The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-08-12
are less difficulties to overcome, less costly,
and an abundant supply Of water.
THE JUDICIAL REMEDY.

THE JUDICIAL REMEDY.
The Times ignores wholesome old proverb,
that children should not play with edged
tools, when 1t assumes to expound the law
and judicial decisions touching the debt ordi-
nance.
A striking example Is given Of this juvenile
folly in It's article Of Saturday.
It bases it's answer upon the decision in the
MeComb case, and educes from that decision
the proposition which will alarm every tyro
at the law that the writs Of injunction and
mandamus are correative Writs.
The student in our law schools who would
make such reply as this to the question as
to these wrts would be sent to the foot of his
class. Instead of being correlatlve they are
in fact most distinct writs MS to their origin,
object and character.
The writ Of Injunction Issues from the
chancery court, the writ Of mandamus from
the law court; one runs In the name Of the
chancellor and the other Of the king The
law court can no more Issue an Injunction
than tho chancery can issue q mandamus,
and this distinction is happily illustrated In
a case decided subsequently to that OF Nc
Comb We refer to the case OF McCaulay vs.
Kellogg, 2 Wood, p. 10.
This was an attempt Of holders Of old
bonds to compel the Funding Board and
State Treasurer to pay to him out OF the
sinking fund the interest on the full amount
Of his bonds, instead Of applying the same
exclusively to the payment Of the interest on
the scaled bonds. Now read what Judge
Wood said In that case, and how emphatically
~ IaI rnf tbf,T N ff{ ha Ueor
relatl veness" Of Injunction and mandamus.
IT Is obvious that there are insuperable objee-
tons to SO much of the prayer for relief as asks
thu the defendants may be decreed to comply
with and specifically perform the contracts OF
the Slate, by estimating and col lecting the In
terost and sinking fund tax md applying It to
the principal and interest Of the bonds. The
objection is that i there IL o remedy II is rem.
| mandamus. II this suit was brought against
mupiclpa! corporation and Its officers to com
pe the collection Of tax to pay the interest on
It's bonds, the plain adequate. and complete
remedy would be the legal writ Of mapaamua.
It Ia true that before the writ could issue the
bondholders must have recovered q judgment
at law On their bonds.
II may be replied 70 this that the bondholders
cannot lay the foundation for the writ OF man
dnmtls In tho United States courts. because they
are prohibited from suing the Sfhte by the eiev-
esnth amendment to the constitution of the
there ia no remedy In the United States courts.
II certainly does not follow TINT because there
ere obstacles to the adoption Of the plain legal
remedy. therefore the rom dy is In equity. It
might as well be claimed TINT because the bond
holder could not 60 Into court Of law and Sc
cure Judgment against the State upon his
bonds. be might therefore go into equity and
seek u decree again the officers Of The State
for the amount due on bis bonds.
When the eleventh amendment to the GOnHtt
tntjon declares that the judicial power of the
United States shall not be- construed to extend
to any suit ut law or In equity commenced or
prosecuted against one Of the United States by
citizens ~ another State or subjects OF any
foreign States tho purpose Ia clear To exempt
States from suits tn IT. IT, eontracts either ct
mont interposss an obstacle at law against
State. does not give court 81 equity jursdte
text that there IL no =, remedy at law Suits In
both 70. ms against State are prohibited.
Proceeding then to meet the demand for an
Injunction, the Judge says:
Now. to what end Is the injunction sought in
this case2 It is to compel the officers Of the
ment OF the bonds the tax originally provided
by law for the payment Of the interest. II IL
true the prayer for Injunction is that the Off
GERS of the State may be restrained from hin
derng or delaying the estimate levy and cnl!ee-
ton Of the tax. L is clear that such an injune.
ton from this court would be mandatory and
compel tho performance Of affirmative acts.
After citing great many decisions, the
Judge concludes:
The dilemma is this: II the suit Is against tho
defendants in their official characters, and the
claims made upon them are In their, official
to the record II the suit s against the officers,
as individuals merely. and the offices they hold |
are given merely t., describe their persons;
they have no In crest In the subject matter. and
no decree should 60 aga INST them.
This may be done In the case OF the Officers I
OF municipal CORPORATIONS. but tho sovereign I
power Of State cannot be 80 eoerced. To do /
so would be to substitute this court for the exe-
cutive officers Of tho State to supplant their
views OF duty and the obligations imposed on I
them by their official oaths by the discretion Of
this court and It's official oath In other words,
i would be an, undertaking upon the part Of /
this court to administer tbs State government I
This the court has no power and no inclination /
to do. L. my judgment. this is to all intents t
and purposes q suit against the State. The Off |
GERS OF tho State, including the chief executive |
are sued In their official caDa sity, TO comps |
them to execute tho lhWs OF The State. 1t is II |
suit to enforce @ contract # the State to pay I
money. The officers arc not sued as indiyi- |
duals who happen to be In public Office to |
prevent them from doing some actto the preiu- |
dice Of COMPLAINT not warranted by law, ms w4s I
1nni,tnileIs then He eleventh dtaeHtiHeR 10 the I
constitution Of the Nnited tStntes is maste paper.
Now, Mr.. Times, read and carefully digest |
this decision, and then satisfy your clients,
the bondholders, that they would act wisely |
In relying on q judicial remedy from the
United States Court rather than on an ordi
nance providing for the payment OF. the face
OF their debt with reduced interest.
The attempt Of individuals to drag this
State into court Of justice will, we appre-
bend, simply provoke a sentiment Injurious
to their interests and yield them no remedy
of practical value.
Far more serious consequences may flow
from the attempts Of hostile States holding
ebona fide" the bonds Of this State - prose-
cute their claims before the United States
courts.
The DEMOCRAT advocated an adjustment
with the creditors of the State upon an
extreme limit Of the States ability, In
order that Louisiana might escape the
turmoil and strife incident to contest
sustained by the money power and cen
tralstic Influences Of the country, now