Daily globe., 1881-09-11

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tract on the part of the State rests with an
officer of the State and the courts can, by
mandamus or otherwise, compel him TO per
form it. From the many instances found IN
the books of the State courts enforcing judi
cial remedies against the State upon its con-
tracts, we will refer to two: In the case OF
McCauley VS.. Brooks, IL Cal. II the State OF
California, had entered into contract with
private person which required the periodical
payment of money by the State to such person5
The Legislature passed an act appropriatlng
money in the state treasury To meet the de-
mands of the Contract, and directing the state
comptroller To draw his warrants ON the
treasurer for the instalments as they should
fall due. A subsequent act the legislature
forbade the comptroller to draw his warrants
except upon the approval OF board OF ex-
aminers. Pursuant TO this act the comp
troller refused to draw his warrants for the
installments without the approval OF that
board. The contractor applied to the supreme
court Of the Slate for a mandamus to compel
him to draw them, and the court granted the
peremptory writ, thus enforcing against the
State complete judicial remedy. Though
in form against the comptroller, 1t
was in substance against the State,
for it was the money of the state,
AM not OF tne couOtroiei, "nISn
reached The other case is the st. Paul q
Chicago Railway Company vs.. Brown, "a
Mimi, SIT. There The State OF Minnesota had
granted or contracted to grant certain swamp
lands to the railroad company, and subse-
uuent act of the legislature had appropriated
the same lands to certain State institutions,
and for that purpose had vested they nominal
title in trustees the defendants in the suit.
The legislature consented to suit against
them to test the validity of it's appropriation
of the lands, and the suit was brought. Inc
court treated it as an action against the State,
saying, p. 574: "The subject matter OF the &c.
tion is property belonging to the State, and
the action, though nominally against tne
trustees, is virtually against the State, to de.
termine its right in the property involved"
It alse held that the judgment might enforce
itself by passing or confirming the title.
The proposition that when the legislature en-
ploys its authority to bring about perform.
| ance of a State contract it is the State ltsell
which acts and the act is therefore voluntary
and not remedial may be stated with as much
propriety of the State judiciary when it ad-
ministers judicial remedy against the State.
For the judiciary is not superior nor independ-
ent of the State 1t is as the legislature is only
branch or department OF the State govern
ment. It exercises, as does the legislature,
only part of the sovereign power OF the
State.
1t is true that the action of the legislature
within its proper sphere is the actlon OF tne
State. But it is equally true of the action OF
the judicial and executive departments acting
within their respective proper spheres. Though
each exercising the sovereign power OF the
State belonging to its department, neither OF
them Is the State, nor do they all together
constitute it, They are the instrumentalities
appointed by the State to govern it, to employ
its sovereign power, and control its action; nor
do the people constitute the State, though it e1-
lists for their benefit, and is maintained by their
means. A people without any political organ
ization, without any government, Is not q
State. When, within prescribed territorial
limits, they effect political organization and
establish government, q State arises. The
government Is established TO protect them
from external wrong and internal disorder.
In this organization and government what is
called sovereign power rests. Under Ameri-
can organizations it does not all reside in any
one department, but is distributed among
them, each welding the portion vested in it as
well against the body OF the people as against
individuals. Each exercises within its proper
sphere compulsive force. The acts of the
legislature have as much binding force, not
only on individuals, but on the entity called the
State, the people within the proper territorial
limits as an organized political society, as do
the decisions. or judgments of the courts.
Whether court may exercise the power
entrusted to it against the State, and if so to
what extent, depends on what the people in
distributing the governmental power by means
of the organic law or constitution deem ex-
pedient. To what extent the legislature may
exercise its power against the State and COM
pei it by legislation to perform its contracts,
has entrusted to it power and the duty of ad-
ministering remedies in favor of State credit
ors, depends also on the same thing.
When the legislature by law directs the
treasurer of the State to pay it's creditors
money of the State in the treasury, how does
that differ so far as compellingthe State is con-
eerned from the case of a court if the public
policy of the State permitted it, directing the
same officer to nay the same money to the
same creditor?
Or, if the constitution place it within the
judicial power, and there 10 no reason except
of expedency, why it might not to-day and
distribute the burden ofa State debt upon the
taxable property within the State. Now, SC
| far as regards compulsion of the State, would
| the action of the courts in doing it differ from
that OF the legislature in levying and distrlbut-
| ing a tax upon the same property for the same
| debt? In such cases the action OF the legis.
lature and the action of the Judiciary would
be equally compulsive, though in the one case
it would be legislative and the other judicial
action, that where the legislature acts its COM
mands are executed by one set of officers
and where the judiciary acts its commands are
executed by another set, could make NO differ
ence SO far as the power to be deemed to be
compulsive or not. The exercise of power to
do is ALWAYS compulsive, SO If ju-
dicial action in favor of q creditor is
remedy because it is compulsive, legislative
action for the same purposes is also for the
same reason a remedy. 1t Is true the legisla-
ture is independent of the other departments,
and there are no remedies to compel it to per.
form it's duties and exercise its power. 1t was
equally so with the judiciary. Each has its
duty to perform. The duty is as imperative
upon the one as the other We see no reason,
therefore, why the power and duty vested in
and imposed on the legislature to provide for
payment of State debt Is not remedy, or
means of remedy, as much as the power and
duty vested in and imposed on court to en-
force payment as between private persons.
It may not be, and, as a fact, is
not equally valuable with judicial remedy;
but this is due rather to the difference in the
composition of legislatures and courts and in
their modes of procedure than to the
difference in the powers entrusted to them.
1t is sometimes difficult to say whether law
operates directly on the contract to change
its terms or upon the remedy to regulate or
vary, that it is SO here. For it may be ques-
tion whether it did not enter into and become
a term or condition of the contract as much
as though expressed in the bonds
that the legislature of the Stale
should provide and appropriate money
A. fhnro