Memphis v. Brown

delivered the opinion of-the court.

In Memphis v. United States (supra, p. 293), we decided that the mandamus to compel the levy and collection of a tax beyond the rate mentioned in the act of Feb. 13, 1854, and sufficient to pay the judgment recovered by the relator, was authorized by the laws of the State, and was properly awarded. That decision covers the first assignment of error in this case, and leaves it without any foundation.

The; other assignments are of minor importance. Some of them deny the power of the Circuit Court to define the extent of its own writ of execution. They assert that the court could not rightfully decide that its order to levy a tax upon all the property of the city meant to include the capital of merchants, taxable under the law of the State for other purposes. There is nothing in these objections. A mandamus to collect a tax for the payment of a judgment, or a mandamus to pay a judgment, is process in execution, and nobody heretofore has ever questioned the power of a court to control its own final process.

The only other question which requires attention is, whether in exercising that control the court erred by ordering that the taxable capital of merchants for the year 1875, as theretofore returned and assessed by the city for taxation for other purposes, be included within the property ordered to be taxed for the payment of the judgment. The allegation is, not that merchants’ capital is not liable to taxation at a uniform rate *303 with other taxable property of the city, but that the statute of the State under which the assessment was made ivas unjust, oppressive, and in violation of the State Constitution. We are not convinced that this is a question we can consider in this case. The merchants do not appear to have made any complaint when taxes for general purposes were imposed. It is only when the special tax for the payment of the relator’s judgment is ordered that they object. If the mode prescribed by the statute was in conflict with the State Constitution, they had a sufficient remedy in the State courts. To those courts they resorted (Merchants v. The City of Memphis, and Schafer, tax collector, a manuscript case decided by the Supreme Court at September Term, 1876); and we understand that court to have held, in substance, that the assessments were not illegal. Besides, we are not convinced that, if the question were an open one for our consideration, the mode prescribed by the statute for making the assessment was necessarily in conflict with the Constitution. The objection is therefore overruled.

We have considered the case without reference to the question whether the merchants who filed their bill against-the city and Brown were in a situation to intervene in the action at law between Brown and the city, in the manner attempted by them. It may be doubted whether on their petition the court could be asked to correct its judgment in that case. But waiving this, we are of opinion that no error in the action of the court is shown.

Judgment affirmed.