MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The legislature of Louisiana, at its session of 1874, by an act known as Act No. 3 of 1874, provided for an issue of bonds, to be designated as consolidated bonds of the State, for the purpose of consolidating and reducing the floating and
Section 7 of the act is as follows:—
"That a tax of five and a half mills on the dollar of the assessed value of all real and personal property in the State is hereby annually levied, and shall be collected for the purpose of paying the interest and principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other. And that it shall be deemed a felony for the fiscal agent or any officer of the State or board of liquidators to divert the said fund from its legitimate channel as provided, and upon conviction the said party shall be liable to imprisonment for not more than ten years nor less than two, at the discretion of the court. If there shall, during any year, be a surplus arising from said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act, said purchases to be made by the said board of liquidation, from the lowest offers, after due notice: Provided, that the total tax for interest and all other State purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem said bonds until the same shall be fully discharged."
Immediately after the passage of this act the State adopted an amendment to its Constitution, as follows:—
"The issue of consolidated bonds authorized by the General Assembly of the State, at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof or the levy and collection of the tax therefor; to secure such levy, collection, and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the State to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury."
Under this authority, consolidated bonds to the amount of about twelve million dollars were issued. John Elliott, Nicholas Gwynn, and Henry S. Walker are the holders and bearers of these bonds to the amount of $20,000, and of unpaid coupons due Jan. 1, 1880, to the amount of $78,900. The bonds, in accordance with the requirements of the act under which they were issued, are signed by the governor, auditor,
On the first day of January, 1880, a new Constitution of Louisiana went into effect. A portion of that Constitution, called the "Debt Ordinance," is in these words:—
"STATE DEBT.
"ART. 1. Be it ordained by the people of the State of Louisiana, in convention assembled, That the interest to be paid on the consolidated bonds of the State of Louisiana be and is hereby fixed at two per cent per annum for five years from the first day of January, 1880, three per cent per annum for fifteen years, and four per cent per annum thereafter, payable semi-annually; and there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all State tax being hereby fixed at six mills: Provided, the holders of consolidated bonds may, at their option, demand in exchange for the bonds held by them, bonds of the denomination of five dollars, one hundred dollars, five hundred dollars, one thousand dollars, to be issued at the rate of seventy-five cents on the dollar of bonds held and to be surrendered by such holders, the said new issue to bear interest at the rate of four per cent per annum, payable semi-annually.
"ART. 2. The holders of consolidated bonds may at any time present their bonds to the treasurer of the State, or to an agent to be appointed by the governor, — one in the city of New York and the other in the city of London, — and the said treasurer or agent, as the case may be, shall indorse or stamp thereon the words, interest reduced to two per cent per annum for five years from January 1, 1880, three per cent per annum for fifteen years, and four per cent per annum thereafter: Provided, the holder or holders of said bonds may apply to the treasurer for an exchange of bonds, as provided in the preceding article.
"ART. 3. Be it further ordained, That the coupon of said consolidated bonds falling due the first day of January, 1880, be and the same is hereby remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the State government."
Article 209 of the same Constitution provides that "the State tax on all property for all purposes whatever, including expenses of government, schools, levees, and interest, shall not exceed in any one year six mills on the dollar of its assessed valuation."
All the taxes allowed by the new Constitution have been levied for the year 1880, but no proceedings have been taken to levy and collect the five and a half mill tax under the act of 1874. About $300,000 is in the treasury of the State, collected under the levy imposed by the act of 1874 to meet the coupons falling due January, 1880; but the treasurer refuses to apply it to the payment of the coupons, and claims to hold it only for the purposes to which it was to be appropriated by the terms of the new Constitution. There are also taxes levied for former years under the act of 1874, which remain uncollected, and are subject to future collection and payment into the treasury under the operation of the collection laws.
In this condition of things, said Elliott, Gwynn, and Walker, on the 16th of January, 1880, commenced a suit in equity in the Circuit Court of the United States for the Eastern District of Louisiana, against the several officers of the State composing the board of liquidation. The prayer of the bill is that it may be "ordered, adjudged, and decreed" that the act No. 3, of 1874, "so far as your orator's interests herein above declared are concerned, was all the time from its passage, has been, and, at the time of the rendition of the decree herein prayed for, is a valid and subsisting law of the State of Louisiana; that the act aforesaid, the constitutional amendment of 1874, and the several bonds and coupons of interest, held and owned by your orators as aforesaid, separately and together, constituted, were, and are, good, valid, subsisting, and binding contracts between the State aforesaid and the bearers and holders of the consolidated bonds and coupons, the obligation of which contract cannot be lawfully or constitutionally impaired; and that, under and by virtue of such contract, your orators were and are entitled to take and enjoy all the rights, privileges, taxes, and moneys, particularly set forth and mentioned in act No. 3, and
On the 26th of January, 1880, the same parties as relators filed a petition in a State court of Louisiana against the auditor and treasurer of state and the several members of the
This suit was afterwards removed into the Circuit Court of the United States for the Eastern District of Louisiana.
Upon final hearing the Circuit Court denied the relief prayed for in each of the suits, because, as stated in the conclusions of law which were filed in connection with the findings of fact, it
From a judgment and a decree to that effect a writ of error was brought and an appeal taken.
The two suits may properly be considered together here, as they were below, because they present substantially the same questions.
We have no doubt it was the intention of the State of Louisiana to enter into a formal contract with each and every holder of bonds so issued under the act of 1874, to levy and collect an annual tax of five and one-half mills on the dollar of the assessed value of all the real and personal property in the State, and to apply the revenue derived therefrom to the payment of the principal and interest of the bonds, and to no other purpose. By the obligation so entered into it was also agreed, that the tax levied by the act and confirmed by the Constitution should be a continuing annual tax until the bonds, principal and interest, were paid in full; that the appropriation of the revenue derived therefrom should be a continuing annual appropriation, and that no further authority than that contained in the act should be required to enable the taxing officers to levy and collect the tax, or the disbursing officers to pay out the money as collected in discharge of the obligation of the bonds. Whatever may be ordinarily the effect of a promise or a pledge of faith by a State, the language employed in this instance shows
It is equally manifest that the object of the State in adopting the "Debt Ordinance" in 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay the interest falling due in January, 1880, as well as the principal and interest maturing thereafter.
The bonds and coupons which the parties to these suits hold have not been reduced to judgment, and there is no way in which the State, in its capacity as an organized political community, can be brought before any court of the State, or of the United States, to answer a suit in the name of these holders to obtain such a judgment. It was expressly decided by the Supreme Court of the State in State, ex rel. Hart, v. Burke, 33 La. Ann. 498, that such a suit could not be brought in the State courts, and under the Eleventh Amendment of the Constitution no State can be sued in the courts of the United States by a citizen of another State. Neither was there when the bonds were issued, nor is there now, any statute or judicial decision giving the bondholders a remedy in the State courts or elsewhere, either by mandamus or injunction, against the State in its political capacity, to compel it to do what it has agreed should be done, but which it refuses to do.
These, then, are suits by creditors at large, of the class provided for in the act of 1874, to compel, by judicial process, the officers of the State to enforce the provisions of the act, when the State, by an amendment to its Constitution, has undertaken to prohibit them from doing so, and when the court, if it requires an officer to proceed, cannot protect him with a judgment to which the State is a party. The persons sued are the executive officers of the State, and they are proceeded against in their official capacity. The money in the treasury is the property of the State, and not in any legal sense the property of the bond or coupon holders. If it be lost or destroyed, the loss will fall alone on the State or its agents, and the bondholders will be entitled to payment in full from other sources. True, the money was raised to pay this particular class of debts,
That the Constitution of 1879 on its face takes away the power of the executive officers to comply with the terms of the act of 1874 cannot be denied. As against everything but the outstanding bonds and coupons, this Constitution is the fundamental law of the State, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders. The question, then, is whether the contract can be enforced, notwithstanding the Constitution, by coercing the agents and officers of the State, whose authority has been withdrawn in violation of the contract, without the State itself in its political capacity being a party to the proceedings.
The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.
The parties prosecuting the suits do not, in direct terms, ask for the payment of the bonds and coupons they hold. In fact, this seems to have been purposely avoided, for in the suit for mandamus the petition was amended before the hearing by striking out all that would have the effect of confining the command of the writ to such a payment, and left the prayer for an order requiring the use of the money raised under the act of 1874 for the redemption and retirement generally of all the bonds and coupons of the issue. In the suit in equity, while it was asked that the "Debt Ordinance" of 1879 might be declared invalid as against the complainants, payment of the
It is insisted, however, that the money in the treasury collected from the tax levied for the year 1879 constitutes a trust fund of which the individual defendants are ex officio trustees, and that they may be enjoined as such trustees from diverting it from the purposes to which it was pledged under the contract. The individual defendants are the several officers of the State, who, under the law, compose the board of liquidation. That board is, in no sense, a custodian of this fund. Its duty was to negotiate the exchange of the new bonds for the old on the terms proposed. It had nothing to do with levying the tax, collecting the money, or paying it out further than by purchasing the bonds with any surplus there might be from time to time in the treasury over what was required to meet the interest. The provision in the law that it shall be the duty of the auditor, treasurer, and the board, respectively, to collect the tax, pay the interest, and redeem the bonds evidently means no more than that the auditor and treasurer shall perform their respective duties under the general laws in the assessment and collection of the tax, and shall pay in the usual manner the interest and principal of the bonds as they respectively fall due, and that the board shall purchase and retire the bonds whenever there is a surplus, which, under the law, is to be used for that purpose.
The treasurer of state is the keeper of the treasury, and in that way is the keeper of the money collected from this tax, just as he is the keeper of other public moneys. The taxes
In this connection there is much that is instructive in Reg. v. Lords Commissioners of the Treasury, Law Rep. 7 Q.B. 387. There money had been appropriated by Parliament for the payment of costs of a particular character, and an application was made for a mandamus to compel the Lords Commissioners of the Treasury to pay certain bills which had been properly taxed; but although the court was emphatic in its declaration that payment ought to be made, the writ was refused because the Lords Commissioners held "the money as the servants of the Crown, and no duty was imposed upon them as between them and the persons to whom the money was payable." Lord Chief Justice Cockburn, in his opinion, said (p. 394): "Though I quite agree that according to the appropriation act they (the Lords Commissioners) were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent upon them to do what I cannot hesitate to say they ought to have done, except as servants of the Crown; because in that character they have received the money, and in no other." And Blackburn, J. (p. 399): "It seems to me that the obligation, such as it is, is upon her Majesty, to be discharged through her servants, and you cannot proceed therefor against the servants." So, here, the obligation is all on the State, to be discharged through its
There is nothing in any of the cases in this court that are relied on which, to our minds, authorizes any such relief as is asked. In Osborn v. Bank of the United States, 9 Wheat. 738, which is the leading case, and cited as authority in all the others, the object was to prevent money which had been unlawfully taken out of the bank by the officers of the State from getting into the treasury. The money was, in legal effect, stopped while passing from the bank to the treasury. The controlling facts are thus stated by Chief Justice Marshall in the opinion (p. 868): "But when we reflect that the defendants, Osborn and Harper, are incontestably liable for the full amount of the money taken out of the bank; that the defendant, Currie, is also responsible for the sum received by him, it having come to his hands with full knowledge of the unlawful means by which it was acquired; that the defendant, Sullivan, is also responsible for the sum specifically delivered to him, with notice that it was the property of the bank, unless the form of having made an entry on the books of the treasury can countervail the fact, that it was, in truth, kept untouched, in a trunk, by itself, as a deposit, to await the event of the pending suit respecting it; we may lay it down as a proposition, safely to be affirmed, that all the defendants in the cause were liable in an action at law for the amount of this decree. If the original injunction was properly awarded, for the reasons stated in the preceding part of this opinion, the money, having reached the hands of all those to whom it afterwards came with notice of that injunction, might be pursued, so long as it remained a distinct deposit, neither mixed with the money of the treasury, nor put into circulation... . The money of the bank had been taken, without authority, by some of the defendants, and was detained by the only person who was not an original wrongdoer, in a specific form; so that detinue might have been maintained for it, had it been in the power of the bank to prove the facts which are necessary to establish the identity of the property sued for." Under this state of facts the order for its return involved no question of power to interfere with what was actually in the treasury. The officers stood in the place
In Davis v. Gray, 16 Wall. 203, the receiver of a land-grant railroad obtained an injunction against the Governor and the Commissioner of the General Land-Office of Texas to restrain them from incumbering, by patents to others, lands which had been contracted to the railroad company. The legal title was in the State, but the equitable title in the company. The specific tracts in dispute were, by the contract which had been made, segregated from the public domain and set apart for the company. The case rests on the same principle it would if patents had been actually issued to the company, and the State, through its officers, was attempting to place a cloud on the title by granting subsequent patents to others.
Board of Liquidation v. McComb, 92 U.S. 531, arose under the same act of 1874 that we are now considering. The board was there enjoined, at the instance of bondholders, from admitting to the privileges of the compromise proposed by the State certain persons other than those originally provided for and on
In this case, however, there is no such trust. As has already been said, the board is charged with no duty in respect to the taxes, except in connection with the purchase of bonds whenever there are funds which can be used in that way. The auditor and treasurer are required to audit and pay the coupons as they are presented; but that does not make them trustees for the bondholders of the money in the treasury out of which the payment is to be made. They may draw on the fund raised to make the payment, but that is the extent of their official control over it. The law has never made it a part of their official duty to separate from the other moneys in the treasury that realized from the taxes in question, and to hold it in trust for the bondholders. The State has contracted not to use this money in any other way than to pay the debt; but, as against the State, the officers have no right to say they will keep it for that purpose only. It may be, without doubt, easily ascertained from the accounts how much of the money on hand is applicable to the payment of this class of debts; but the law nowhere requires the setting apart of this fund any more than others from the common stock. In the treasury all funds are mingled together, and kept so until called for to meet specific demands.
In United States v. Lee, 106 U.S. 196, it was held that the officers of the United States, holding in their official capacity the possession of lands to which the United States had no title, could be required to surrender their possession to the rightful owner even though the United States were not a party to the judgment under which the eviction was to be had. Here, however, the money in question is lawfully the property of the
Little need be said with special reference to the suit for mandamus. In this no trust is involved; but the simple question presented is, whether a single bondholder, or a committee of bondholders, can, by the judicial writ of mandamus, compel the executive officers of the State to perform generally their several duties under the law. The relators do not occupy the position of creditors of the State demanding payment from an executive officer charged with the ministerial duty of taking the money from the public treasury and handing it over to them, and, on his refusal, seeking to compel him to perform that specific duty. What they ask is that the auditor of state, the treasurer of state, and the board of liquidation may be required to enforce the act of 1874, and "carry out, perform, and discharge each and every one of the ministerial acts, things, and duties respectively required of them, ... according to the full and true intent and purport of that act." Certainly no suit begun in the Circuit Court for such relief would be entertained, for that court can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. Bath County v. Amy, 13 Wall. 244; Davenport v. County of Dodge, 105 U.S. 237. Our attention has been called to no case in the courts of Louisiana in which such general relief has been afforded; and the jurisdiction of the Circuit Court was, therefore, in no way enlarged through the operation of the removal acts, even if this is a case which was properly removed, — a question we do not deem it necessary now to decide. The remedy sought, in order to be complete, would require the court to assume all the executive authority of the State, so far as it related to the enforcement of this law, and to supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full, and that, too, in a proceeding in which the State, as a State, was not and could not be made a party. It needs no argument to show that the political power cannot be thus
Judgment affirmed.
Decree affirmed.
MR. JUSTICE FIELD and MR. JUSTICE HARLAN dissented.
MR. JUSTICE FIELD.
I am not able to concur in the judgment in these cases, and I will briefly state my reasons.
I admit that the rule of the common law that the sovereign cannot be held amenable to process in his own courts without his consent, is applied in this country to the State, under which designation are included the people within its territorial limits, in whom resides whatever sovereignty the State possesses. But they act and speak in this country, at least in times of peace, only through the Constitution and laws. For their will we must look to these manifestations of it. If in that way they consent to suits, either directly against themselves by name or against any of their authorized agents, there can be no reasons of policy or of law against issuing process in proper cases to bring them or their agents before the court. And if in that way, that is, by their Constitution or laws, they direct their officers to do or omit certain things, in the doing or omission of which individuals are interested, and they provide appropriate remedies to compel or enjoin the performance of those things, there can be no reason why such remedies should not be resorted to when private rights are involved.
And such is the case with respect to the subjects of the
That the character and object of these suits may more clearly appear, I will briefly give the history of the action of the State. Prior to 1874 Louisiana had contracted an indebtedness amounting to about eighteen millions of dollars. She asserted that a large portion of it had been fraudulently contracted; while the holders contended that their claims were valid and that she was legally and equitably bound therefor. Under these circumstances, and with a view to determine the conflicting claims of the parties, and to liquidate and settle her indebtedness, she proposed to issue new bonds for sixty per cent of the alleged indebtedness, upon the surrender of the claims; and, to induce the surrender, offered to make various enactments to secure the principal and interest of the new bonds. In 1874 she passed an act, known as act No. 3 of the laws of that year, entitled "An Act to provide for funding obligations of the State by exchange for bonds; to provide for principal and interest of said bonds; to establish a board of liquidation; to authorize certain judicial proceedings against it; to define and punish violations of this act; to prohibit certain officers diverting funds, except as provided by law, and to punish violations therefor; to levy a continuing tax and provide a continuing appropriation for said bonds; to make a contract between the State and holders of said bonds; to prohibit injunctions in certain cases; to limit the indebtedness of the
By this act the governor, lieutenant-governor, auditor, treasurer, secretary of state, and speaker of the House of Representatives, and a seventh person to be selected by them, called a fiscal agent, were constituted a board of liquidation, and were authorized to issue bonds of the State, to be called consolidation bonds, payable in forty years, with interest at seven per cent, and to exchange them for valid outstanding bonds and auditor's warrants at the rate of sixty cents on the dollar. The interest was to be payable semi-annually, on the first of January and July of each year; and for it coupons were to be annexed to the bonds.
The act levied an annual tax of five and a half mills on the dollar of the assessed value of all real and personal property in the State, and declared that it should be collected for the purpose of paying the principal and interest of the consolidated bonds, and that the revenue derived therefrom was thereby "set apart and appropriated for that purpose, and no other," and that it should be a felony for the fiscal agent or any officer of the State or of the board of liquidation to divert the fund from its legitimate channel. It also declared that this tax, which is called an interest tax, "shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board respectively, to collect said tax annually, and pay said interest and redeem the said bonds until the same shall be fully discharged."
One section also provided "that any judge, tax-collector, or any officer of the State obstructing the execution of this act, or any part of it, or failing to perform his official duty thereunder, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment not exceeding five years and by fine not exceeding two thousand dollars, at the discretion of the court."
But, as though this act was not of itself a sufficient assurance of the unalterable purpose of the State to fulfil the promise it contained, an amendment to her Constitution was proposed and adopted, of which the following is the first section:—
"The issue of consolidated bonds, authorized by the General Assembly of the State, at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor; to secure such levy, collection, and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year, until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the State to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury."
It would puzzle the wit of man to find anywhere in the legislation of the world a more perfect assurance of the fixed purpose of a State to keep faith with her creditors, or of a pledge of a portion of her revenues for their payment, or of the submission of her officers to the compulsory process of the judicial tribunals, if necessary, to carry out her engagements. With the knowledge that the Federal Constitution ordains "that no State shall pass any law impairing the obligation of contracts," Louisiana proclaims that each provision of the act shall be and is thereby declared to be a contract between her and each and every holder of the bonds issued under the act. And the constitutional amendment reiterates substantially the same thing by declaring that the issue of the consolidated bonds
Under this act and the constitutional amendment, obligations of the State amounting to over $12,000,000 were surrendered, and bonds taken for sixty per cent of their amount, which are held all over the country. The complainants in the injunction suit, and the petitioners for the mandamus, hold for themselves and others, whom they represent, $900,000 of the bonds. The interest on them has not been paid, and yet a portion of the tax levied to meet such interest has been collected, and is now in the hands of the treasurer of the State, one of the board of liquidation. The amount is admitted to be about $300,000, and as collections were making when this admission was given, there is now probably a much larger amount in his hands. In both suits it is alleged that the treasurer and other officers of the State intend to use the funds thus collected for other purposes than the payment of the interest. In one of them an injunction is asked against such a perversion of the funds. In the other a mandamus is asked to compel the application of the funds to the payment of the interest, and also the collection of the taxes authorized by the act of 1874, and the constitutional amendment of that year, to meet further interest as it shall become due.
Why should not both these prayers be granted?
The only answer offered is, that in 1879 Louisiana adopted a new Constitution, which reduced the interest on the consolidated bonds to two per cent per annum for five years, to three per cent for fifteen years afterwards, and to four per cent thereafter, with a proviso that the holders of the bonds might take new bonds for seventy-five per cent on the dollar, drawing four per cent interest.
The new Constitution also directed that the coupon of the consolidated bonds falling due Jan. 1, 1880, should be remitted, and that the interest taxes collected for its payment should be transferred to defray the expenses of the State government. The change in the rate of interest and the remission of the coupon falling due Jan. 1, 1880, were made
Is this inhibition against the repudiation by the State of her engagements of any efficacy? The majority of the court answer No. I answer, adhering to the doctrines taught by a long line of illustrious judges preceding me, "Yes, it is;" and though now denied, I feel confident that at no distant day its power will be reasserted and maintained. In that faith I dissent from the judgment of my associates, and I shall continue to do so on all proper occasions, until the prohibition inserted in the Constitution as a barrier against the agrarian and despoiling spirit, which both precedes and follows a breach of public faith, is restored to its original vigor.
The question whether the court will restrain the diversion of the funds in the hands of the treasurer, a member of the board of liquidation, is to be considered precisely as though the new Constitution had never been adopted. The inhibition of the Federal Constitution is upon the State and not merely upon her legislature. All the authority which her people can confer, whether by constitutional enactment or legislative provision, is subject to the inhibition. Her people are at all times under the Constitution of the United States, subject to its restrictions as they are entitled to its privileges. They cannot lawfully insert in any constitution or organic law provisions contravening that instrument. They cannot authorize their legislature to pass a bill of attainder, or an ex post facto law, or a law impairing the obligation of contracts, nor can they embody in their Constitution clauses amounting to or operating as such enactments. Any such authority or clauses would be treated as nugatory and futile by all tribunals holding that the Constitution of the United States is, what on its face it is declared to be, the supreme law of the land. Therefore, the new Constitution of Louisiana stands before us, with respect to her past contracts, with no greater weight than would a legislative enactment containing similar provisions; and what the State
If the new Constitution had never been adopted, there could be no question as to the power of the State courts to require that the moneys collected be applied to the payment of the interest. It would not only have been the duty of the board of liquidation to thus apply them, but it would have been a felony to refuse to do so. Now, whatever enactment, constitutional or legislative, impairs the obligation of the contract with the bondholders, that is, abrogates or lessens the means of its enforcement, is void. Therefore, the new Constitution, as to that contract, is to be treated as though it never existed. As said by this court, without a dissenting voice, only two years ago, in Wolff v. New Orleans: "Legislation producing this latter result (impairment of the obligation of a contract by abrogating or lessening the means of its enforcement), not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the Constitution, and must be disregarded, treated as though never enacted, by all courts recognizing the Constitution as the paramount law of the land." 103 U.S. 358, 365.
And again, in the same case: "The prohibition of the Constitution against the passage of laws impairing the obligation of contracts applies to the contracts of the State, and to those of its agents acting under its authority, as well as to contracts between individuals. And that obligation is impaired, in the sense of the Constitution, when the means by which a contract at the time of its execution could be enforced, that is, by which the parties could be obliged to perform it, are rendered less efficacious by legislation operating directly upon those means." Id. 367.
No reason in law, therefore, any more than in morals, can be given why the mandates of the act of 1874 and the constitutional amendment of that year should not be carried out. There is nothing in the fact that the defendants are officers of
In Osborn v. Bank of the United States, decided in 1824, an injunction was sustained against the treasurer and auditor of Ohio to prevent the seizure of moneys belonging to the bank in payment of taxes levied under an unconstitutional law of the State. It was urged with much zeal that the State of Ohio, though not nominally a defendant, was the real party in interest, and that the suit was in fact against the State, which it was conceded could not be sued directly. But the court said, Chief Justice Marshall delivering the opinion: "If the State of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit." 9 Wheat. 738, 842.
These views, as was said in the opinion in United States v. Lee, 106 U.S. 196, have never been overruled; and the case itself is cited with approval in Davis v. Gray, decided in 1872, as establishing, among other propositions, that "Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record. In deciding who are parties to the suit,
In Davis v. Gray, the Governor and the Commissioner of the General Land-Office of Texas were "enjoined from issuing or causing or permitting to issue" patents of certain lands, the sale of which her Constitution had authorized, upon the supposition that the title of a corporation to them had been lost. In considering the right of a private party to maintain suit against those officers, inasmuch as a suit could not be brought directly against the State, the court reasserted the doctrine announced in Osborn v. Bank of the United States.
The objection suggested was also considered and disposed of in Board of Liquidation v. McComb, a case against these very officers, decided in 1875. There the board undertook to liquidate a debt contracted in reconstructing and keeping in repair levees on the Mississippi River, with consolidated bonds issued under the act of 1874, pursuant to the authority of a subsequent statute of the legislature. A citizen of Delaware holding some of the consolidated bonds contended that the levee debt was not one of the debts to fund which these bonds had been issued, and that the use of them for that purpose would defeat one of the benefits of the funding scheme. He therefore applied to the Circuit Court of the United States for an injunction to restrain the board from funding the levee debt with those bonds, and obtained it. The injunction was made perpetual by a final decree, which was affirmed here. "In our judgment, therefore," we said, speaking by Mr. Justice Bradley, "the court below was right in granting the injunction as to the consolidated bonds, if the defendants, occupying the official position they do, are amenable to such a process. On this branch of the subject, the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against State officers by mandamus or injunction are, first, that it is in effect proceeding against the State itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A State, without its
Nor is there any force in the objection that the funds which the complainants and petitioners seek to reach are in the treasury of the State. They are appropriated by the law of 1874, and by the constitutional amendment of that year, to the payment of the interest on the consolidated bonds. The statute declares that the revenue derived from the taxes levied to pay the interest and principal of the bonds is "set apart and appropriated to that purpose, and no other;" that "the said appropriation shall be a continuing annual appropriation" until the bonds are paid or redeemed, principal and interest; and that "it shall be deemed a felony for the fiscal agent, or any officer of the State or board of liquidation to divert the fund" from this channel. The constitutional amendment declares that no further legislation than that specified therein shall be requisite for the appropriation of the proceeds of the taxes levied.
Nothing more could be expressed to render the appropriation of the fund for the interest and principal of the bonds absolutely complete. The fund could not afterwards be diverted to any other purpose. The ministerial duty alone remained with the officer of the State having charge of the fund, wherever it might be, to apply it.
Nor is there any weight in the objection that the officers of the State are called upon to enforce the collection of the tax. They are simply called upon to obey the mandates of the law and Constitution of the State. Both levy the tax, and designate its amount and the officers to collect it. The statute declares that the tax shall be a "continuing annual tax" until the bonds are paid or redeemed. The constitutional amendment declares that "the tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the State to the holders of said bonds, as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the
Here are provisions for levying, collecting, and appropriating, sufficient for these purposes, or language is incapable of expressing them. Whatever doubts might be entertained as to the authority of the legislature to make a levy and an appropriation to take effect in subsequent years, to meet the interest then accruing, they are removed by the constitutional amendment. There is nothing in the reason of the thing why the levy of taxes and the appropriations for all purposes should be made annually. They may be made for years in advance, if the Constitution of the State so permits, in order to provide for a sinking fund or to meet an expenditure for a work which may take years for its completion, or to meet, as in this case, future interest on its indebtedness. In some of the States the sessions of the legislature are biennial. The interval between the sessions might be increased, and there would be quite as much objection, so far as power is concerned, to the levy of taxes, and to the appropriations for those periods as for one year.
The tax provided and the appropriation of its proceeds were made for many years by the amendment to the Constitution, which expressed at the time the will of the people of the State. Nothing is to be done by the court and nothing is asked of it but to require that this will be obeyed.
There is another reason suggested against the maintenance of the suits, not, as appears to me, very potential, but which affects the judgment of some able men, — that the obligations of States are purely honorary, and cannot, therefore, be the subject of judicial cognizance. What is meant by honorary, so far as I can understand it, is that the obligations may or may not be fulfilled as the States will; in other words, that they are matters of convenience and not of duty, to be performed if the caprice of the hour approve, to be disregarded if the caprice of a subsequent hour disapprove. Or, to use other terms of explanation, as there is no mode of compelling a State, by suit directly against her, to observe her obligations, they must be deemed honorary; that is, just so far as they may be dishonored without redress to those who trusted
Whatever merit this suggestion may possess, it can have no place for consideration here. When a State enters into the markets of the world as a borrower, she, for the time, lays aside her sovereignty and becomes responsible as a civil corporation, And although suits against her even then may not be allowed, her officers can be compelled to do what she then contracts that they shall do. And as to these consolidated bonds, Louisiana has declared in her organic law that they created a valid contract between her and each and every holder, which she "shall by no means and in no wise impair," and that no court "shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor," but that to secure them her judicial power shall be exercised when necessary. These engagements are not imperfect obligations, mere honorary promises, which she can keep or break without accountability.
If a State can successively repudiate her solemn obligations, can obtain the surrender of a large portion of the demands of her creditors upon pledges for the more prompt payment of the remainder, and then set aside as worthless the pledges given with no possibility of redress to the creditors, either by enforcement of the pledges, or by a return of the surrendered demands, what confidence can be reposed anywhere? Public faith will be the synonym of public dishonesty; and, as I stated on a former occasion: "If the government will not keep its faith, little better can be expected from the citizen. If contracts are not observed, no property will in the end be respected; and all history shows that rights of persons are unsafe when property is insecure. Protection to one goes with protection to the other, and there can be neither prosperity nor progress where this foundation of all just government is unsettled." Sinking Fund Cases, 99 U.S. 700, 767.
On the argument much weight was placed upon the decision of the Supreme Court of Louisiana in State, ex rel. Hart, v. Burke, 33 La. Ann. 498; and it is cited as authority to the point that no remedy by mandamus exists in the courts of the State to compel her officers to carry out her engagements; stated,
There can be no doubt that, but for the Debt Ordinance in the Constitution of 1879, a mandamus or other compulsory process could have been issued by the courts of Louisiana to compel officers of the State, and of the board of liquidation, to execute the provisions of the act of 1874 and of the constitutional amendment of that year. The Code of Procedure of the State declares that the object of the writ "is to prevent a denial of justice or the consequence of defective police, and it should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever," sect. 830; and that "it may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them." Sect. 834. These provisions are sufficiently comprehensive to embrace the present cases, and authorize compulsory process against the defendants to enforce the performance of the duties with which they are charged under the act and constitutional amendment of 1874.
But independently of them, the constitutional amendment of 1874 of itself invests the courts of the State with jurisdiction to issue such process, by the clause which declares that, to secure the levy, collection, and payment stipulated, "the judicial
In Marbury v. Madison, 1 Cranch, 137, the conditions under which the writ will be issued are stated as clearly and happily as anywhere in the reports; and though the case is familiar to all, some of the observations of the great Chief Justice, who there spoke for the court, may properly be repeated. The plaintiff there, as is well known, had been appointed a justice of the peace for the District of Columbia; his commission was signed by the President and sealed by the Secretary of State, but its delivery was refused by a new secretary succeeding to the one who had signed the commission. The court held that the plaintiff was entitled to his commission, and to withhold it was an act not warranted by law, but in violation of a vested right, and then proceeded to consider whether the laws of the country gave him a legal remedy. "The very essence of civil liberty," said Chief Justice Marshall, "certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." And again: "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case." He then shows that there was nothing in the character of the case or the nature of the transaction which exempted it from legal investigation or prevented the injured party from having redress; and, among other instances, he referred to the act of Congress of 1794, concerning invalids, as one where the performance of duties imposed upon the heads of departments might be enforced. "By the act concerning invalids, passed in June, 1794," he said, "the Secretary of War is ordered to place on the pension list all persons whose names are contained
If the act be one which involves discretion, the officer only conforms to the law in exercising that discretion. If it be one which calls for the consideration of evidence and the exercise of judgment, he must be left free to act upon his own conclusions. If, however, the act does not rest in his discretion; if it does not call for the exercise of judgment, but is a specific duty, imposed by law, and ministerial in its character, such as the delivery of a commission, the issue of a patent, the drawing of a warrant, or the payment of moneys appropriated (the subject to which the appropriation is made not calling for the exercise of judgment in its selection), and individuals have a direct pecuniary interest in the performance of that duty, — the officer is as much subject to the compulsory process of the judicial tribunals as a private citizen. If it were not so, our government would cease to be a government of laws, and the
It is not, then, the office of the defendants which can preclude an inquiry into the propriety of calling upon the courts to enforce the performance of duties imposed by law upon them. The propriety of issuing the writ must be determined by the nature of the act to be done; whether it is one which they, under the law, are required to do.
No interference is sought with the general financial affairs of the State. These she may manage as she chooses. What is sought is an injunction to prevent her officers from diverting to other purposes funds collected for the payment of her creditors, and a direction to them to proceed and carry out her command as to the collection hereafter of the specific tax levied by herself, and the disbursement of its proceeds. The fact that she subsequently made an unconstitutional attempt to rescind that command cannot affect its character or efficacy.
In Woodruff v. Trapnall, 10 How. 190, decided in 1850, this court enforced a contract of the State of Arkansas in a proceeding by mandamus against one of her officers, compelling him to receive certain bills in satisfaction of a judgment recovered by the State, in the face of a subsequent statute prohibiting their receipt.
In Hartman v. Greenhow, 102 U.S. 672, decided only two years since, this court, with but a single dissenting voice, enforced a contract of the State of Virginia in a proceeding by mandamus against one of her officers, compelling him to receive coupons of certain bonds for taxes, pursuant to the law under which the bonds were issued, although a subsequent law of the State had forbidden their receipt. And the Supreme Court of Appeals of Virginia has, in similar cases, after mature consideration, asserted a like authority over officers of the State, never apparently imagining that the sovereignty of the Commonwealth was at all assailed by judicial process compelling them to do their duty. The Commonwealth has required no reminder from a Federal tribunal to awaken her attention to the invasion of any of her rights of sovereignty.
A number of other cases in this court and in the Circuit Courts might be cited to the same purport; and if the law respecting
Nor can I perceive in what way the law, as thus pronounced, encroaches here upon any of the powers of the State. It is undoubtedly a matter of great importance, indeed of absolute necessity to wise government in this country, that there should be no interference with the rights of the States in the management of their local affairs, including in these the collection and disbursement of their revenues. But if a State contracts to do certain things, and in order that they may be performed subjects her officers to the control of the courts, and makes their refusal to carry out her pledges a felony, it cannot be justly contended that her reserved rights are at all invaded if her officers are judicially commanded to do what she says they shall do. No doctrine is here asserted in conflict with the exercise of any rightful authority of the State. All that is claimed is simply a right to compel her officers to obey her own enactments, such as were constitutionally passed, and thus became laws, and to disregard such as she had no power to pass. If the State is above the Constitution of the United States; if the protection of that instrument does not extend to her engagements with individuals; if her power is as absolute as that of the Parliament of England; if the theory of the Federal Constitution, that it binds States as well as individuals, is unsound; if it is not, as it declares itself to be, the supreme law of the land, — then my position falls; but otherwise there is no answer to it — at least none that I have been able to see.
MR. JUSTICE HARLAN.
Having a deep conviction that the opinion of the court is in conflict with the spirit and tenor of our former decisions, subversive of long-established doctrines,
That the bonds and coupons issued by Louisiana, in pursuance of the statute and constitutional amendment of 1874, are contracts within the meaning of that clause of the Federal Constitution which declares that no State shall pass any law impairing the obligation of contracts; that the provisions in its new Constitution known as the "Debt Ordinance" of 1879 were intended to impair, and, if enforced, do impair, the obligation of those contracts; and that such ordinance is therefore a nullity as against the bondholders who do not accept its terms, — are propositions so manifestly correct as not to require argument in their support. Indeed, I understand the court, substantially, to concede them to be sound. As the Constitution of the United States is the supreme law of the land, "anything in the Constitution or laws of any State to the contrary notwithstanding," I had supposed that all State action, whether by legislative enactment or constitutional provision, must be disregarded when in conflict with that law. Yet this court holds that it cannot enforce or restrain the agents of a State from destroying the obligation of her contract with a citizen because such relief will require them, in the discharge of their official duties, to disobey the orders of what is denominated the supreme political power of that State. The court, it seems to me, in effect, adjudges that the defendants cannot be coerced by the courts of the Union to disregard nullifying enactments of their State, although such coercion, if employed, would only be for the purpose of enforcing the rightful authority of the Constitution. It appears upon the very face of these proceedings, and is not to be disguised, that those officers refuse to perform purely ministerial duties solely because the will of the State is, with them, paramount, and to be obeyed although thereby they destroy rights guaranteed by the supreme law of the land.
To state the proposition in another form: Here are contract rights which, but for the nullifying provisions in the new Constitution of Louisiana, the courts (as I will presently show) would unquestionably protect by the process of injunction, and also, if need be, by mandamus compelling the officers
1. What are the terms of the admitted contract between Louisiana and the holders of the consolidated bonds?
By the statute of 1874 a fixed annual tax is levied for the purpose of paying the principal and interest of the bonds authorized to be issued; the revenue therefrom is thereby "set apart and appropriated to that purpose and no other;" it is made a felony for any officer to divert it from that purpose; the interest tax is declared to be a continuing annual tax until the bonds, principal and interest, are paid or redeemed; the appropriation is made a continuing annual one during the same period; and the levy and appropriation, it is declared, shall authorize and make it the duty of the auditor and treasurer, and the board of liquidation, respectively, to annually collect the tax, pay the interest, and redeem the bonds, until they are fully discharged.
Each provision of the act is declared to be a contract between the State and each holder of the bonds; it is made a misdemeanor for any judge, tax-collector, or other officer to obstruct the execution of any part of it, or to fail to perform his official duty; tax-collectors are inhibited from paying over moneys so collected to any other person than the State treasurer; and it is provided that no court or judge of the State shall have power to enjoin the payment of principal or interest of the bonds or the collection of the special tax therefor.
These provisions were embodied in the Constitution of Louisiana,
With these statutory and constitutional provisions in force, the State issued bonds to the amount of about $12,000,000, and taxes were assessed, collected, and paid over to the State treasurer solely for the purpose of meeting their interest. Of the amount collected to pay coupons maturing Jan. 1, 1880, about $300,000 are in the State treasury. The State officers refuse to apply the money for that purpose or to take any steps toward further collections as enjoined by the statute and Constitution of 1874.
2. What has the State done that impairs the obligation of her contracts?
By her Debt Ordinance the coupons falling due the 1st of January, 1880, are "remitted" without the consent of creditors, and the interest tax already collected is therein directed to be used exclusively for the payment of the expenses of the State government. Unless the holders of consolidated bonds are paid out of this money, raised for their benefit exclusively, and unless future collections are made as required by the contract, they will be wholly without remedy, and their bonds will cease to have any value. Plainly that ordinance is a breach of the plighted faith of the State. The financial world, as we have seen, was assured by legislative enactment and constitutional
The State has no more right by law to impair the obligation of its contracts than it has, by law, to impair the obligation of contracts between individuals. In State of New Jersey v. Wilson, the language of the court, speaking by Chief Justice Marshall, is: "In the case of Fletcher v. Peck it was decided in this court, on solemn argument and with much deliberation, that this provision of the Constitution [the contract clause] extends to contracts to which a State is a party, as well as to contracts between individuals." 7 Cranch, 164, 166. It is the settled doctrine of this court that contracts with States are as fully protected by the Constitution against impairment by State legislation as contracts between individuals. Green v. Biddle, 8 Wheat. 1; Providence Bank v. Billings, 4 Pet. 514; Woodruff v. Trapnall, 10 How. 190; Wolff v. New Orleans, 103 U.S. 358.
3. If the Debt Ordinance of Louisiana is in violation of the Constitution of the United States, and, therefore, a nullity as against the holders of consolidated bonds, — if the latter are entitled by the terms of their contract to be paid out of the moneys collected for their benefit and to have further collections made, — is there any mode, known to the law, by which their rights can be protected? My brethren of the majority answer this question in the negative when they adjudge that no relief whatever can be given in either of these suits. One is a suit in equity commenced in the Circuit Court of the
Some comment is made upon the extended nature of the relief asked by plaintiffs. It is sufficient to remark that the court is never bound to give relief to the full extent demanded; and all relief is not to be denied because more is asked than the court will grant under any circumstances, or in the particular case. And there is no ground, I submit, for the suggestion that granting relief would require the administration, by the court, of the general finances of the State. What should be done, if properly it may be, is, by necessary orders, to prevent the officers of the State from depriving creditors of moneys which by express contract have been set apart and appropriated exclusively to the payment of their claims. There is no obstacle to the payment out of that fund, except the prohibition in the void Debt Ordinance of 1879. It is distinctly admitted to be easily ascertainable from the accounts how much of the money in the treasury is applicable to this class of debts. Indeed, it appears from the opinion in Newman v. Burke, hereafter referred to, that the treasurer and fiscal agent of Louisiana held within their control, when these suits were commenced, all the moneys raised under the statute and Constitution of 1874 to meet the interest falling due Jan. 1, 1880. They have, in their hands, more than enough to pay the coupons of Jan. 1, 1880, held by the parties now before the court. Further, — a fact most significant in view of the suggestion that these moneys are mingled with other moneys in the State treasury, — the interest fund created to pay coupons maturing Jan. 1, 1880, were, by an act of the General Assembly of Louisiana, approved Jan. 4, 1882, directed to be invested in United States bonds. Acts La. 1881, p. 50. And it is not pretended
It is apparently urged, as an obstacle in the way of relief, that plaintiffs do not seek to have the proceeds of these taxes applied specially to the payment of their claims, but ask such orders as will enable all holders of consolidated bonds to participate in the distribution of the moneys raised under the statute and Constitution of 1874. Had the suit for a mandamus sought the application of the moneys solely to the payment of coupons held by the plaintiffs, it might, perhaps, have been urged as ground for its refusal, that each bondholder had an interest in the fund so created. State, ex rel. Boyer, v. State Treasurer, 32 La. Ann. 177. If the relief asked cannot be given for the benefit of all holders of consolidated bonds, there would seem to be no difficulty in restricting payments to such as are actually before the court in person or by representation. It is, however, proper to say that, notwithstanding the criticisms made by the court upon the nature and extent of the relief asked, I do not feel authorized to infer from its opinion that relief would be given to the parties before it, had they asked payment only of their coupons. The opinion seems to proceed upon the broad ground that, as Louisiana is not directly suable in its corporate capacity, the courts of the Union cannot reach its agents employed, under its orders, in the work of destroying the contract rights of the plaintiffs.
4. Are these suits forbidden by the Eleventh Amendment of the Federal Constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State? I understand the court, in effect, if not in terms, to hold that they cannot be maintained without violating that amendment.
The first authority cited in support of that view is Reg. v. Lords Commissioners of the Treasury, Law Rep. 7 Q.B. 387.
It seems to me that case furnishes no support for the suggestion that these are suits against the State, simply because they are brought against its officers. It does not conflict with the proposition that the State treasurer can be compelled to apply the proceeds of these taxes as stipulated in the statute and Constitution of 1874, which were his sole authority to receive them. Here there is a statutable obligation upon him to
This distinction is well illustrated in Grenville-Murray v. Earl of Clarendon, Law Rep. 9 Eq. 11. There the plaintiff sought a decree for the value of diplomatic services alleged to have been rendered by him. He claimed that he was entitled to be paid out of certain money voted by Parliament to the Foreign Office. Lord Romilly, M.R., said: "It [the money so voted] is not paid in trust for any particular person. The case that was cited was to this effect: that if Parliament votes a sum of £1,000 to John Smith, and the treasury devote in their books the payment of that sum to other purposes, then a mandamus will lie to the treasury in order to pay that £1,000 to John Smith. But there is nothing of the sort here. Parliament has merely voted certain sums to her Majesty, and of these sums £600,000 are to be applied to the Foreign Office. The distribution of that amount is left to the officers of the Foreign Office to apply in such a manner as is most subservient to her Majesty's service and to the due support of the Foreign Office, and there is nothing whatever to connect the plaintiff with a penny of this money in any aspect. It is impossible for me, therefore, in that state of things, to say that there is any trust for him."
I refer also to Rex v. Lords Commissioners of the Treasury,
There is another consideration which strengthens this position, that is, the supremacy of the Constitution of the United States over State constitutions and State laws. To the duty imposed by the statute and Constitution of 1874 upon its officers there is superadded the duty imposed by the fundamental law of the land not to regard as binding any State enactment which impairs the obligation of contracts.
If the case cited from the Queen's Bench were susceptible of the construction put upon it by this court, it should not have controlling influence. Here no such relations exist between the executive and judicial departments as exist in England between the Crown and the courts. This was shown in the elaborate opinion of Mr. Justice Miller, speaking for the court in United States v. Lee, 106 U.S. 196. That was ejectment to recover real estate, in the actual possession of officers who claimed it, not in any personal right, but for the United States, — property used and occupied as a cemetery for dead soldiers of the Union. It was contended that a suit against the officers, having for its object to disturb their possession, was a suit against the government. In support of that position numerous cases were cited from the English courts, which held that a suit could not be maintained against officers of the Crown. But we held that upon such a question
In that case the court reaffirms the doctrines of Osborn v. Bank of the United States, 9 Wheat. 738. The latter was a suit to recover moneys, which officers of the State of Ohio, in conformity with its statutes, had illegally taken from a bank of the United States. The suit being against the officers of the State, the objection was taken that it could not be sustained without the State itself being a party; that the State could not be sued; consequently, it was argued, the relief prayed — the restoration of the money — could not be granted. But to that objection the court, speaking by Chief Justice Marshall, — and this language is quoted approvingly
The decision in that case has not been heretofore questioned in this court. It seems to establish, upon grounds which cannot well be shaken, that a suit against State officers, to prevent a threatened wrong to the injury of the citizen, is not necessarily a suit against the State within the meaning of the Eleventh Amendment of the Constitution; for, said Chief Justice Marshall, "the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is, of necessity, limited to those suits in which a State is a party to the record." Here, the State is not a party to the record. Here, officers of Louisiana only are parties defendants; and the relief asked is that they be required to perform purely ministerial duties imposed upon them by the statute and Constitution of 1874, whose provisions, as respects the matters now in issue, are still in force and obligatory, because never affected, modified, or repealed, otherwise than by a debt ordinance, subsequently adopted, conceded to be in conflict with the Constitution, and, therefore, absolutely void.
There are other decisions of this court still more directly in point. The leading one is Davis v. Gray, 16 Wall. 203. In that case it appears that the State of Texas made a grant of
Touching the question of jurisdiction, the court, speaking by Mr. Justice Swayne, stated these principles as having been announced in Osborn v. Bank of the United States. 1. A Circuit Court of the United States, in a proper case in equity, may enjoin a State officer from executing a State law in conflict with the Constitution, or a statute of the United States, when such execution will violate the rights of the complainant. 2. Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record. 3. In deciding who are parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her laws prompt his action, and the State stands behind him as the real party in interest. p. 220. It was in conformity with those doctrines that the relief asked was given. See also Vattier v. Hinde, 7 Pet. 252; Louisville Railroad Co. v. Letson, 2 How. 497; 2 Story's Const., sect. 1685; 1 Kent, Com. 351.
In part upon the authority of Davis v. Gray and Osborn v. Bank of the United States, this court, in Board of Liquidation v. McComb, 92 U.S. 531, 541, maintained the right of a holder
It seems to me impossible, in view of our decision in that case, apart from previous decisions upon which it was founded, to hold that these suits are forbidden by the Eleventh Amendment of the Federal Constitution. We have adjudged that there is power in the courts of the Union, in a suit by an individual against State officers, to prevent them — in execution of an unconstitutional statute — from using these consolidated bonds for purposes inconsistent with the contract under which they were issued. In these cases, it is determined that those courts are powerless, in suits against such officers, to prevent the misapplication of moneys collected for the purpose of meeting the interest on those bonds; and this, in part, upon the ground that the relief asked will require the officers, who have charge of those moneys, to disregard the confessedly void orders of the supreme political power of the State.
It may be asked, When before has this court found the unconstitutional mandate of a State to be an obstacle in the way of compelling her officers to respect rights of contract, the obligation of which is protected against impairment by any law of the State? Of what value is the contract clause of the Federal Constitution if it cannot be enforced against hostile provisions of a State Constitution? This court said, in Dodge v. Woolsey, 18 How. 331, 360, that "a change of constitution cannot release a State from contracts made under a constitution which permits them to be made;" in Jefferson Branch Bank v. Skelly, 1 Black, 436, 448, that a contract between Ohio and a bank in that State "was entitled to the protection of the Constitution of the United States against any law of Ohio impairing its obligation;" in Railroad Company v. McClure, 10 Wall. 511, 515, that "the Constitution of a State is undoubtedly a law," within the meaning of the contract clause of the Constitution, and that "a State can no more do what is thus forbidden by one than by the other, — there is the same impediment in the way of both;" in White v. Hart, 13 id. 646, 652, that "it is well settled by the adjudications of this court that a State can no more impair the obligation of a contract by adopting a constitution than by passing a law, — in the eye of the constitutional
Nor, if the relief here asked be granted, can I agree that the officers of the State cannot be protected against her subsequent action. If proceeded against because of their compliance with the judgments of the courts of the Union, the suit can ultimately be brought here for review, where no one will be permitted to suffer because of his obedience to the supreme law of the land.
Upon the general question of the power of the Circuit Court to grant a mandamus against State officers, there are some propositions announced by the court which should be examined. The fact is mentioned that the coupons held by plaintiffs have not been reduced to judgment, and it is said that the Circuit Court, in exercising its original jurisdiction, can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. As the State cannot be sued as a party defendant, to say that a judgment for the amount of the coupons is a condition precedent
Upon this question, reference is made by the court to Bath County v. Amy, 13 Wall. 244, and Davenport v. County of Dodge, 105 U.S. 237. In the first of those cases it was decided that the Circuit Court had no power, under the act of 1789, to issue a writ of mandamus except where necessary or ancillary to the exercise of its jurisdiction. And that doctrine was reaffirmed in Davenport v. County of Dodge, upon the authority of Bath County v. Amy, but without any question being raised in the former case as to the power of the Circuit Court to issue writs of mandamus since the passage of the act of March 3, 1875, c. 137. It will be found that the decision in Bath County v. Amy was based upon McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 598; and Kendall v. United States, 12 Pet. 524.
In McIntire v. Wood, the Circuit Court was held to have authority to issue such writs only when necessary to the exercise of its jurisdiction. But it was said: "Had the 11th section of the Judiciary Act [the one declaring what suits shall be within the original cognizance of Circuit Courts] covered the whole ground of the Constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under the laws of the United States, and the 14th section of the same act would sanction the issuing of the writ for such a purpose. But although the judicial power of the
In Kendall v. United States, the previous cases were held to decide that the writ was appropriate to compel the performance of a ministerial act, necessary to the completion of an individual right arising under the laws of the United States. In all the cases prior to Bath County v. Amy, the want of power in the Circuit Court to issue the writ, in the first instance, and in advance of a judgment, establishing the rights of the parties, was put distinctly upon the ground that the whole judicial power of the United States had not been delegated to the Circuit Courts. In Kendall's case, however, the power of the Circuit Court in the District of Columbia, to compel the Postmaster-General by mandamus to perform a duty enjoined by an act of Congress, was sustained because, differently from the Circuit Courts in the several States, its jurisdiction then extended to all cases in law or equity arising under the laws of the United States. Now, it is apparent that the act of March 3, 1875, c. 137, supplies what in McIntire v. Wood and McClung v. Silliman was said to be wanting. It substantially "covers the whole ground of the Constitution." It invests the Circuit Courts with original jurisdiction, and with jurisdiction by removal from the State courts, of all suits at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or in which the United States are plaintiffs or petitioners; or in which there is a controversy between citizens of different States; or a controversy between citizens of a State and foreign States, citizens, or subjects; or a controversy between citizens of the same State claiming lands under grants of different States.
It seems to me entirely clear that since the act of March 3, 1875, c. 137, enlarged the jurisdiction of the Circuit Courts, they have power, in the first instance, and in advance of a judgment to issue a mandamus, to compel the performance of purely ministerial acts, which require no exercise of discretion,
It must also be observed that the mandamus suit was commenced in an inferior court of the State, and thence removed into the Circuit Court of the United States. If the power of the latter depended upon the question whether the State court could, by mandamus, compel a State officer to perform plain official duties imposed by law, the writ should be awarded. This court, I submit with great confidence, is in error if it means to say that State, ex rel. Hart, v. Burke, 33 La. Ann. 498, decides, or that the Supreme Court of Louisiana has ever decided, that the courts of that State cannot, under any circumstances, compel her officers, by mandamus, to perform plain official duties requiring no discretion. The State Code of Procedure expressly declares that the writ "may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them." Sect. 834. It is, I think, clear that but for the Debt Ordinance the court would have sustained the writ in that case, and compelled the officers to obey the statute and Constitution of 1874. What the court adjudged was that while an
That I do not misinterpret that case is clear from Newman v. Burke, determined in April, 1882. Newman, holding warrants on the general fund of the State for 1880 and 1881, claimed that by virtue of the Debt Ordinance he was entitled to be paid out of moneys in the hands of State officers, collected under the statute and Constitution of 1874, and by that ordinance directed to be transferred to the general fund. He obtained by the judgment of the Supreme Court of the State an order for a mandamus against the State treasurer and fiscal agent, directing them to conform their books to the requirements of the Debt Ordinance, subject, however, to the right and duty of those officers "to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S.J. Hart and John Elliott et al., ... in case judgment should be rendered in their favor in the judicial proceedings instituted by them, and now pending in the Supreme Court of the United States." Thus, it seems that those officers, with the approval of the Supreme Court of Louisiana, only await the final determination of these suits to ascertain whether they will be permitted to execute a State ordinance in conflict with the Federal Constitution.
The State court, affirming the doctrines of State, ex rel. Hart, v. Burke, said: "Inasmuch as no court can ever acquire jurisdiction over a State, or to enforce a contract of a State against her will, it follows that no court can ever have power to decree the invalidity of any provision of the State Constitution on the ground that it impairs the obligation of such a contract. But unless the court may decree the nullity of such a provision, on such a ground, it follows that it cannot compel the officers of the State to do anything in violation thereof, because the Constitution of the State is their exclusive mandate and absolutely binding on them."
This language needs no interpretation. While the Federal Constitution declares that it shall be the supreme law of the
As further evidence that the State court recognizes the right to a mandamus compelling State officers to discharge ministerial duties, imposed by provisions of the Debt Ordinance, I refer to State, ex rel. Ecuyer, v. Burke, 33 La. Ann. 969. Ecuyer was the owner of certain consolidated bonds, issued under the act of 1874. He concluded to accept the provisions of the Debt Ordinance of 1879, and, in conformity therewith, applied to the State treasurer to have his bonds stamped, so as to show that he acceded to the reduction of interest made by that ordinance. That officer declining to comply with this request, an application was made to an inferior State court to compel him to stamp them. His refusal to comply with the relator's demands was based in part upon a statute passed in 1880 (after the debt
Thus it is shown that the same court which determined State, ex rel. Hart, v. Burke has decided that the courts of Louisiana have power, by mandamus, to compel an officer of the State to discharge ministerial duties, requiring in their performance no discretion upon his part; especially when necessary to enforce a provision in the State Constitution in conflict with the Constitution of the United States.
It would seem, then, that holders of the consolidated bonds of Louisiana are in this anomalous condition: While her courts, because of the Debt Ordinance in the new Constitution, will not, by mandamus, compel her officers to perform the purely ministerial duties imposed by the statute and Constitution of 1874, but will, by using that writ, require those officers to execute the provisions of that ordinance, although it is confessedly in conflict with the Federal Constitution, the courts of the
My own conclusions are:—
That the officers of Louisiana cannot rightfully execute provisions of its Constitution which conflict with the supreme law of the land, and the courts of the Union should not permit them to do so;
That but for the adoption of the unconstitutional Debt Ordinance of 1879, and whether the suits were in a State court or in the Circuit Court of the United States, these State officers would have been restrained by injunction from diverting the funds collected to meet the interest on the consolidated bonds, and would have been compelled, by mandamus, to perform the purely ministerial duties enjoined by the statute and Constitution of 1874;
That if by existing laws the Circuit Court of the United States has no power to issue such writs, still, upon the removal of the mandamus suit from the State court, the former had power to do what the State court could legally have done had there been no removal, viz., make peremptory the alternative mandamus granted at the beginning of the suit by the inferior State court;
That the Debt Ordinance, being void because in conflict with the Constitution of the United States, furnishes no reason whatever — least of all in the courts of the Union — why the relief asked should not be granted by any court of proper jurisdiction as to parties;
That to refuse relief because of the command of a State to its officers to do that which is forbidden, and refrain from doing that which is enjoined, by the supreme law of the land; or to
I am, therefore, unable to concur in the opinion and judgment of the court.
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