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

| Upon these Dllle, original and amended
the complainant moves the court to issu,
the Injunction prayed for in the origina
bill.
1t is obvious to remark that there are in
superable objections to 30 much of tn,
prayer for relief as asks that the defendant
may besdecreed to comply with and specifical
II perform the contracts of the State BY est
mating and collecting the interest and sink
ing fund tax and applying it to the payment
of the principal and interest on the bonds
The objection is that if there is remed,
at all it is remedy at law, namely, by
the issuance of the writ of mandamus. l
this suit were brought against a municipa
corporation and its officers to compel thu
collection of tax to pay the interest on it,
bonds, the plain, adequate and complete
remedy would be the legal writ of manda
mus. 1t is true that before the writ could
! lssue the bOndhOlders must have recovered
Judgment at law on their bonds Bati
County vs. Avery, 13 Wall, 2F; Graham VS.
Norton, Is Wall, 427.
1t may be replied to this that the bond
holders can not lay the necessary founda
ton for the writ of mandamus in the United
States courts, because they are prohibited
from suing the State by the eleventh
amendment to the constitution of the
United States. But this fact may prove
that there is no remedy for the complaints
in the United States courts. 1t certainly
does not follow that because there are OBJ
stacies to the adoption of the plain legal
remedy. that therefore the remedy is
in equity. 1t might as we'll be
claimed that because the bondholders
could not go into court of law and recover
| a judgment against the State upon his
bonds, he might, therefore, 60 into equity
and seek decree against the officers of the
| State for the amount due on his bonds
| When the eleventh amendment to the
constitution declares, that the judicial
| power of the United States shall not be
construed to extend to any suit at law or in
! equity, commenced or prosecuted against
one of the United States by citizens of
| another State, or subjects OF any foreign
State" the purpose is clear to exempt
States from suits upon their contracts, either
| at law or equity; and the fact that this
amendment interpOses an obstacle to suit
| at law against State does not give court
of equity jurisdiction to enforce the same
contract, ON the pretext that there is no
| remedy at law. Suits in both forms against
the State are prohibited
1t is evident, therefore, that should this
bill come on for final hearing, the decree
prayed tor could not be granted.
We may, however, consider the bill as
one for injunction only; and the question
now presented is, can and ought the court
to allow the injunction to go as prayed tor
1t is claimed by the bill, and conceded by
counsel tor defendants, that the bonds of
the State of Louisiana held by compliments
are contracts; that the laws under which
these bonds were issued, and which provide
for the levy and collection Of taxes to nav
the interest and reduce the principal, and
declared that the same should be annually
continued until the principal and interest
of said bonds were fully paid;that these pro-
visions OF law entered into and formed a
og fba< la%r A.
the bOndholder just as completely as if the
laws themselves were inserted in the body
of the bonds. The State has therefore con
tracted that at a certain date named in the
bonds she will pay the principal; that in the
meantime she will pay the interest semi
annually to the holder Of the bonds, and as
an. assurance that this part of her contract
will be performed, she promises, further,
that she will levy and collect an annual tax
to make these payments, and that the rev.
enues raised by this tax shall be set apart
for the purpose of paying said interest and
principal.
1t is conceded that the State has made |
this contract with the compliments in this |
case.
Now, to what ends is the Injunction
sought in this case. They are twotold.
l. To compel the officers of the State to |
execute the contracts OF the State. by es. |
|
to the payment of the bonds the tax origin. |
ally provided by law for the payment of |
the interest and the redemption OF the prin- |
cipal. 1t is true the prayer for Injunction
is that the officers of the State may be re-
strained from hlndering or delaying the e.
timote, levy and collection OF the tax. etc.
But as the defendants are the officers
whose duty it Is to estimate, levy and col
ect, it is clear that such an Injunction from |
this court would be mandator and com.
pei the performance OF affirmative acts.
2. To restrain the State officers from re.
'eiving delinquent taxes in auditors war
ants instead of lawful money OF the United
States.
The first question presented bv the prayer
or in unctioU is, can the officers of the
state be compelled by Injunction to do al
Affirmative act!
The complainant claims TIN at the funding
dill. and the act of March II, 1874, which in
fleet prohibit the collection of taxes for
he payment of the principal and interest of
he outstanding bonds of the State are I'M
Constitutional and therefore void. If this |
'e conceded, then the case is in the same |
hight as it these acts just named had never
,een passed, and as if the officers of the
tate, without pretence of warrant of law,
we're refusing to levy and collect the taxes, |
which the State had agreed should be lev
I'D and collected and applied to the pay
1ent of these bonds. Has this court the
over, by injunction, to compel them by
Mandatory injunction to do an affirmative
ct!
The authorities are adverse. The case of
Valkley vs.. city OF Muscatine. q Wallace. ,
g: was bill in equity, to compel the :
authorities of the city of Muscatine to lew {
Ak upon the property of the inhabitants for
he purpose OF paying the interest on certain {;
onds issued by the city. 1t appeared that
Judgment had been recovered in the same
)urt against the city for $7666, interest due
q the bonds held by plaintiff; that execu- @
on had been issued and returned unsatis-
ed, no property being found liable to exc /
ltion; that the mayor and aldermen had G
dgment, but had refused; that the city '
possessed the power under their
larter to levy tax OF one per cent on the {
alnatiOn of the. city property, and had u
ade levy annually, but had appropriated S
e proceeds to other purposes and had ! l.
holly neglected to pay the interest upon o
le bonds. The bill prayed that the mayor t
I'd aldermen might be decreed to levy the Il
K. and appropriate so much of the pro- c
eds as might be sufficient to pay the judy D
ent, interest and costs. /,
Upon this case the Supreme Court says: I
We are Of opinion that complainant has t.
istaken the appropriate remedy in the r
se which was by writ Of mandamus from a
e Circuit Court"
We have been furnished with no author s
7 for the substitution of q bill in | d
uity and injunction for the writ I
mandamus. An injunction is generally Il
preventive writ, not an affirmative rem G.
y. 1t is sometimes used in the latter a
aracter, but this is in cases where it is | h
ed by the court to carry into effect its a
vn DEGREES, as in putting the purchaser O
lder decree of foreclosure of a mortgage | tt
to possession of the premises. Even the u
ercise of this power was doubted till the | o.