United States ex rel. Lansing v. Treasurer of Muscatine County.

"asks the appointment of the marshal of this court to collect the said tax, or proceed under him (the county collector) to make such collection," and for direction as to the interest and penalties he shall collect.

A sworn statement of similar character has been made at this term by the collector of the county of Muscatine, who also asks both the aid and direction of this court. Because the taxes have not been in fact collected in various counties in obedience to the mandates of this court, and because it is claimed that by reason of the facts before stated, and others not recited, that it is impracticable for the county collectors to comply with the writs of mandamus which have been issued, the judgment creditors of the various counties above mentioned have applied to the court for an order appointing the marshal to execute the writs of mandamus and make collections of the taxes. This is the question now before the court. That this court has the power to make such appointment, and that if the county officers either will not, or cannot themselves collect the taxes, that it is the duty of the court to appoint its own officers to execute its process, are points not longer open to controversy, because they have been precisely and definitely settled by the supreme court of the nation.

This is a power of a very delicate nature, and one which, although affirmed by the highest tribunal in the land to exist, we would not feel inclined to exert except in case of necessity. But when the necessity exists it is our duty, one from which there is no escape, to exercise the power. When does the necessity exist? Obviously when the county officers will not, or in consequence of public excitement, combinations, or suits in State courts, cannot execute the commands of the writs of this court to collect the taxes.

When a court issues its process it is bound to see that its lawful commands are neither disobeyed or

United States ex rel. Lansing v. Treasurer of Muscatine County.

evaded. That these writs of mandamus are lawful commands, and that the creditors of the counties are entitled to these writs, and also entitled to have them executed and obeyed, are no longer questions open to controversy, since they have been decided, not once simply, but time and time again by the supreme court of the United States. They are settled, and any inquiry whether the supreme court of the United States ought to have settled them otherwise, is fruitless, and without any practical value.

But this is not all that is settled. The supreme court of the United States has also decided that writs of mandamus are appropriate and proper process to enforce judgments against public corporations in this State; that the federal courts have the power, and that it is their duty to issue such writs; that they are in the nature of writs of execution, and that State courts have no more right to interfere with their execution than they have to interfere with the marshal when executing an ordinary fieri facias. The court cannot question the correctness of these decisions; and they are equally binding upon the State courts, because the decisions of the supreme court of the United States, as to the extent of the jurisdiction of the federal courts, and as to the validity and conclusiveness of their judgments, and as to what process may be resorted to to enforce them, and how such process shall be executed, bind Congress, bind all the federal courts, and bind also State legislatures and State courts and judges.

It so happens that every judge who is entitled to sit in this court is a citizen of this State; and none of them have failed to express and manifest their sympathy, in all proper ways, with those counties and cities which have, unfortunately, become so heavily indebted.

It would be no act of kindness to the people of these counties and cities for this court to either ignore the decisions of the supreme court or refuse to carry out

United States ex rel. Lansing v. Treasurer of Muscatine County.

the principles which it has decided, for in the end, and before long, we too would be compelled to obey its mandates. It is the superior tribunal, and we have no choice but to obey and carry out its decisions.

Nor would it be an act of kindness to these cities and counties to pursue any course or to say or to do anything which would encourage the hope that any change of views on the part of the supreme court was possible, or that by any litigation there remained any chance whatever to defeat the right of the bondholders to recover and collect their judgments. After a careful study of the decisions referred to, and of the grounds on which they are placed, we feel bound to say, and think it important that the people should understand, that all hope of escape from them by means of further litigation, either in the federal or State courts, is without any sort of foundation, is wholly illusory, and will deceive whoever relies upon it. So far as the State courts are concerned, they are, for the reasons before stated, utterly powerless to afford any relief, since they have no right whatever to interfere with the federal courts or their process or officers.

As respects the counties of Lee, Johnson, and Muscatine, it is the opinion of the court, upon the showing made to it, that it is its duty to appoint the marshal to execute the writs of mandamus; but in the two counties last named the marshal will not proceed to act unless it be shown to the court, or some one of its judges, that the county officer is disobeying the writ, or failing duly to cause the same to be executed.

In Lee county the showing made to the court is such as to entitle the relators to have the marshal appointed and directed to act at once.

It is proper to add, that this appointment will be rescinded whenever it is shown that the county officers are willing and able themselves to execute the writs of mandamus. It should be understood that the marshal

United States ex rel. Lansing v. Treasurer of Muscatine County.

is the officer of this court; that he is not subject, in the execution of his official duties, to the control of any proceeding or process of the State courts; that any interference with him is unauthorized; that any resistance to him is an offense against the laws of the United States, and punishable as such in the courts of the United States; and that it is the duty of the president to support him with all the power necessary to enable him to execute the process and orders of this court. The people of Iowa are law-abiding, and with this plain statement of what the law is, the members of this court gladly avail themselves of this occasion to declare that it is their firm conviction that the law will be respected and obeyed.

It only remains to add that the act of the Iowa legislature of last winter, discriminating especially against the taxes levied to pay judgments upon railroad bonds,* is in contravention of the provisions of the national constitution prohibiting the States from passing laws "impairing the obligation of contracts."

This is plain upon a comparison of that law with the act in force at the time when the bonds were issued (Code of 1851, §§ 116-124; Rev. of 1860, §§ 252-260), especially when such comparison is made in the light of the decisions of the supreme court of the United States,

*

Chapter 54 of the Iowa Session Acts of 1870, provides for the funding of county indebtedness. It declares that the supervisors of any county liable for an outstanding indebtedness exceeding five thousand dollars, may fund the same, and issue bonds of the county therefor. These bonds are salable by the county treasurer, at par, and the proceeds applicable to the county liabilities. Provision is made for the levy of a tax for the payment of interest, and ultimate redemption of the bonds.

Section 6 of the act then declares that the preceding provisions "shall not be construed to embrace the indebtedness of any county arising from bonds issued to aid in the construction of any railroad.”

A.

Allen v. Massey.

expounding the constitutional provision above mentioned. Van Hoffman v. City of Quincy, 4 Wall. 535; Bronson v. Kinsie, 1 How. 316; Butz v. City of Muscatine, 8 Wall. 575; Lee County v. Rogers, 7 Id. 175. LOVE, J., concurred.

ALLEN v. MASSEY.

Circuit Court, Eighth Circuit; District of Missouri, April T., 1870.

FRAUDULENT CONVEYANCES.-RIGHTS OF ASSIGNEE IN BANKRUPTCY.

Where household furniture in a dwelling inhabited by the owner and another person, was transferred by the owner to such other person, by bill of sale, and pointing out the property, but without any other circumstances to indicate an actual change of possession, and the parties continued to dwell together and to use the furniture, as before,-Held, the transfer was void against creditors, and under the statute of the State (Missouri) against fraudulent conveyances, as it had been construed by the supreme court of the State.

For the purpose of sustaining an action to set aside a transfer of property by a bankrupt as fraudulent against creditors, an assignee in bankruptcy is deemed to represent the creditors; and may impeach the transfer, notwithstanding it may be held valid and binding against the bankrupt himself.

Appeal from an order upon a petition of an assignee in bankruptcy.

In February, 1870, John A. Allen, as assignee in bankruptcy of William Downing, filed his petition in