The relators now move to dismiss the writ, because (1) an order awarding a peremptory writ of mandamus is not a 'final judgment;' and (2) the value of the matter in dispute does not exceed $5,000, inasmuch as no one of the relators will be 'entitled to receive of the tax collected so much as five thousand dollars, and no single tax-payer will be required to pay that amount of tax.' A motion to affirm, as allowed by section 5, rule 6, has not been united, as it very properly might have been, with this motion to dismiss.
As to the first objection, it is sufficient to say that the practice of the court has always been the other way. Our reports are full of cases in which jurisdiction of this kind has been entertained, and from 1867, when Riggs v. Johnson Co. 6 Wall. 166, was decided, until now, our power to review such orders as final judgments has passed substantially unchallenged. While the writ of mandamus, in cases like this, partakes of the nature of an execution to enforce the collection of a judgment, it can only be got by instituting an independent suit for that purpose. There must be-First, a showing by the relator in support of his right to the writ; and, second, process to bring in the adverse party, whose action is to be coerced, to show cause, if he can, against it. If he appears and presents a defense, the showings of the parties make up the pleadings in the case, and any issue of law or fact that may be raised must be judicially determined by the court before the writ can go out. Such a determination is, under the circumstances, a judgment in a civil action brought to secure a right; that is to say, process to enforce a judgment. The proceeding may be likened to a creditors' bill in equity, which is resorted to in aid of execution. The writ which is wanted cannot be had on application to a ministerial officer. It can only issue after a judgment of the court to that effect in an independent adversary proceeding instituted for that special purpose. Such a judgment is, in our opinion, a final judgment in a civil action, within the meaning of that term as used in the statutes regulating writs of error to this court.
The second objection is, to our minds, equally untenable. The writ which has been ordered in this case is not like that in Hawley v. Fairbanks, 108 U.S. 543, S.C.. 2 SUP. CT. REP. 846, to compel the levy of taxes to pay separate and distinct judgments in favor of several relators, who, for convenience and to save expense, united in one suit to enforce their respective rights, but to compel a tax collector to collect a single tax which has been levied for the joint benefit of all the relators, and in which they have a common and undivided interest. As in the cases of Shields v. Thomas, 17 How. 5, and The Connemara, 103 U.S. 754, all the relators claim under one and the same title, to-wit, the levy of a tax which has been made for their benefit. They have a common interest in the tax, and it is perfectly immaterial to the tax collector how it is divided among them. He has no controversy with them on that point; and if there is any difficulty as to the proportions in which they are to share the proceeds of his collections, the dispute will be among themselves, and not with him. He cannot act upon separate instructions from the several creditors. His duty is to collect the tax for the benefit of all alike. A payment of the judgment of one creditor would not relieve him from his obligation to collect the whole tax. The object of the proceeding is not to raise the sums due the relators, but to raise the whole tax of 10 mills on the dollar. As the matter stands each relator has the right to have the whole tax collected for the purpose of distribution among all the creditors. It is apparent, therefore, that the dispute is between the tax collector on one side and all the creditors on the other, as to his duty to collect the tax as a whole for division among them, after the collection is made, according to their several shares. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected. It is conceded that the amount of the tax is more than $5,000.
The motion to dismiss is overruled.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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