without authority of law. The Brig Caroline v. United States. 7 Cranch, 496; The Sarah, 8 Wheat. 391.

All other arguments failing, the attempt is made to show that certain remarks of the court in the case of Insurance Company v. Comstock (16 Wall. 258) support the proposed judgment of the court in the present case; but it is clear that no inference of the kind can properly be drawn from the opinion of the court in that case, for the plain reason that the court held that mandemus was the proper remedy in that case, and dismissed the writ of error solely upon that ground.

Prior to certain more recent decisions, it was an unsettled question whether or not a writ of error would lie from the Circuit Court to the District Court, where, in a proceeding in bankruptcy, the bankrupt demanded a trial by jury. Exceptions were taken in that case where the proceeding was in bankruptcy, and the Circuit Court refused to decide the question. Hearing was had here; and this court was of the opinion that mandamus was the proper remedy of the party, but did not deem it necessary to issue the writ, as it was suggested that the Circuit Court would at once conform to the views of this court. Since that time, it has been decided that a writ of error will not lie in such a case, which removes all doubt upon the subject and every pretence of inconsistency in our former decisions. Wiswall et al. v. Campbell et al., 93 U. S. 347; Hill v. Thompson, 94 id. 322.

Conclusive support to the proposition that nothing is to be inferred from the case of Insurance Company v. Comstock, to sustain the theory of the court in the present case, is found in the subsequent decision of the court, which is reported in the same volume. United States et al. v. Huckabee, 16 Wall. 414. In that case the court say that usually, where a court has no jurisdiction of a case, the correct practice is to dismiss the suit; but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction, and has given a judgment or decree for the plaintiff, or improperly decreed affirmative relief to a libellant. In such cases the judgment or decree in the court below must be reversed, else the party which prevailed there will have the benefit of the judgment or decree, though rendered by a court

which had no authority to hear and determine the matter in controversy. United States et al. v. Huckabee, supra; Coit v. Robinson, 19 Wall. 274.

Two cases are also reported in the twenty-third volume of Wallace's Reports to the same effect, the opinion of the court in the last of which was given by the present Chief Justice. In the first case, the court say that where the court below has no jurisdiction of the case in any form of proceeding, the regular course, if the judgment or decree is for the defendant or respondent, is to direct the cause to be dismissed; but if the judgment or decree is for the plaintiff or petitioner, the court here will reverse the judgment or decree, and remand the cause with proper directions, which, in the case supposed, must be to dismiss the writ, libel, or petition, as the subordinate court cannot properly hear and determine the matter in controversy.

Viewed in the light of these suggestions, it is clear that the decree of the Circuit Court should be reversed; and inasmuch as that court has no jurisdiction of the subject-matter in that form of proceeding, the directions should be that the writ of error be dismissed.

Instead of a writ of error, an appeal was taken in the second case, in which the Chief Justice said, that in order to sustain the jurisdiction of the Circuit Court in such a case, it must be a case in equity arising under and authorized by the Bankrupt Act, that a proceeding in bankruptcy from the time of its commencement by the filing of a petition to obtain the benefit of the act, until the final settlement of the estate of the bankrupt, is but one suit, and that the District Court, for all the purposes of its bankruptcy jurisdiction, is always open, and that the only remedy for the correction of errors in such cases is to be found in the supervisory jurisdiction of the circuit courts under the provisions of the first clause of the second section of the Bankrupt Act.

Corresponding views are expressed by the Chief Justice in two later cases, both of which are reported in the regular series of reports of the Supreme Court. Wiswall v. Campbell, 93 U. S. 348; Hill v. Thompson, 94 id. 322. Both of these cases show to a demonstration that the Circuit Court, in reversing the decree of the District Court, acted without jurisdic

tion; and yet the effect of the judgment of the court in this case is to leave the judgment of the Circuit Court, rendered without jurisdiction, in full force, which, in my judgment, is

error.

Six times, at least, the question in the case has been decided by this court, without a dissent, which would seem to be a sufficient justification of a member of the court who concurred in all of the decisions for adhering to the rule which those cases prescribe. For these reasons, I am of the opinion that the decree of the Circuit Court should be reversed, and that the case should be remanded to the Circuit Court with directions to that court to dismiss the writ of error sued out from that court to the District Court.

UNITED STATES v. NEW ORLEANS.

1. The legislative branch of the government has the exclusive power of taxation, but may delegate it to municipal corporations.

2. When such corporations are created, the power of taxation is vested in them as an essential attribute for all the purposes of their existence, unless its exercise be in express terms prohibited.

3. When, in order to execute a public work, they have been vested with authority to borrow money or incur an obligation, they have the power to levy a tax to raise revenue wherewith to pay the money or discharge the obligation, without any special mention that such power is granted.

4. A limitation imposed by statute upon them, restraining them from creating any indebtedness without providing at the same time for the payment of principal and interest, will not control a subsequent statute, which, withou' prescribing such limitation, authorizes them to incur a special obligation. 5. Bonds of the city of New Orleans, issued upon a subscription to the stock of a railroad company, under an ordinance which declared that the stock 'should remain for ever pledged for the payment of the bonds," are an absolute obligation of the city, the ordinance creating only a pledge of the stock by way of collateral security for their payment.

6. The indebtedness of a city is conclusively established by a judgment re covered against it in a court of competent jurisdiction; and in enforcing payment, the plaintiff is not restricted to any particular property or reve nues, or subject to any conditions, unless such judgment so provides.

ERROR to the Circuit Court of the United States for the District of Louisiana.

This was a petition presented in April, 1876, by Morris Ranger, the relator, for a writ of mandamus to compel the city of New Orleans to pay three judgments. The petition alleges that he had recovered them in the Circuit Court of the United States for an amount exceeding in the aggregate $59,000 against the city, on its bonds and coupons issued under the provisions of acts of the legislature of Louisiana, passed on the 15th of March, 1854, and designated as Nos. 108 and 109; that executions had been issued upon the judgments and returned unsatisfied; and that there was no property belonging to the city subject to seizure thereon.

It also alleges that in June, 1870, the city had sold eighty thousand shares of stock of the New Orleans, Jackson, and Great Northern Railroad Company, which it held, for the sum of $320,000, and that by the act No. 109, of 1854, these shares were for ever pledged for the payment of the bonds issued under its provisions; that the city should therefore be compelled to pay out of their proceeds so much of the judgments as appears on the face of the records to have been rendered upon the bonds; or, in case their payment cannot be enforced in this way, that it should be compelled to levy and collect a tax for that purpose, and also a tax to pay so much of the judgments as was rendered upon bonds and coupons issued under the act No. 108, of 1854; but that the mayor and administrators, who represent and exercise the powers of the city, refuse to pay the judgments out of any funds in their possession or under their control, or to levy a tax for their payment. The relator therefore prays the court to order them to show cause why a writ of mandamus should not be issued compelling them to apply the proceeds and to levy a tax as mentioned.

The order to show cause was accordingly issued; and the city authorities appeared and filed an answer to the petition, in which they admitted the recovery of a judgment by the relator, speaking of the three judgments as one, the issue of executions thereon, and their return unsatisfied, the sale of the eighty thousand shares of the capital stock of the New Orleans, Jackson, and Great Northern Railroad Company for $320,000, and the receipt of the money by their predecessors;

and set up as a defence to the prayer of the petition that the judgment was recovered upon certain bonds issued by the city to that company under the act of March 15, 1854, No. 109, making no mention of the act No. 108; that no tax for the payment of the principal of the bonds is directed to be levied by that act or any other act of the legislature; that, as respects the interest on the bonds, provision is made for its payment out of the back taxes due to the city, and inserted in its budget for 1876; and that the proceeds arising from the sale of the stock of the railroad company are not in the treasury of the city or under their control, having been used and expended by their predecessors. They therefore prayed that the petition be dismissed.

The relator demurred to this answer. The court overruled the demurrer and refused the writ; and from its judgment the case is brought to this court.

The city of New Orleans was incorporated under the name of "the mayor, aldermen, and inhabitants of the city of New Orleans," by an act of the legislature, approved Feb. 17, 1805, the sixth section of which provides:

"The said mayor and city council (aldermen) shall have power to raise by tax, in such a manner as to them may seem proper, upon the real and personal estate within said city, such sum or sums of money as may be necessary to supply any deficiency for the lighting, cleansing, paving, and watering the streets of said city; for supporting the city watch, the levee of the river, the prisons, workhouses, and other public buildings, and for such other purposes as the police and good government of the said city may require."

An act approved March 8, 1836, amending that act, constituted in effect a new charter, and divided the city "into three separate sections, each with distinct municipal powers." The fourth section provided:

"Each of said municipalities shall possess separate corporate rights, and are hereby declared to be distinct corporations, and shall possess generally such rights, powers, and capacities as are usually incident to municipal corporations, .. and, in general,