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State of Louisiana Elliott v. Jumel/Dissent Field

FIELD, J., dissenting.

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 present suits. The state of Louisiana entered into certain engagements with her creditors; she embodied them in the most solemn form in a statute and in her organic law; she provided for the levying of a tax to pay those creditors; she prescribed certain duties for designated officers to perform in its collection and disbursement; she made it a felony for those officers to divert the fund thus raised to other purposes; she declared that no further legislation should be necessary for the collection of the tax or the appropriation of the proceeds, and that for the collection and payment of the tax the judicial power of the state should be exercised when necessary. The plaintiffs in these suits seek the enforcement of these engagements, and they are resisted merely because the engagements are repudiated by the state, and this court holds that it has no power to stay the repudiation.

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 $18,000,000. 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 60 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 state and to limit state taxes; to annul certain grants of      state aid; to prohibit the modification, novation, or      extension of any contract heretofore made for state aid; to      provide for the receipt of certain warrants for certain      taxes; and to repeal all conflicting laws.'

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 40 years, with interest at 7 per cent., and to exchange them for valid outstanding bonds and auditor's warrants at the rate of 60 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 to 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 $2,000, at the discretion of the court.' * Another section enacted that each provision of the act should be, and it was declared to be, 'a contract between the state of Louisiana and each and every holder of the bonds' issued under the act.

But, as though this act was not of itself a sufficient assurance of the unalterable purpose of the state to fulfill 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 obligations 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 created 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.'

Under this act and the constitutional amendment, obligations of the state, amounting to over $12,000,000, were surrendered, and bonds taken for 60 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 being made 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 of 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 2 per cent. per annum for five years, to 3 per cent. for fifteen years afterwards, and to 4 per cent. thereafter, with a proviso that the holders of the bonds might take new bonds for 75 per cent. on the dollar, drawing 4 per cent. interest.

The new constitution also directed that the coupon of the consolidated bonds falling due January 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 January 1, 1880, were made without the consent of the bondholders, or any consultation with them. Of course the new constitution, in these provisions, is a repudiation of the engagements of the act of 1874 and of the constitutional amendment of that year, and is a direct violation of the inhibition of the federal constitution against the impairment of the obligation of contracts.

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 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 constracts, with no greater weight than would a legislative enactment containing similar provisions; and what the state authorizes to be done by her judicial tribunals against her officers, in the collection of the tax and the application of the moneys raised for the payment of the interest on the bonds, can be done by the judicial tribunals of the federal government when a case is transferred to them from a state court.

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 Wolf 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. 365.

'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 the state. The books are full of cases where executive and administrative officers of a state have been required by the judiciary to do certain acts or been enjoined from doing them. And it has not been deemed an answer to the proceeding that the state was interested in the controversy.

In Osborn v. Bank of U.S., 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 enjoined in the suit.' 9 Wheat. 738, 842.

These views, as was said in the opinion in the Arlington Case, lately before us, [1 SUP. CT. REP. 240,] have never been overruled; and the case 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, the court will not look beyond the record. Making a state     officer a party does not make the state a party, although her      law may have prompted his action, and the state may stand      behind him as the real party in interest.' 16 Wall. 220.

In Davis v. Gray the governor of Texas was enjoined from executing 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 the executive officer of the state, inasmuch as a suit could not be brought directly against the state, the court reaserted the doctrine announced in Osborn v. Bank of U.S.

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. On final decree the injunction was made perpetual, and this court affirmed the decree.

'In our judgment, therefore,' said this court, 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 process. On this branch of the subject, the     numerous but 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 consent, cannot be sued by an individual, and a court cannot     substitute its own discretion for that of executive officers,      in matters belonging to the proper jurisdiction of the      latter. But it has been well settled that when a plain     official duty, requiring no exercise of discretion, is to be      performed, and performance is refused, any person who will      sustain personal injury by such refusal may have a mandamus      to compel its performance; and when such duty is threatened      to be violated by some positive official act, any person who      will sustain personal injury thereby, for which adequate      compensation cannot be had at law, may have an injunction to      prevent it. In such cases, the writs of mandamus and     injunction are somewhat correlative to each other. In either     case, if the officer plead the authority of an      uncconstitutional law for the non-performance or violation of      his duty, it will not prevent the issuing of the writ. An     unconstitutional law will be treated by the courts as null      and void.' 92 U.S. 541.

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 of ficer 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.

There would seem to be an impression that to constitute a valid appropriation there must be some segregation of the amount appropriated from the general mass of money in the treasury, by which it is placed in packages, bags, or boxes, separate from the rest and set one side. But nothing of the kind is done, nor is it required to take the amount appropriated from the control of the fiscal officers of the state for other purposes. The appropriation is the legalization of the use of a designated amount in the treasury for a specific object, and an inhibition of its use in any other way. That is all. Henceforth, to meet the appropriation, the fiscal officers must retain the designated amount in the treasury, but not necessarily separated in packages, bags, or boxes from other funds. Their duty is purely ministerial-to hold it and pay it when called for. Were this not so there could be no appropriations of moneys before their collection, which it is the constant practice of legislative bodies to make, in view of anticipated revenue. When the moneys are collected and passed into the treasury, the appropriation is complete. They are, in the eye of the law, dedicated to a specific purpose, and the party in whose behalf the appropriation is made can compel its payment by mandamus, as in the case of appropriations for the salaries of judges, heads of departments, and others. That writ is the common and appropriate remedy to enforce such payment.

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 'continual 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 SAID ASSESSMENT AND COLLECTION, AND FOR SUCH PAYMENT FROM THe treasury.' 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 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 to her good faith, they are to be deemed honorary obligations.

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 successfully 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. 767.

On he argument much weight was placed upon the decision of the supreme court of Louisiana in State v. Burke and Hart v. Burke, and they are 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, however, in the opinion as deciding that there is no remedy by mandamus or injunction against the state in its political capacity,-a proposition which no one controverts. The cases were similar in their character and objects to those now under consideration; and it was there held that the courts of Louisiana have no jurisdiction to entertain any judicial proceeding, the object of which is to enforce the performance of a contract or obligation of the state against her will; that they have no authority to declare that a provision of her constitution does not express her will; and that they cannot annul a provision of that constitution on the ground that it impairs the obligation of a contract with the state, because such a contract can never become the subject of judicial enforcement against her will. In these conclusions the court gave no force to the constitutional inhibition as against the state. It would seem as though it was of opinion that, in all matters of contract, the inhibition applies only to legislative action. It says:

'We have been referred to authorities to the effect that     where an officer pleads the authority of an unconstitutional      law as a justification for the nonperformance or violation of      his duty, this will not prevent the issue of the writ. 9     Wheat. 859; 16 Wall. 220. This may be so when the authority     invoked is a statute under the state constitution; but it is      different when the authority is an article in the      constitution itself.'

And the court proceeds to lay down the doctrine that clauses of the state constitution, though violative of the constitution of the United States, express the will of the state, and, as such, must be respected by her courts. In thus holding, the court would seem to have lost sight of two provisions of the federal constitution,-one, which declares that 'the constitution, and the laws of the United States which shall be made in pursuance thereof, * *  * shall be the supreme law of the land;' and the other, which declares that 'the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.' These provisions, which govern in Louisiana as well as in other states, being overlooked, and the inhibition against the impairment of the obligation of contracts being limited to legislative action only on the part of the state, so far as concerns her own contracts, it is not surprising that the court held that the ordinance of repudiation and shame embodied in the new constitution was to be obeyed; that its conflict with the federal constitution was to be disregarded; and that what the state was prohibited from doing should be deemed the legal expression of her will, and enforced as such. The decision rests upon the theory that a proceeding against the officers of the state to compel them to do their duty is a suit against the state; and that her consent to suit against them has been withdrawn by clauses of the new constitution. But if those clauses never lawfully became a part of the new constitution-because the state under the federal constitution was incapable of enacting them-then her consent remains, and the present suits are simply attempts to compel her officers to do her lawful bidding. The state cannot speak through an enactment which contravenes the federal constitution.

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,' (section 830;) and that 'it may be directed to public officers to compel them to fulfill any of the duties attached to their office, or which may be legally required of them,' (section 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 compulsory process, by the clause which declares that to secure the levy, collection, and payment stipulated, 'the judicial power shall be exercised when necessary;' and that means such power as properly belongs to judicial tribunals, to enforce the performance by public officers of duties imposed upon them by law.

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 The relator 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 the state, but its delivery to the relator was refused by a new secretary succeeding to the one who had signed the commission. The court held that the relator 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.'

'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 in a report previously made by him to congress. If he should     refuse to do so, would the wounded veteran be without remedy? Is it to be contended that when the law in precise terms     directs the performance of an act in which an individual is      interested, the law is incapable of securing obedience to its      mandate? Is it on account of the character of the person     against whom the complaint is made? Is it to be contended     that the heads of departments are not amenable to the laws of      their country? Whatever the practice on particular occasions     may be, the theory of this principle will certainly never be      maintained. No act of the legislature confers so     extraordinary a privilege, nor can it derive countenance from      the doctrines of the common law.'

'If one of the heads of departments commits any illegal act,     under color of his office, by which an individual sustains an      injury, it cannot be pretended that his office alone exempts      him from being sued in the ordinary mode of proceeding, and      being compelled to obey the judgment of the law. How, then,     can his office exempt him from this particular mode of      deciding on the legality of his conduct, if the case be such      a case as would, were any other individual the party      complained of, authorize the process? It is not by the office     of the person to whom the writ is directed, but the nature of      the thing to be done, that the propriety or impropriety of      issuing a mandamus is to be determined.'

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 the law, 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 obloquy to which MARSHALL refers would be cast on the jurisprudence of the country.

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 contracts with states, and rights of property acquired from states, is not to be subject to continual change, that law should remain undisturbed, having been recognized as sound for more than a third of a century. The doctrine of stare decisis is deemed of great importance on questions affecting private rights. Much more ought it to be respected and resolutely adhered to in determinations touching the limits of the powers of the federal and state governments, and the authority of each over the contracts of states with individuals. 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.


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State of Louisiana Elliott v. Jumel/Dissent Harlan

HARLAN, J., dissenting.

Having a deep conviction that the decision of the court is in conflict with the spirit and tenor of its former decisions, subversive of long-established doctrines, and dangerous to the national supremacy as defined and limited by the constitution, I deem it my duty to dissent from it.

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 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 provision or constitutional enactment, must be disregarded when in conflict with that law. Yet this court holds that it cannot enforce nor restrain the agents of a state from destroying the obligations of her contract with citizens, upon the ground, mainly, that 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 unllifying 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 guarantied by the supreme law of the land.

To state the proposition in another from: 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 by mandamus against the officers of the state compelling them to discharge plain official duties, requiring in their performance no exercise of discretion. Now, however, it is determined-if I do not misapprehend the decision that the judicial arm of the nation is hopelessly paralyzed in the presence of an ordinance destructive of those rights, and passed in admitted violation of the constitution of the United States. A state-which 'cannot be viewed as a single, unconnected, sovereign power,' but is a member of the Union under a constitution, the supremacy of which all must acknowledge-assumes to release its officers from the duty of obeying important provisions of that constitution; and this court, it would seem, holds that it has no power, as against such hostile action of the state, and in cases like these, to require those officers to respect private rights guarantied by such provisions.

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 continual 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 bonds; it is made a misdemeanor for any judge, tax-collector, or other officer to abstruct 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 the principal or interest of the bonds or the collection of the special tax therefor.

These provisions were embodied in the constitution of Louisiana, by an amendment adopted in 1874, and, with a view of facilitating the sale of the bonds, provided for in the act of that year, it declares that such issue creates 'a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in nowise impair; that 'no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the taxes therefor;' that to secure such levy, collection, and payment, the judicial power shall be exercised when necessary;' that the tax required for the payment of the principal and interest of such bonds 'shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds 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, lastly, 'that no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.'

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 January 1, 1880, about $300,000 are in the state treasury. The state officers refuse to apply the mony for that purpose, or to take any steps towards 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 first 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 provision and constitutional enactment that what the state officers now propose to do should never be done; that those who took these bonds might rely upon a fixed annual levy to meet the principal and interest; that all money thereby raised should be applied exclusively to that purpose; and that not only the officers of the state should assess, collect, and pay as the contract stipulates, but that the power of the judiciary should be exercised, whenever necessary, to enforce its obligation. These laws, in their substantial provisions, are as binding on the state, and are as much a part of the contract, as if those provisions had been set forth in its stipulations. McCracken v. Hayward, 2 How. 613; Bronson v. Kinzie, 1 How. 311; Walker v. Whitehead, 16 wall. 317; Planters' Bank v. Sharp, 6 How. 327; Edwards v. Kearney, 96 U.S. 607; Louisiana v. New Orleans, 102 U.S. 206.

It cannot be said that the state has any more right by law it impair the obligation of its contracts than it has, by law, to impair the obligation of contracts between individuals. It has long been the settled doctrine of this court that contracts with states are as fully protected by the constitution against impairment by state law as contracts between individuals. Providence Bank v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; 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 United States by holders of consolidated bonds to prevent, by injunction, officers of the state from using the proceeds of taxes already raised under the statute and constitution of 1874, for any purpose other than that for which they were collected and paid to the state treasurer. In the other suit, the plaintiffs, holders of consolidated bonds, and citizens of New York, ask a mandamus against the state officers compelling the application of the moneys so collected to the payment of their coupons, and also the collection of taxes to meet future interest as it becomes due.

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 admitted that it can be easily ascertained 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 January 1, 1880. They have in their hands more than enough to pay the coupons of January 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 January 1, 1880, were, by an act of the general assembly of Louisiana, approved January 4, 1882, directed to be invested in United States bonds. Acts La. 1881, p. 50. And it is not pretended that payment from that fund will produce the slightest confusion in the treasurer's accounts, or involve the use of moneys raised for other and distinct purposes. If any confusion ensues from such an application of these moneys, it would be only of that kind which arises when the law prevents a repudiating debtor from misappropriating funds, in his hands, that have been dedicated to a specific purpose.

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 application for mandamus sought the application of the moneys solely to pay the 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. Boyer v. State Treas. 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 plaintiffs.

4. The 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 The Queen v. Lords Com'rs of the Treasury, L. R. 7 Q. B. 387. It appears that by an act of parliament a round sum was appropriated to the crown to be used in paying costs incurred in prosecutions at assizes and quarter sessions in England, formerly paid out of county rates. Bills of costs having been passed by local officers, certain items were disallowed and others reduced by the lords of the treasury. Subsequently a rule went against the latter to show cause why a writ of mandamus should not issue compelling them to pay these bills out of the funds appropriated to the crown for such purposes. The judges, although of opinion that the defendants should be governed by the taxation of the local officers, declined to grant the writ. The question, said COCKBURN, C. J., was 'whether the lords commissioners of the treasury, when this money got into their hands, are bound to apply it as servants of the crown, or as the servants of the parliament who voted the money.' Said BLACKBURN, J.: 'The question remains whether there is any statutable obligation cast upon the lords of the treasury to do what we asked to compel them to do by mandamus, namely, to issue a minute to pay that money; because, it seems to me clear that we have a right to grant a mandamus if there is such a statutory obligation, particularly when the application is made on behalf of persons who have a direct interest in the matter,' etc. Similar declarations were made by the other judges. They all concurred in denying the writ upon the ground that the money was voted, not to named officers to be by them applied to a designated purpose, but as 'a supply to the crown;' that the officers who distributed it for the purposes named acted as servants of the crown, not as servants of parliament; that a suit against those officers was therefore one against the sovereign, whom, said Chief Justice COCKBURN, the court of queen's bench had no power, even in appearance, to command.

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 pay the coupons as they matured. And to that is added the obligation imposed by that constitution, which, in terms, declares that the proceeds of taxes collected under the act of that year '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,' without further legislative authority. These obligations remain upon the officer, unless it be that the debt ordinance, although unconstitutional and void, has discharged them. Had parliament, instead of the act involved in the case cited, passed one directly imposing upon the defendants the duty of paying out of moneys appropriated for that purpose a certain class of claims, it is manifest that the court of queen's bench would have compelled them, by mandamus or other process, to perform that duty. In the case supposed there would have been a statutable obligation which the court would not have permitted the defendants to evade on the pretext that they were officers under the crown.

This distinction is well illustrated in Grenville-Murray v. Farl of Clarendon, L. R. 9 Eq. 20. There the plaintiff sought a decree for the value of certain services alleged to have been rendered by him in the diplomatic service. 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.' 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 supreme 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 a different construction, 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 the Arlington Case. 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 the dead soldiers of the Union. It was contended that a suit against officers of the United States, 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 but little weight should be given to those adjudications; that there is a vast difference in the essential character of the two governments in reference to the source and depositaries of power; that while in England the crown, the fountain of honor, cannot be disturbed in its possession of property by process directed against its officers or agents, 'under our system the people, who are their subjects, are sovereign;' that 'their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch;' that 'the citizen here knows no person, however near to those in power, or however powerful in himself, to whom he need yield the rights which the law secures to him when it is well administered;' that 'when he, in one of the courts of competent jurisdiction, has established his right of property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.' Said the court further in that case:

'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with     impunity. All the officers of the government, from the     highest to the lowest, are creatures of the law and are bound      to obey it. It is the only supreme power in our system of     government, and every man who, by accepting office,      participates in its functions is only the more strongly bound      to submit to that supremacy, and to observe the limitations      which it imposes upon the exercise of the authority which it      gives.'

In that case the court reaffirms the doctrines of Osborn v. Bank of U.S. 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 in the Arlington Case, [1 SUP. CT. REP. 240,]-said:

'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 by      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 plaintiff, 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 subversice of the      bestestablished 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.'

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 the chief justice, 'the eleventh amendment, which stitution; for, said the chief justice, '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, only officers of Louisiana 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. 204. In that case it appears that the state of Texas made a grant of lands to a railroad company, upon the basis of which bonds were issued known as landgrant mortgage bonds. They were sold in large numbers, both in this country and Europe. Subsequently the state, by provisions of its statutes and constitution, attempted to repudiate and nullify its contract; and, in pursuance thereof, its officers proposed to issue patents to others for a part of the lands embraced in this grant. Thereupon a suit in equity was instituted in the circuit court of the United States against the governor and land-office commissioner of Texas, to prevent them from issuing patents for the lands or any part of them. The state was, of course, not made a party on the record. The bill was demurred to upon the ground that she could not be sued, and that the suit, being against her officers, was one, within the meaning of the constitution, against the state. The demurrer was overruled, and the relief asked was given.

Touching the question of jurisdiction, the court, speaking by Mr. Justice SWAYNE, stated these principles as having been announced in Osborn v. Bank of U.S.:

(1) That 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 can 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) That in deciding who are parties to the suit     the court will not look beyond the record. Making a state     officer a party, said the court, 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.

It was in conformity with those doctrines that the relief asked in Davis v. Gray was given. See, also, Vattier v. Hinde, 7 Pet. 263-4; Louisville R. Co. v. Letson, 2 How. 551; 2 Story, Const. § 1685; 1 Kent, Comm. 351.

In part upon the authority of Davis v. Gray and Osborn v. Bank of U.S., this court, in Board of Liquidation v. McComb, 92 U.S. 538, maintained the right of a holder of consolidated bonds to a decree against the officers of the state of Louisiana, who are here defendants, constituting the board of liquidation, preventing the use of such bonds for the payment of a debt due from the state to a levee company. The proposed action of the board was based upon a statute passed March 2, 1875. So that the suit had for its object to prevent state officers, charged with the execution of the latter act, from carrying out its provisions. It never occurred to this court that the suit was, for that reason, one against the state within the meaning of the constitution. Upon the general question whether the defendants, being officers of the state, were amenable to process from a federal court, Mr. Justice BRADLEY, speaking for this court, observed:

'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 consent, cannot be sued by an     individual; and a court cannot substitute its own discretion      for that of executive officers in matters belonging to the      proper jurisdiction of the latter. But it has been well     settled that when a plain official duty, requiring no      exercise of discretion, is to be performed, and performance      is refused, any person who will sustain personal injury by      such refusal may have a mandamus to compel its performance;      and when such duty is threatened to be violated by some      positive official act, any person who will sustain personal      injury thereby, for which adequate compensation cannot be had      at law, may have an injunction to prevent it. In such case,     the writs of mandamus and injunction are somewhat correlative      to each other. In either case, if the officer plead the     authority of an unconstitutional law for the non-performance      or violation of his duty, it will not prevent the issuing of      the writ. An unconstitutional law will be treated by the     courts as null and void. Osborn v. Bank of U.S. 9 Wheat. 859; Davis v. Gray, 16 Wall. 226.'

Upon these grounds the decree of the circuit court was affirmed, so far as it prohibited the debt due the levee company from being funded in consolidated bonds. Such use of them was deemed an impairment of the contract rights of those who were entitled to receive them.

It seems to me impossible, in view of our decision in McComb's 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. In that case 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 obligations of which are 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. 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, 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 the state of Ohio impairing its obligation;' in Railroad Co. v. McClure, 10 Wall. 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 Wall. 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 inhibition they are substantially the same thing;' and in Gunn v. Barry, 15 Wall. 625, that the constitution of the United States 'is above and beyond the power of congress and the states, and is alike obligatory upon both; a state can no more impair an existing contract by a constitutional provision than by a legislative act; both are within the prohibition of the national constitution.'

Why should these established doctrines of the court be overruled, as, for all practical purposes, they are, by the judgment this day rendered? The constitution declares that it shall be the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.' Its mandate, in that respect, is addressed alike to the judges of the federal and state courts, for it declares that 'the judges in every state shall be bound thereby.' And, as is said in Dodge v. Woolsey, 'to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that its binding force upon the states and the members of congress should be unmistakable, it is declared that 'the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by an oath or affirmation to support this constitution.'

Nor can I agree that the officers of the state-if the relief here asked be granted-cannot be protected against any subsequent action of the state. 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.

Upon the general question of the power of a 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 a 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 to a mandamus is only another form of saying that there is no remedy whatever to prevent the misapplication of the moneys raised under the contract and by virtue of the statute and constitution of 1874. The demands of the plaintiffs are not disputed, except upon the ground that the debt ordinance has assumed, without the consent of the state's creditors, to remit the interest falling due January 1, 1880, and to divert the funds raised to meet it. The genuineness of the bonds and coupons is not questioned. The case, therefore, comes within the rule, explicitly laid down in McComb's and other cases, that mandamus will lie to compel the performance by a public officer of a plain ministerial duty, requiring no exercise of discretion. Such a remedy is absolutely essential for the protection of the rights here claimed.

Upon this question, reference is made by the court to Bath Co. v. Amy, 13 Wall. 247, and Davenport v. Dodge Co. 105 U.S. 242. In the first of those cases it was decided that a 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. Dodge Co., upon the authority of Bath Co. v. Amy, but without any question being raised in the former case as to the power of a circuit court to issue writs of mandamus since the act of March 3, 1875. It will be found that the decision in Bath Co. v. Amy was based upon McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 601; and Kendall v. U.S. 12 Pet. 584.

In McIntire v. Wood a 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 eleventh 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 fourteenth section of the      same act would sanction the issuing of the writ for such a      purpose. But although the judicial power of the United States extends to cases arising under the laws of the     United States, the legislature have not thought proper to      delegate the exercise of that power to its circuit courts,      except in certain specified cases.'

In Kendall v. U.S. 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. 12 Pet. 616, 617. In all the cases prior to Bath Co. v. Amy the want of power in a 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, supplies what was said in McIntire v. Wood and McClung v. Silliman to be wanting. It substantially 'covers the whole ground of the constitution.' It invests the circuit courts of the United States 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 enlargement, by the act of March 3, 1875, of the jurisdiction of the circuit courts, they have power, in the first instance, and in advance of a judgment to issue a writ of mandamus, to compel the performance of purely ministerial acts, requiring no exercise of discretion, and which are necessary to the protection or completion of an individual right arising under the constitution or laws of the United States. Unless the circuit court can interfere, by injunction, to prevent the officers of the state from doing what they propose to do, and, by mandamus, to compel them to perform the ministerial acts required by the statute and constitution of 1874, then its new and enlarged jurisdiction is of no practical value in any case where a state determines to repudiate its contracts and to enforce ordinances impairing their obligation. The power has always existed in those courts to issue such writs, not specifically provided by statute, as 'may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' 1 St. 81, 334; Rev. St. § 716. Jurisdiction to hear and determine a suit arising under the constitution and laws of the United States carries with it the power to issue either a writ of mandamus or a writ of injunction, or both, when essential to the protection and enforcement of rights involved in that suit. In such cases the writ is, in every legal sense, not simply necessary, but vital to the exercise of the jurisdiction granted.

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 go. This court, I submit with great confidence, is in error if it means to say that 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 the officers of the state, 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 fulfill any of the duties attached to their office, or which may be legally required of them.' Section 834. It is, I think, clear that, but for the debt ordinance that court would have sustained the writ in Hart v. Burke, and compelled the state officers to obey the statute and constitution of 1874. What that court adjudged was that while an * officer could not plead the authority of an unconstitutional statute as a justification for the non-performance or violation of his duty, it was different where the authority is an article in the state constitution. Upon that ground alone the writ was refused in Hart v. Burke.

That I do not misinterpret that case is clear from Newman v. Burke, etc., 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 pendin the supreme court of the United States.' So that they only await the final determination of these suits to ascertain whether they can safely execute a state ordinance in conflict with the federal constitution.

The state court, affirming the doctrines of 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 land, anything in the constitution of any state to the contrary notwithstanding, the supreme court of Louisiana holds that, in the matter of state contracts, her constitution is the exclusive mandate to, and absolutely binding upon, her officers, anything in the constitution of the United States to the contrary notwithstanding. And I take leave to say, with all respect for my brethren, that the decision this day rendered can be sustained upon no other ground. But in vain has this court repeatedly adjudged that a suit against the officers of a state or enforce the performance of plain official duties is not necessarily one against the state, within the meaning of that constitution; in vain has it often decided that contracts with states are as fully protected by that constitution as are those between individuals, and that a state can no more impair an existing contract by constitutional provision than by a legislative act; in vain have the circuit courts of the United States been invested with jurisdiction of all suits arising under the constitution and laws of the United States; in vain does that constitution declare that it shall be the supreme law of the land, binding upon the judges in every state, if it be true, as determined by the supreme court of Louisiana, that no court can ever have power to decree a provision of a state constitution invalid on the ground that it impairs the obligation of contracts with that state, or to compel state officers to disregard such invalid provision.

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 Eucyer v. Burke, reported in the same volume with Hart v. Burke, 33 La. Ann. 969. Eucyer 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. The state treasurer declining to comply with this request, an application was made to an inferior state court to compel him to stamp the bonds. His refusal to comply with the relator's demands was based in part upon a statute passed in 1880, (after the debt ordinance went into operation,) which declares that no bond shall be stamped until the coupons of January, 1880, were surrendered. That the relator did not do. Mandamus was refused by the inferior court, but the supreme court of Louisiana, after deciding that the act of 1880 was inoperative, because in conflict with the debt ordinance, said:

'In his answer defendant alleges that the service required of     him by relator is not a ministerial duty, and that the      judiciary has no control over the executive and co-ordinate      branches of the government, except as regards purely      ministerial duties of executive officers. As regards the     first proposition, we decide that the service required in      this case is the performance of a purely ministerial duty,      and this is too plain to require argument. As to the second     proposition, it is elementary; but, while fully recognizing      the independence and all the rights of the co-ordinate      branches of the government, it is only necessary to say that      it is the province and duty of the judiciary, whenever the      question is properly brought before it in judicial      proceedings, to decide whether duties sought to be enforced      at the hands of officers are or are not ministerial, and it      is of the essence of the judiciary to adjudge such questions,      as otherwise those officers would themselves, by their own      decision, be judge of their legal and constitutional powers.'

The judgment of the lower court was reversed, and the mandamus ordered to be issued, at the cost of the state treasurer in both courts.

Thus it is shown that the same court which determined 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, the holders of the consolidated bonds of Louisiana are in this anomalous condition: While the state courts, because of the debt ordinance in the new constitution, will not, by mandamus, compel its 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 in conflict with the federal constitution, the courts of the United States, though now invested with jurisdiction of all suits arising under the constitution and the laws of the United States, are, it seems, without power to compel those officers to respect the inhibition in the supreme law of the land against state laws impairing the obligation of contracts. Such are the results which follow from the action of the supreme political power of a state whose officers, sworn to support the constitution of the United States, are required by the state court to look to the state constitution as their 'exclusive mandate and absolutely binding on them.'

My own conclusions are: That the officers of Louisiana cannot rightfully enforce 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, or refrain from doing which is enjoined, by the supreme law of the land; or to give effect, for any purpose, in the courts of the Union, to the orders of the supreme political power of a state, made in defiance of the constitution of the United States,-is, practically, to announce that, so far as judicial action is concerned, a state may, by nullifying provisions in its fundamental law, destroy rights of contract, the obligations of which the constitution declares shall not be impaired by any state law. To such a doctrine I can never give my assent.

I am, therefore, unable to concur in the opinion and judgment of the court.

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Page:Travels to Discover the Source of the Nile - In the Years 1768, 1769, 1770, 1771, 1772, and 1773 volume 2.djvu/234

 on the Abyssinian side of the Nile, except such tribes of them as, from wars among themselves, have gone over to the king of Abyssinia and obtained lands on the banks of that river, opposite to the nation they have revolted from, against which they have ever after been, the securest bulwark.

division of seven tribes remained in the. center, due south of the low country of Shoa; and these are the least known, as having made, the fewest incursions. They have, indeed, possessed Walaka, a small province between Amhara and Shoa; but this has been permitted politically by the governor of Shoa, as a barrier between him and Abyssinia, on whose sovereign he scarcely acknowledges any dependence but for form's sake, his province being at present an hereditary government descending from father to son.

these tribes of Galla gird Abyssinia round at all points from east to west, making inroads, and burning and murdering all that fall into their hands. The privities of the men they cut off, dry, and hang them up in their houses. They are so merciless as to spare not even women with child, whom they rip up in hopes of destroying a male. The western part of these Galla, which surrounds the peninsula of Gojam and Damot, are called the Boren Galla; and those that are to the east are named Bertuma Galla, though this last word is seldom used in history, where the Galla to the westward are called Boren; and the others Galla merely, without any other addition. All these tribes, though, the most cruel that ever appeared in any country, are yet governed by the strictest discipline at home, where the smallest broil or quarrel among individuals is taken cognizance of, and receives immediate punishment.


text:
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text: Index:Commencement of the Constitution Amendment Act 1993.djvu


text:
Page:Folk-lore - A Quarterly Review. Volume 26, 1915.djvu/32

 22 killed and wounded men, women, and children indiscriminately, and scalped even the women." Or, again, the Cheyenne fire-eater, for all his gallantry towards a foeman worthy of his steel, would display among his trophies a bagful of the right hands of infants gathered among his deadly enemies, the Shoshoni. Possibly he attributed some talismanic or "medicinal" potency to his prize; but we shall hardly err in supposing that incontinent vainglory and an utter insensibility to human suffering and to the claims of the weak were among the primary conditions of the horrid custom. There is no need to enlarge on other manifestations of the ferocity of these savage Paladins, such as notably the torturing of their prisoners. And yet the evil passions provoked by war may be curiously specialized, the discharge of purely spiteful feeling being confined to certain traditional channels; so that, for instance, that last indignity that can be offered to the weakness of woman, the outrage of rape, was utterly unknown amongst these warrior stocks. Take him all in all, however, the Indian brave affords a standing instance of a manly man and yet a man emotionally starved and arrested. No civilized person, who has tasted of the richer moral experience which ripens under conditions of enduring and widespread peace, would be willing to purchase military capacity at the price of becoming in heart and soul a typical Iroquois, or even, let us say, a typical Roman. Civilization must move, not backwards, but forwards. The problem of the modern world in respect to the development of character is, shortly, this: how to acquire hardihood without hardness.

Now that wars may one day cease upon earth is a pious aspiration, to gainsay which may be churlish. It is, at any