190. The Missouri case referred to in that decision states a rule that we believe always to have been recognized in that state and others, as well as reinforced by other decisions of this court. Kansas v. Hannibal & St. J. R. Co. 81 Mo. 285, 293; St. Louis & S. F. R. Co. v. Apperson, 97 Mo. 300, 306, 10 S. W. 478; Rees v. Watertown, 19 Wall. 107, 117, 22 L. ed. 72, 75; Heine v. Levee Comrs. 19 Wall. 655, 658, 22 L. ed. 223, 225; Barkley v. Levee Comrs. 93 U. S. 258, 265, 23 L. ed. 893, 896; Meriwether v. Garrett, 102 U. S. 472, 501, 26 L. ed. 197, 200; Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, 6 Sup. Ct. Rep. 140, s. c. below, 4 Ky. L. Rep. 98, 101, 13 Fed. 97. The rule has other applications; e. g., Smith v. Reeves, 178 U. S. 436, 445, 44 L. ed. 1140, 1145, 20 Sup. Ct. Rep. 919; United States v. Kaufman, 96 U. S. 567, 569, 24 L. ed. 792.

It is unnecessary to repeat the strong and already often-repeated language of this court that will be found at the pages of the reports referred to. Some of it may go farther than was necessary or than we should be prepared to go in a different case, but to the extent of the principles that we have laid down we apprehend that it is not open to debate. It hardly could be except upon the question of construction: how far the liability to the tax was bound up with the mode of collection provided. But as the tax depended for its creation upon a sovereign act of the state, and was confided for its enforcement to officers of the state, it is decided that it cannot be enforced by others. The fact that it falls upon people who are not parties to the contract or the suit is an additional consideration in favor of the result; which no one would doubt if the judgment had been recovered and the present proceeding brought in another state. Of course it does not follow from the fact that a court has authority to issue a writ of mandamus to compel officers to perform their duty that it can perform that duty in their place. Authority is given by Missouri Rev. Stat. 1909, § 11,417, to the circuit court to enforce 'by mandamus or otherwise' an order to the county court to have the tax assessed, etc. But the words 'or otherwise' do not authorize the circuit court to collect the tax, but only allow the resort to other means beside mandamus to compel the county court to do so. At least until the supreme court of Missouri says otherwise, we should read them in that sense. We answer both questions: No.

Mr. Justice McKenna and Mr. Justice Pitney dissent.