New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-03-22

| tnis 10 an indirect way OF praying for a
Injunction to compel the State officers to n
ceive the DELINQUENT taxes in lawful none
of the United States according to the cor
tract Of the State as claimed by complain
auts. The compliments would not be salts
fed should the State officers suspend tn
receipt of State warrants. The eviden
purpose Of this part of the injunction is t
compel them to receive lawful money, 70
unless the officers, after declining to receiv
Auditors warrants, proceeded to collec
the taxes in lawful money the complainant
would take no advantage from his motion
But the fatal objection to the motion O
complainant is found in the character o
his bill. 1t is either q suit in effect agains
the State of Louisiana or, if not, the partie
defendant are merely nominal parties, hav
| ing no real IN interest in the controversy. Ii
either case no decree can be made in tn
| cause.
| This case is clearly disting uishable from
the case of Osborne VS.. the Bank of tn
| United States, Wheaton, 1873, and that Of
| Davis vs.. Gray, l6 Wall, 2O3, and other case
cited by complainant.
In the case of Osborne vs.. the bank the
bill was filed by the bank to restrain Us
borne, who was Auditor of the State ol
Ohio, from acting under void law of q
State in the collection Of tax levied upon
the bank and for decree against Curry
the late Treasurer, Sullivan, the incumbent
Treasurer, and Osborne, the Auditor, fol
money illegally collected by them from the
bank.
1t was. alleged in the bill that neithe,
Curry nor Sullivan held the money as Off
GERS, but as individuals.
The court in this case held that the suit
was we'll brought, BECAUSE the State was
not nOminally a party to the record, and
a no pti do Aafa dom l. o6 in
terest In the cause, since their personal re-
sponsibility was acknowledged, and, if de-
MED, could be demonstrated.
In the case of Davis vs.. Gray, Davis, who
was defendant in the court below, and who
was named upon the record as Governor of
Texas, was sought to be enioined from cast
ing cloud upon the title of complainant to
certain lands in Texas by locating warrants
thereon in pursuance of void and. uncOn-
stitutiOnal enactment OF the State. Although
he professed to act as Governor he was i'm
pairing the rights of complainant without
the authority of any valid law; he was act
ing In his own wrong, and upon his own
responsibility and was personally liable.
In both these cases the object was to re-
strain individuals holding public offices
from dong acts to the injury of complain.
ant for which there was no legal warrant
and by the doing of which they incurred a
personal liability. How different is the
case under consideration. Here is an at
tempt to compel the public officers of a
State to do positive and affirmative acts as
such; to compel the carrying out of what the
complainant conceives to be the law of the
State, not in accordance with their own
sense of duty and their own Interpretation
OF the law.
IN the case of kentucky VS.. Dennison,
Governor, 81 Howard 100, it was held that
neither the Congress nor the courts of the
United States could coerce State officer as
such to perform any duty imposed wpOn
him by act of Congress. Does it not follow
Il }ortiori that court of the United States
can not compel the Governor of State to
execute law passed by the Stares
In Osborne vs.. the Bank and Davis vs..
Grey it was held that United States cir.
cult court might. in a proper case in equity,
enjOin State officer from executing State
law in conflict with the constitution or a
statute of the United States when such exc
cutiOn would violate the rights of complain
ant. But no case has yet decided that a
circuit court OF the United States can COM
pei the executive and administrative Off
GERS OF State to execute the laws of the
State.
The dilemma is this: If the suit is against
the defendants in their official character,
and the claims made upon them are in
their official character, the State NAV be
considered party to the record. Madrazo
VS.. Governor of Georgia, Peters, no. If
she suit is against the officers as individ-
lals merely, and the offices they hold are
given merely to describe their'persons, they
nave no interest in the subject matter and |
10 decree should 90 against them.
N the view l have taken Of the case l |
rave conceded what complainants claim,
hat the funding bill and the act OF March !
a, 1874, are both unconstitutional and |
old, and have regarded the case just as if |
hose acts had never been passed, to wit: |
ill to compel the defendants, officers of |
he State, to execute its laws. This may be |
lone IN the case of the officers of municipal |
operations. but the sovereign power OF
'tate can not be SO coerced. To do SO would |
Re to substitute this court for the execu-
i've officers of the State. to supplant their
Jews OF duty anu the obligations i'm.
osed upon them b. their official oath
y the discretion of this court and its official
ath. In other 'ords. it would be an ua-
ertaking on the part OF this court to ad-
llnlster the State govern ment This the |
Ourt has no power and 40 inclinntiOn to
In my Judgment, this is to all intents
nd purposes suit AGAINST the State. The
rncers OF the State, including the chief
xecutiye. are sued in their official capac.
y to compel them to execute the laws of
ne State. 1t is suit to enforce contract
the state to pay money. The officers are
OF sued as individuals who happen to be
| public once to prevent them from doing
'me act to the prejudice of complainant not
arranted by law, as was the case in Osborne
). the Bank and Davis vs.. Gray. If suit
se this can be sustained then the eleventh
nendment to the constitution of the United
.ates is waste paper.
For the reasons stated, the motion for in
notion is Overruled
Superior District Court
The following petition was filed, but no
der iseued:
John u. MOnrose VS.. City of New Or
ans.-PetitiOn alleges debt of the city
So3lo Tor commissions of two and half
IT cent on the sale Of the market for the
'ar 1874 for $3.50,
George Woods VS.. New Orleans Gaslight |
ompany: Crescent City Gaslight Com
my vs.: New Orleans Gaslight Company;
ate OF Louisiana and City of New Or
ans, lntervenOrs.-These cases have been
trial two days. The first is an applica-
IN for restraining order, alleging the
gal termination of the existence of the
rporation April l, 1875, to prevent the ex
ndlture OF the surplus funds or any act
Dking to the continuance OF the charter. I
le plaintiff in the second suit alleges the
rmination of the defendant company's
yhts; that the pretense of continuation is
SANDER OF title and is unconstitutional
9TH aak for perpetual injunction. The
ate intervenes in both cases, insisting on
Q termination of defendants charter.
le city OF New Orleans also intervenes in 6
e second suit, claiming that defendants
arter has been forfeited by non perform
ce; that the extension by the act of 1860 i
S never been accepted BY the city; and I
10 that the city has the right of purchase
the works April l, 1875. Further, that /
e act creating the plaintiff company is t
constitutional, in violating the obligation +
contracts and 10 vostoI rinhta of tho | I