·propos- nas when an mair to

u regard to prop why he holds as on or after us hus poss: cannot be disturbed when that fact bot to the attents of thech has been overruled xdenied in every ease where it has been necessary to decide it 215-216 aryl report

n

392

RELIEF AGAINST ADMINISTRATIVE ACTION.

(Part 2

It cannot be tree

American authorities, relying especially upon Meigs v. McClung's
Lessee, 9 Cranch, 11, 3 L. Ed. 639, and Osborn v. United States Bank,
9 Wheat. 738, 6 L. Ed. 204. This portion of the opinion is omitted.]
Looking at the question upon principle, and apart from the author-
ity of adjudged cases, we think it still clearer that this branch of the
defense cannot be maintained. It seems to be opposed to all the prin-
ciples upon which the rights of the citizen, when brought in collision
with the acts of the government, must be determined. In such cases

hat mere allegat
hat wow! wady
co On of us forbed
any
inquiry with there is no safety for the citizen, except in the protection of the
the truth of the alleygn)

judicial tribunals, for rights which have been invaded by the officers
of the government, professing to act in its name. There remains to
him but the alternative of resistance, which may amount to crime.
The position assumed here is that, however clear his rights, no rem-
edy can be afforded to him when it is seen that his opponent is an
officer of the United States, claiming to act under its authority; for,
as Chief Justice Marshall says, to examine whether this authority
is rightfully assumed is the exercise of jurisdiction, and must lead
to the decision of the merits of the question. The objection of the
plaintiffs in error necessarily forbids any inquiry into the truth of
the assumption that the parties setting up such authority are lawfully
possessed of it, for the argument is that the formal suggestion of
the existence of such authority forbids any inquiry into the truth
of the suggestion.

But why should not the truth of the suggestion and the lawful-
ness of the authority be made the subject of judicial investigation?
In the case supposed the court has before it a plaintiff capable of su-
ing, a defendant who has no personal exemption from suit, and a
cause of action cognizable in the court-a case within the meaning
of that term, as employed in the Constitution and defined by the de-
cisions of this court. It is to be presumed in favor of the jurisdic-
tion of the court that the plaintiff may be able to prove the right which
he asserts in his declaration. What is that right as established by
the verdict of the jury in this case? It is the right to the possession
of the homestead of plaintiff—a right to recover that which has been
taken from him by force and violence, and detained by the strong
hand. This right being clearly established, we are told that the
court can proceed no further, because it appears that certain military
officers, acting under the orders of the President, have seized this
estate, and converted one part of it into a military fort and another
into a cemetery. It is not pretended, as the case now stands, that
the president had any lawful authority to do this, or that the legis-
lative body could give him any such authority except upon payment
of just compensation. The defense stands here solely upon the ab-
solute immunity from judicial inquiry of every one who asserts au-
thority from the executive branch of the government, however clear
it may be made that the executive possessed no such power. Not

only that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation.

has

L

These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground jn v sv as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the de- protector of ctz partments of the government established by that Constitution. As depriv2. prop. we have already said, the writ of habeas corpus has been often used due process

to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on the part of the executive and the legislative branches of the government. See Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281, and the Case of Kilbourn, discharged from the custody of the sergeant at arms of the House of Representatives by Chief Justice Carter. Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377.

Wo.

No man in this country is so high that he is above the law. No Qganistany & 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. Courts of justice are established, not only to decide upon the con- vs Gout re troverted rights of the citizens as against each other, but also upon rights in controversy between them and the government, and the_ docket of this court is crowded with controversies of the latter class. Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the President has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights. It cannot be, then, that when in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, "Stop, here; I hold by order of the Presi

dent, and the progress of justice must be stayed." That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the_suit, though one of the three great branches of the government to which by the constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen.

The evils supposed to grow out of the possible interference of

Args os jn consider udicial action with the exercise of powers of the government essenJudicial interf the exercise of pornsofort has not in practice the most except! ao well asosh ene proved a menace

tial to some of its most important operations will be seen to be small indeed compared to this evil, and much diminished, if they do not wholly disappear, upon a recurrence to a few considerations. One of these, of no little significance, is that during the existence of the government for now nearly a century under the present constitution,

as

with this principle and the practice under it well established, no

injury from it has come to that government. During this time at least two wars so serious as to call into exercise all the powers and all the resources of the government have been conducted to a successful issue. One of these was a great civil war, such as the world has seldom known, which strained the powers of the national government to their utmost tension. In the course of this war persons hostile to the Union did not hesitate to invoke the powers of the courts for their protection as citizens in order to cripple the exercise of the authority necessary to put down the rebellion, yet no improper interference with the exercise of that authority was permitted or attempted by the courts. Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437; Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721; Same v. Grant, 6 Wall. 241, 18 L. Ed. 848; Ex parte Tarble, 13 Wall. 397, 20 L. Ed.

597.

Another consideration is that since the United States cannot be

2.U.S. cant he made made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of

adeft to a Ruution cert its propr nost, ma suit is the indiol cupr or control bruds it

ша

bom (so the forceof is futile)

But us can then have as falach tdetermits title +presumptrit will be bad)

such property can bind or conclude the government, as is decided by this court in the case of Carr v. U. S., 98 U. S. 433, 25 L. Ed. 209,

already referred to, the government is always at liberty, notwithstand

ing any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights. Hence, taking the present case as an illustration, the United States may proceed by a bill in chancery to

it its title, in aid of which, if a proper case is made, a writ of injunction may be obtained. injunction may be obtained. Or it may bring an action of ejectment, in which, on a direct issue between the United States as plain

tiff and the present plaintiff as defendant, the title of the United States could be judicially determined. Or, if satisfied that its title

In 10gus. 446, 452 Sup Cr paid of plc Thujt in that case didnot conclude the us, as the open carefully stated, butheld the &fis hable as unauthy? Firspasser & turned them out of ther unlawful pr but tuct Mure (oghs declined to enforce a beum RI in actual prof.? claimed in the State since a dierce of sale and be fruitless as no title ed before to the tor chuser wo the presence of the st. as a party to the preindy. Fuldo Harlan dissent in my...?

Ch. 8)

ACTIONS FOR SPECIFIC RELIEF.

395

has been shown to be invalid, and it still desires to use the prop-
erty, or any part of it, for the purposes to which it is now devoted,
it may purchase such property by fair negotiation, or condemn it by
a judicial proceeding, in which a just compensation shall be ascer-
tained and paid according to the constitution.

If it be said that the proposition here established may subject the
property, the officers of the United States, and the performance of
their indispensable functions to hostile proceedings in the state courts,
the answer is that no case can arise in a state court where the in-
terests, the property, the rights, or the authority of the federal gov-

ernment may come in question, which cannot be removed into a court
of the United States under existing laws. In all cases, therefore,
where such questions can arise they are to be decided, at the option
of the parties representing the United States, in courts which are
the creation of the federal government. The slightest consideration
of the nature, the character, the organization, and the powers of these
courts will dispel any fear of serious injury to the government at
their hands. While by the Constitution the judicial department is
recognized as one of the three great branches among which all the
powers and functions of the government are distributed, it is inher-
ently the weakest of them all. Dependent as its courts are for the
enforcement of their judgments upon officers appointed by the exec-
utive, and removable at his pleasure, with no patronage and no
control of purse or sword, their power and influence rests solely up-
on the public sense of the necessity for the existence of a tribunal
to which all may appeal for the assertion and protection of rights
guaranteed by the Constitution and by the laws of the land, and on
the confidence reposed in the soundness of their decisions and the
purity of their motives. From such a tribunal no well-founded fear
can be entertained of injustice to the government or purpose to ob-
struct or diminish its just authority.

The Circuit Court was competent to decide the issues in this case
before the parties that were before it. In the principles on which
these issues were decided no error has been found, and its judgment
is affirmed.

Mr. Justice GRAY delivered a dissenting opinion, in which the CHIEF JUSTICE, Mr. Justice BRADLEY, and Mr. Justice Woods concurred. 3

3 See observations of Justice Bradley in Carr v. United States, 98 U. S.
433, 437, 438, 25 L. Ed. 209 (1878); Hare, Constitutional Law, lecture 40,
p. 887.
Followed: Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137
(1897).

See Herr v. Central Kentucky Lunatic Asylum, 97 Ky. 458, 462, 30 S. W.
971 (28 L. R. A. 394, 53 Am. St. Rep. 414) (1895): “As a necessary conse-
quence of exemption of the state from suit without its consent, an action nom-
inally against an officer, but really against the state, to enforce performance
of its obligation in its political capacity, cannot be maintained. But if of-

3

subj prop dis afles &

thurach to hustile proves from

m&ct= but caure

mor to fedel

• Fed Chicaut

2244.289,305,611, 368,282,536

SECTION 43.—INJUNCTION-IN GENERAL

The following brief report indicates the use of injunctions against the action of administrative authorities at an early period: › BOX v. ALLEN, 1 Dickens, 49 (April 26, 1727): "Bill to be relieved against an order of the commissioners of sewers. Demurrer to so much of the bill as sought to alter any of the orders of the commissioners, or to return any money by them received, for that the remedy was at law, and no equity to be relieved in this court. The demurrer was overruled."

Generally speaking, however, such use is of relatively recent origin. See Kerrison v. Sparrow, Cooper's Cases in Chancery temp. Lord Eldon, 305 (1815); Movers v. Smedley, 6 Johns. Ch. (N. Y.) 28 (1822), Kent, Ch.: "This is not the case of a private trust, but the official act of a political body; and in the whole history of the English Court of Chancery there is no instance of the assertion of such a jurisdiction as is now contended for."

In many cases the remedy in equity has been applied without being questioned. See Cook Co. v. C., B. & Q. R. Co., 35 Ill. 460, 467; C., B. & Q. R. Co. v. Cole, 75 Ill. 591; Porter v. R., R. I., etc., R. Co., 76 Ill. 561; Hersey v. Board of Supervisors, 37 Wis. 75; Bank of Utica v. Utica, 4 Paige (N. Y.) 399, 27 Am. Dec. 71; Noble v. Union River Logging R. R., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123, post, p. 638 (see Cruickshank v. Bidwell, 176 U. S. 73, 80, 20 L. Ed. 280, 44 L. Ed. 377); Minnesota v. Hitchcock, 185 U. S. 373, 22 Sup. Ct. 650, 46 L. Ed. 954 (see Oregon v. Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935).

ficers or agents of the state invade private right in a mode not authorized by statute under which they claim to act, or if such statute is invalid, unquestionably the person injured has at least a preventive remedy, although the state may be affected by the proceeding, yet not a party to it."

See Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303, 88 N. E. 753 (1909): "It may be conceded that the state was in possession through the agency of its forest commission; but nevertheless an action of ejectment brought against the commission would be in effect an action against the state itself, judgment wherein would operate to deprive it of the property it had acquired by purchase."

As to what constitutes a suit against the state, see, further, In re Ayers, 123 U. S. 443, 501, 8 Sup. Ct. 164, 31 L. Ed. 216 (1887); Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535 (1899); Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932 (1908); and an article by Judge Jacob Trieber in 41 Am. Law Review. p. 844 on “Suability of States by Individuals in the Courts of the United States."

Robertson, Civil Proceedings by and against the Crown, p. 332: "It is clear from the statements made above that a petition of right lies for the recovery of lands, but instances outside of the Year Books have not been numerous."