# State of Louisiana Elliott v. Jumel/Dissent Field

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Field Harlan
United States Supreme Court
107 U.S. 711
State of Louisiana Elliott v. Jumel
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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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