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certain papers, and that Renfroe be enjoined from paying the coupons on the state bonds, exchanged for the indorsed bonds, and that the state of Georgia may come in and make herself a party defendant to this bill if she should wish to do so; and there is a prayer for general relief.
To this bill there was filed by Flewellen, Lofton, and Jones, the directors, a demurrer and plea, as it is called. The plea is to the effect that they have no interest in the road otherwise than as agents of the state of Georgia, for which they hold and control the Macon & Brunswick Railroad and all its property and franchises of every description, and the plea and demurrer both rely on the proposition that the court has no jurisdiction of the case, because it cannot proceed without the state as a party, and that
the court cannot com pel the state to become a party to the suit. Renfroe, the treasurer, filed a similar plea, and Colquitt, the governor, filed a demurrer and a plea separately. The ground of demurrer stated by the governor is that it is apparent on the face of the bill that the court cannot take cognizance of the matters and things set up in said bill as against the defendant, because it appears that he has no personal interest in the same, but that it is an attempt to make the state of Georgia a party to the suit through the defendant as governor, so as to bind the state by the judgment and decision of the court in the case. . On this demurrer of Colquitt and the joint demurrer of the three trustees the case was decided and the bill dismissed. Mr. Justice Woods in dismissing it said:
“The bill is to all intents and purposes a suit against the state. It is mainly her property, and not that of Alfred H. Colquitt or J. W. Renfroe, that is to be affected by the decree of this court. It is the title of the state that is assailea. The attack is not made against the state directly, but through her officers This indirect way of making the state a party is just as open to objectior as if the state had been named as a defendant." 3 Woods, 426.
The failure of several of the states of the Union to pay the debts which they have contracted and to discharge other obligations of a contract character, when taken in connection with the acknowledged principle that no state can be sued in the ordinary courts as a defendant, except by her own consent, has led, in recent times, to numerous efforts to compel the performance of their obligations by judicial proceedings to which the state is not a party. These suits have generally been instituted in the circuit courts of the United States, or have been removed into them from the state courts.
The original jurisdiction of this court has also been invoked in the recent cases of New Hampshire v. Louisiana and New York v. Same, [2 Sup. Ct. Rep. 176.1 These latter suits were based on the proposition that the constitutional provision that states might sue each other in this court would enable a state whose citizens were owners of obligations of another state to take a transfer of those obligations to herself and sue the defaulting state in the court. The doctrine
was overruled in those cases at the last term by the unanimous opinion of the court. In the suits which have been instituted in the circuit courts the effort has been, while acknowledging the incapacity of thoso courts to assume jurisdiction of a state as a party, to proceed in such a manner against the officers or agents of the state government, or against property of the state in their hands, that relief can be had without making the state a party. The same principle of exemption from liability to suit as applied to the government of the United States has led to like efforts to enforce rights against the government in a similar manner. And it must be confessed that, in regard to both classes of cases, the questions raised have rarely been free from difficulty, and the judges of this court have not always been able to agree in regard to them. Nor is it an easy matter to reconcile all the decisions of the court in this class of cases. While no attempt will be made here to do this, it may not be amiss to try to deduce from them some general principles, sufficient to decide the case before us.
It may be accepted as a point of departure unquestioned, that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the
original jurisdiction con. ferred on that court by the constitution. This principle is conceded in all the cases, and whenever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in many cases the courts can see will bo defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding the state not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose soundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consideration.
1. It has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the
government, the court will proceed to discharge its duty in regard to that property. And the state, if it choose to comu in as plaintiff, as in prize cases or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. Of this class are the cases of The Siren, 7 Wall. 157; The Davis, 10 Wall. 20; and Clark v. Barnard, [2 SUP. Ct. REP. 878,) at the last term.
2. Another class of cases is where an individual is sued in tort for
some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 209; Meigs V. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall, 393. To this class belongs also the recent case of U.S.v. Lee, 106 U. S. 196,[S. C. 1 Sup. Cr. REP. 240,] for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants, Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and, therefore, insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession.
3. A third class, which has given rise to more controversy, is where the law bas imposed upon an officer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. Of this class are writs of mandamus to public officers, as in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; U. S. v. Schurz, 102 U. 8. 378; U. S. v. Boutwell, 17 Wall. 604. But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer.
It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the in. dividual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or en. join the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premises. Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203. In that case, the state of Texas having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the state land-office and the governor of the state were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court enjoined them from doing this by its decree, which was affirmed in this court. Judge Hunt did not sit in the case, and Justice Davis and Chief Justice CHASE dissented, on the ground that it was in effect a suit against the state. Though there are some expressions in the opinion which are unfavorably criticised in the opinions of both the majority and minority of this court in the recent case of U. S. v. Lee, supra, the action of the court has not been overruled. But it is clear that, in enjoining the governor of the state in the perform. ance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further. Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform Any act towards perfecting the title of the company.
The case of the Board of Liquidation v. McComb is to the same effect. The board of liquidation was charged by the statute of Lou. isiana with certain duties in regard to issuing new bonds of the state in place of old ones, which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the circuit court enjoining the board from exceeding its power in taking up by the new issue a class of state indebtedness not within the provisions of the law on that subject. 99 U. S. 531.
In the opinion in that case the language used by Mr. Justice BBADLEY well and tersely thus expresses the rule and its limitations :
" The objections to proceeding against state officers by mandamus or injuno tion are -First, that it is in effect proceeding against the state itself; and, second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these can be done. A state, without its consent, cannot be sued as 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 settled that where a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel performance; and when such duty is threatened to be vio lated 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.”
It is believed that this is as far as this court has gone in granting relief in this class of cases. The case of Osborn v. Bank of U. S. 9 Wheat. 738, often referred to, was upon this principle, and goes no further; for, in that case, a preliminary injunction of the court forbidding the state officer from placing the money of the bank, which he had seized, in the treasury of the state, having been disregarded, the final decree corrected this violation of the injunction by requiring the restoration of the money thus removed. See Louisiana v.
Jumel, 107 U. S. 711; [S. C. 2 SUP. Ct. REP. 128.] On the other hand, in the cases of Louisiana v. Jumel and Elliott v. Wiltz, decided at the last term, very ably argued and very fully considered, the court declined to go any further. 107 U. S. 711; [S. C. 2 Sup. Ct. REP. 128.]
In the first of these cases the owners of the new bonds issued by the board of liquidation, mentioned in McComb's Case, supra, brought their bill in equity, in the circuit court of the United States, to compel the auditor of state and the treasurer of the state to pay out of the treasury of the state the overdue interest coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the state court for a writ of mandamus to the same officers, which suit was removed into the circuit court of the United States. In this they asked that these officers be commanded to pay out of the moneys in the treasury the taxes which they maintained had been assessed for the purpose of paying the in. terest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government. The circuit court refused the relief asked in each case, and this rourt affirmed the judgment of that court. The short statement of the rea son for this judgment is that as the state could not be sued or made a party to such proceeding, there was no jurisdiction in the circuit court, either by mandamus at law or by a decree in chancery, to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in the treasury in the manner which the court might think just. The obiet justice said:
“The treasurer of the state is the keeper of the money collected from this tax, just as he is the keeper of other public moneys. The taxes were collected by the tax collectors, and paid over to him—that is to say, into the state treasury—just as other taxes were when collected. He is no more a trustee of these moneys than he is of all other public moneys. He holds them only as agent of the state. If there is any trust, the state is the trustee; and, unless the state can be sued, the trustee cannot be enjoined. The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. It was never agreed that their relations with the bondholders should be other than as officers of the state, or that they should have any control over this fund except to keep it like other funds in the treasury, and pay it out according to law. They can be moved through the state, but not the state through them.”
We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the state or federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, As for injuries to person or to property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority