in trust for the public for the uses and purposes for which acquired.137 This trust property cannot be reached by process and sold to satisfy their debts no more than can other trust property be sold to satisfy the individual debts of any other trustee.138 A judgment, therefore, in the absence of express statutory provisions against a public corporation, cannot be enforced by execution,139 neither is it a lien upon any of its property.140 Specific although the constitution of Ark., art. 16, § 1, forbids counties from issuing interest bearing evidences of indebtedness. 137 Mobile Transp. Co. v. City of Mobile, 128 Ala. 335, 30 So. 645; City of Oakland v. Oakland Water Front Co., 118 Cal. 160, 50 Pac. 277; City of Salem v. Lane & Bodley Co., 90 Ill. App. 560. A mechanic's lien cannot be established through a sale of the property of a munici pal corporation. Ransom v. Boal, 29 Iowa, 68; Mariner v. Mackey, 25 Kan. 669; Egerton v. Third Municipality, 1 La. Ann. 435. Taxes due cannot be seized under execution. Carter v. State, 42 La. Ann. 927, 8 So. 836. The only effect of a judgment rendered in an action against the state and authorized by an act of the legislature is to effect a settlement of disputed questions of law and fact. The judgment is only morally binding upon the state and it possesses no executory force. Darling v. City of Baltimore, 51 Md. 1; Burlington Mfg. Co. V. Board of Courthouse & City Hall Com'rs, 67 Minn. 327, 69 N. W. 1091; Foster v. Fowler, 60 Pa. 27; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596. A mechanic's lien cannot run against public property. Brown v. Gates, 15 W. Va. 131. But see City of Louisville v. University of Louisville, 54 Ky. (15 B. Mon.) 642. See, also, Florman v. School Dist. No. 11, 6 Colo. App. 319; Monaghan v. City of Philadelphia, 28 Pa. 207. 138 Sioux City v. Weare, 59 Iowa, 95. A judgment may be satisfied by the issue of bonds. Lowber v. City of New York, 7 Abb. Pr. (N. Y.) 248. See, also, Van Horn v. Kittitas Co., 46 App. Div. 623, 61 N. Y. Supp. 1150. 139 Weaver v. Ogden City, 111 Fed. 323; City of Virden v. Fishback, 9 Ill. App. 82; Randolph County v. Ralls, 18 Ill. 29; King v. McDrew, 31 Ill. 418; City of Olney v. Harvey, 50 Ill. 453; City of Danville v. Mitchell, 63 Ill. App. 647; City of Morrison v. Hinkson, 87 Ill. 587; City of Geneva v. People, 98 Ill. App. 315; Village of Dolton v. Dolton, 196 Ill. 154, 63 N. E. 642; Gabler v. Elizabeth City, 42 N. J. Law, 79; Lyon v. Elizabeth City, 43 N. J. Law, 158; Presidio County v. City Nat. Bank (Tex. Civ. App.) 44 S. W. 1069. But see Ware v. Pleasant Grove Tp., 9 Kan. App. 700, 59 Pac. 1089; Littlefield v. Inhabitants of Greenfield, 69 Me. 86; Gaskill v. Dudley, 47 Mass. (6 Metc.) 546; Coler v. Coppin, 7 N. D. 418, 75 N. W. 795; Gordon v. Thorp (Tex. Civ. App.) 53 S. W. 357. An execution may run against a city since there is no statute expressly prohibiting it. See, also, Weaver v. City & County of San Francisco, 111 Cal. 319. 140 People v. Superior Ct. of Cook property may by law, however, be made subject to process or the collection of a judgment authorized in a designated manner.141 The remedy ordinarily available is writ of mandamus directed to the proper officers to compel the levy of a tax sufficient to pay the obligation,142 or where the judgment is against the state to secure an appropriation from the legislature for its payment.143 This principle has been universally adopted on the grounds of public policy since is is not considered permissible or advisable that the state or a governmental agent should be hampered or prevented through a loss of its public property from exercising its public powers or carrying out its governmental functions.144 It has, County, 55 Ill. App. 376; Whiteside v. School Dist. No. 5, 20 Mont. 44, 49 Pac. 445. 141 United States v. City of New Orleans, 31 Fed. 537; Higgins v. San Diego Water Co., 118 Cal. 524, 45 Pac. 824, 50 Pac. 670; Goldsmith V. San Francisco County Sup'rs, 115 Cal. 36, 46 Pac. 816; Buck v. City of Eureka, 119 Cal. 44, 50 Pac. 1065; Mason v. Commissioners of Roads & Revenues, 104 Ga. 35, 30 S. E. 513; City of Cairo v. Allen, 3 Ill. App. 398; Carney v. Village of Marseilles, 136 Ill. 401, 26 N. E. 491; People v. Chicago & A, R. Co., 193 III. 364, 61 N. E. 1063; Osborne County Com'rs v. Blake, 25 Kan. 356; Fernandez v. City of New Orleans, 50 La. Ann. 485, 23 So: 611; State v. City of New Orleans, 45 La. Ann. 1389, 14 So. 291; Hammond v. Place, 116 Mich. 628, 74 N. W. 1002; Griswold v. City of Ludington, 117 Mich. 317, 75 N. W. 609; State v. Cascade County Com'rs, 16 Mont. 271, 40 Pac. 595; McCully v. Tracy, 66 N. J. Law, 489, 49 Atl. 436; Lorence v. Bean, 18 Wash. 36, 50 Pac. 582; State v. City ..of Milwaukee, 20 Wis. 87. 142 Miller v. McWilliams, 50 Ala. 427. Neither can the private prop Abb. Corp. Vol. III — 38. erty of inhabitants be seized under execution. Emeric v. Gilman, 10 Cal. 404; City of Chicago v. Sansum, 87 Ill. 182; Chase v. Morrison, 40 Iowa, 620; Lockard v. Decatur County Com'rs, 10 Kan. App. 316, 62 Pac. 547; State V. Cape Girardeau County Ct. (Mo.) 3 S. W. 844; State v. Norvell, 80 Mo. App. 180; Alter v. State, 62 Neb. 239, 86 N. W. 1080. Neb. Code, § 482, relative to judgments becoming dormant, applies to those against municipal corporations; a mandamus proceeding, however, to compel a levy and collection of taxes will be regarded as the equivalent of issuing an execution. 143 Clements v. State, 77 N. C. 142. 144 Brinckerhoff v. Board of Education of N. Y., 37 How. Pr. (N. Y.) 499. See, also, Meriwether v. Garrett, 102 U. S. 472, where the court say: "And the decree further adjudged that all the property within the limits of the territory of the city of Memphis was liable and might be subjected to the payment of all the debts of the city, and that such liability would be enforced thereafter, from time to however, been modified in some instances by confining its application to property absolutely essential to the existence of the corporation or necessary and useful to the exercise of governmental powers or the performance of public duties.145 Property held by a public corporation as an investment of funds merely, for the purposes of income or for sale and unconnected with purposes of municipal government,146 or in its proprietary or private capacity,147 can be seized upon execution for the debts of the corporation. § 1168. Costs and the right of appeal. The right of a successful litigant to recover costs against a public corporation is limited usually by statutory provision.148 The sovereign may, in giving its consent to be sued or permitting the assumption of liability by its subordinate agents, impose restric time, in such manner as the court might direct. This decree is manifestly erroneous in its main provisions. It proceeds upon the theory that the property of every description held by the municipality at the time of its extinction, whether held in its own right or for public uses, including also in that designation its uncollected taxes, were chargeable with the payment of its debts, and constituted a trust fund, of which the circuit court would take possession and enforce the trust; and that the private property of the inhabitants of the city was also liable, and could be subjected by the circuit court to the payment of its debts. In both particulars the theory is radically wrong. What, then, is the property of a municipal corporation, which, upon its dissolution, a court of equity will lay hold of and apply to the payment of its debts? We answer, first, that it is not property held by the corporation in trust for a private charity, for in such property the corporation possesses no interest for its own uses; and, secondly, that it is not property held in trust for the public, for of such property the corporation is the mere agent of the state. In its streets, wharves, cemeteries, hospitals, court houses, and other public buildings, the corporation has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other use can they be appropriated without special legislative sanction." 145 City of New Orleans v. Home Mut. Ins. Co., 23 La. Ann. 61. 146 Darlington V. City of New York, 31 N. Y. 164. 147 City of New Orleans v. Morris, 3 Woods (C. C.) 115, Fed. Cas. No. 10,183; City of Birmingham v. Rumsey, 63 Ala. 352. 148 Village of Sparta v. Booroni, 129 Mich. 555, 89 N. W. 435, 90 N. W. 681; Harkness v. City of Independence, 56 Mo. App. 527; Hunt v. City of Oswego, 45 Hun (N. Y.) 150 tive conditions. The right is a statutory one 149 but in a recovery of costs by a public corporation the ordinary rule applies." A state or one of its subordinate agencies in all civil proceedings in which it may legally participate possesses the rights usually accorded private litigants, including that of appeal.151 This privilege does not, however, usually apply to criminal proceedings.1 305; Brewster v. City of Hornellville, 35 App. Div. 626, 54 N. Y. Supp. 915; State v. Simmons, 118 N. C. 9; Sandberg v. State, 113 Wis. 578, 89 N. W. 504. 149 Dover v. State, 45 Ala. 244; Town of Grafton v. Mooney, 89 Ill. App. 622. A city is not exempt from paying costs in a personal injury case; it is only where it sues defendants as a representative of a state that a nonliability for costs exists. State v. Dorland, 106 Iowa, 40, 75 N. W. 654; In re Town of Hempstead, 36 App. Div. 321, 55 N. Y. Supp. 345. Fees of an expert are taxable in a proceeding by the people to investigate the financial condition of a town. Hallihan v. Village of Ft. Edwards, 26 Misc. 422, 57 N. Y. Supp. 162; Peppard v. City of Cincinnati, 6 Ohio N. P. 57; City of Oklahoma City v. Welsh, 3 Okl. 288, 41 Pac. 598; Henderson V. Walker, 101 Tenn. 229, 47 S. W. 430; State v. Buchanan (Tenn. Ch. App.) 62 S. 152 W. 287; Noyes v. State, 46 Wis. 250. But see Mariner v. Mackey, 25 Kan. 669. 150 Nixon v. City of Biloxi, 76 Miss. 810, 25 So. 664. But where an attorney is retained by the city at an annual salary, no counsel fees should be awarded it as damages on the entry of a decree in its fa vor. 151 Hanna v. City of Kankakee, 34 Ill. App. 186; Holmes v. City of Mattoon, 111 Ill. 27. Municipal corporations may be given the right of appeal without giving bonds. Yandell v. Madison County, 79 Miss. 212, 30 So. 606; State v. California Min. Co., 15 Nev. 234; Boon v. City of Utica, 4 Misc. 583, 25 N. Y. Supp. 846; City of Scranton v. Silkman, 113 Pa. 191; Lyman County v. Lyman County Com'rs, 14 S. D. 341, 85 N. W. 597; Scott v. Forrest, 13 Wash. 166, 42 Pac. 519. 152 Asbell v. State, 60 Kan. 51, 55 Pac. 338. But see Kansas City v. Clark, 68 Mo. 588. |