Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-02-18

Gus To another In regard 10 person or pro-
perty. 10 which his defence is that nc mas
acted under the orders OF the GoveILneht,
In these cases lie In not sued as, or Dec8use
ne Is. the officer Of the government Dut y,
an individual. and the court is not ousteu
of Jurisdiction because he asserts authority
az such officer To this class be-
longs the recent case OF United States .. Lee,
l06 l.. \. 1896 fthe Arlington case Tor the
action OF eiectment In that case ~. In us
essential character, an action Oi treslhlSs
with the power In the court 10 restore Iiie
,ossession to the plaintlft as part OF ihs
Judgment. And the defendants. Strols ahu
Kaufman being sued individually as Tres
passers set up their authority as oiilcers ol
The United states. which this court held 70
be unlawful. and therefore insufhcloh' rs
3. "A third class, which has given rise To
more controversy, IN where the law mas inl-
posed upon an officer of the Government 0
well-defined duty In regard to spec'nc
matter not affecting the general powers Oh
functions OF Government, but IN lhe PIT
formance Of which one or more indiNluuaIs
have distinct interest capable OF enforce.
ment by Judicial process. In all
such cases from the nature OF the remedy
by mandamus. the duty 10 be perloIIneu
must be merely ministerial, ana must IN
VolVe no element of discretion 10 ne eNer-
clsed by the officer. II has. however. been
much insisted on that In this class OF cases
where 10 shall be found necessary 10 en-
force the rights OF the individual q court
Of chancery may, by llanua'osy ,,
decree or 10y Injunction. compel the
performance OF the appropriate duty
or enioin the officer from doing that which
is Inconsistent with that duty ana WIN tne
plaintiffs rights In the premises: Ierhaps
the strongest assertion OF TINS dOctrine i
found in the case of Darts p. gray. l6 wal
lace. 2O3. In that case, the state OF texas
having made n grant Of the alternate sec.
tons OfIand along which railroad should
he located, and the railroad company nav
ing surveyed the land at its own expense
and located It's road through it the commits
1oner of the State Land-Office and the Gov
ernOr OF the state were. in VOCATION OF inc
rights Of the company. selling ana dellNeflne
patents for the sections TO which the com
pany had an undOubted vested right. The
Circuit Court enjolned them from ~
doing. which was affirmed IN this court
. - II is clear that In eniOining the GOV
ernOr Of the State in The performance oi
one of his executive functions, the case
goes To the verge OF sound doctrine. II not
beyond II; and that the principle should b.
extended no further. Nor was there IN that
case any Affirmative relief granted by
ordering the Governor and Land Com
missioner 10 perform any act towards per
fecting the title Of the company.
The ease OF the BOGId NJ LjgUidGiiOn T.
NcCOn,b 92 L. X, j3l. Is 10 the same effect
The Board Of Liquidation was charged by
the statute Of Louisiana with certain du-
ties in regard TO issuing new bonds OF the
State in place Of old ones. which might he
surrendered for exchange 10y the holders oi
the latter. The amount OF the new bonds
was limited by a constitutional provision
McCOmb, the owner OF some OF the
new bonds already issued. filed his bill TO re-
strain the Board from issuing that class Ol
bonds ia exchange for class Of Indebted
ness not included within the purVicw of the
statute, on the ground that hs own bonds
would thereby be rendered less valuable.
I his court affirmed the decree of the Circuit
Court cnjOining the Board from exceeding
It's power in taking up by the new issue a
class Of state Indebtedness not within the
provisions OF the law on the subject. ia the
opinion in that case the language Of Mr.
Justice Bradley tcnely thus expresses the
rule and lis limitations.
THE objections to proceeding against
state officers 10y mandamus or inJun't ON
are. first. that II is in elect proceeding
against the State itself; aud. second. that
it iuterlcrcs with the official discretion
vested in the officers. II is conceded that
neither of these can bc done. \ state,
without its consent. cannot hc sued as an
individual: and Il court cannot substitute
It's own discretion for that of executive Off
cpls in matters belonging to the proper III
rSdici.on OF the latter. But ~ has been
settled that where a pam official duty re-
curing 10 exercise of discretion Il 10 bc
performed. ana performance is refused. any
peiSGn WHO VIII sustain a personal injury
hN SNCii ltlhstI ildN lhNf lHdlNdllluN W
compel performance: and. when such duty
- threatened 10 be violated 10y some posi-
tive official act. amy person VINO VIII slis-
tain personal iniEIy thereby for which
adequate compensation cannot be had ~
law. may have an Injunction 10 prevent II.
1t is believed that this is AZ far as this
court has gone in granting relief ln this
class of cases.
"Cn the other hand. in the eases Of LoUis-
.ooa o.. Jl,1 and JH,Ou o.. IliH- lu7
a NHHraN al ltI Il a Ia @
very fully considered. tac court declined IN
goauN further. The short state
mCut of thc reason for It's judgment in those
cases j.. that rs the state could not be sued
or made a party To such proceeding, There
vas no jurisdiction in the Circuit Court
either 10y mandamus al law, or 10y a decree
In ChancerN. totake charge Of the Treasury
of the state. and. selling the hands Of the
Auditor and TREASURER. 10 make distribu-
tion Cf the funds found In the Treasury IN
the manner which the court might think
lust We think the foregoing cases
mark with reasonable precision The limit
Of the power Otthe courts in cases affecting
the rights OF the state or Federal Govern
mems in suits 10 which they are not Nolun-
tarN parties.
In actions at law Of which mandamus is
one. where an individual - sued
In regard tos duty which he j. personally
bound TO perform. the Government does not
stand behind him TO defend him. II he has
the authority Oflaw tOsuStain him in what
he has done. like any other defendant hc
must show il To the court and abide the re
suit. In either ease the State is not bound
by the Judgment Of the court: and, gcner-
ally its rights remain unaffected. II Is no
answer for the defendant Ia say, ! am an
ofiicerOfthe Government and'acted under its
authority. unless he shows the sutliCicncY Of
that authority. Courts Of equity proceed
upon different principles IN regard to par
ties, &c, &C.
After this careful review of the de-
cisionS the Court said that in the case
before j, Georgia was an indlspenS BILE
party. and that, as the object of the suit
was to di>posScss her Of railroad OF
which She had both title and actual
possession, the suit was not one of
which it could retain jurisdiction.
The reasoning Of the Supreme Court
in this case Of Cunningham y. R0ii-
road Compday. really Cunningham T..
Gco,g,a dor the State herself was the
railroad company, settles IN advance
the case pending before il from Nir-
einia Of .1Hea aad Ha~UoH y. Boiiiwore
amt Oito RoiIroo3 CompaHy. and
makes it reasonably certain that. at
least on the question of jurisdiction ~
to parties. it will affirm the ruling OF
Judge Bond and reverse my own.
1t settles also the case at bar; for
the granting Of a preliminary injunction
here Is by no means as extreme IN eN-
clcl>e of iurisdictional power as there
was in the Texas case. where a Federal
court arrested the hand of Go;crnor
and Land Commissioner while engaged
IN violating legislative contract or a
there was IN the Louisiana and McCOmb
case where another Federal court. in
order to prevent an indirect and contin-
gent depreciation Of complainant :
bonds, forbade the States financial
Board from issuing bonds which they
deemed, bat which the court denied.
that they had a right to issue: or a.
there was in the Arlington case, where
this court. in which | now sit, gave
Judgment against officers Of the army
of the United States, holding for the
United States. one Of them in charge OF
a cemetery for Union soldiers order
ing them of the patrimony of the Lees
and requiring possession to be- given 10
a general of the Confedcracy.
Compared with those eases, the one
at bar. involving as it does. les, than
$1,000 in nominal value of di,honored
coupons. is not of superior importance.
think from what itself has SAID that
there can he no reasonable doubt en-