The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1885-02-26

property Of the State, or property in which the
state has an interest, comes before the court
judicial administration, without being forcibly
taken from the possession of the Government,
the court VIII proceed 70 discharge It's duty in
q Another class of cases is where an indi-
vidual is sued in tort for some act injurious to
another In regard to person property, to
which his defence is that he has acted under
the orders Of the Government. In these cases
ne 10 not sued as, or because he is, the officer of
the government, but as an individual. and the
court Is not ousted of jurisdiction because he
this class belongs the recent case of United
States Lee. LOS U. s., 1876, 1.-THE Arlington easel;
for the action Of eiectment in that case is, IN
It's essential character, an action of trespasS.
with the power I'm the court to restore the pos
session to the plaintiff as part of the Judgment.
sued individually as trespassers, set up their
authority as officers of the United states which
this soIrt held to be unlawful and therefore
g. IA third class. which has given rise to
more more contr1xersy Is Wnere the law has imposed
defined duty IL regard to specific matter not
affecting the general powers or functions Of
one or more individuals have distinct inter
est capable of enforcement byjudical process.
the remedy by mandamus. the duty to be per-
formed must be merely ministerial and must
involve no element of discretion to be exercised
by the officer. 1t has however been much in
sisted on that in this class of cases. where it
shall be- found necessary to enforce the rights
amandatory decree. or by injunction, compel
the performance of the appropriate duty or en-
sistent with that duty and with the plaintiffs
rights In the premises. Perhaps the strongest
assertion of this doctrine is found in the case Of
O0Ots o. Gray, III Wallace, 2O3 In that case,
the state of Texas having made grant of the
alternate sections of land along which a rail-
road should be located, and the railroad COM
pany having surveyed the land at its own ex-
pense and located its road through it, the cnm-
missioner of the state Land Office and the
Governor N of
rights of the company. selling and delivering
patents for the sections to which the company
Court enjoined them from so doing which was
afhrmed in this court. 1t is clear that
performance of one of the executive functions
the case goes to the verge of sound doctrine, if
NOT beyond it; and that the principle should be
extended no further. Nor there in that
case any affirmative relief granted by ordering
the Governor and Land Commissioner to per-
FORM any act towards perfecting the title of
the company.
1.-THE case OF the Board of Liquidation D. Nc
Como, 90 U s., 53l. is to the same effect. The
Board OF Liquidation was charged by the stat
ute OF Louisiana with certain duties in regard
70 issuing new bonds of the State, in place of
old ones, which might be surrendered for ex-
change by the holders of the latter. The
stitutional provision. McComb. the ownepof
some of the new bonds already issued filed his
Dill to restrain the Board from issuing that class
OF ponds In exchange for a class OF indebted
ness not included within the purview of the
statute, on the ground that his own bonds
court affirmed the decree of The Circuit Court
enjoining the Board from exceeding it's power
In taking up by the new issue class of State in
debtedness not within the provisions of the
law on the subject. In the opinion in that case
the language of Mr.. Justice Bradley tersely
thus expresses the rule and its limitations:
" 'The objections to proceeding against State
officers by mandamus or Injunction are first,
that 1t is in effect proceeding against the state
Itself; and, second, that 1t interferes with the
omc1ai discretion vested in the officers. 1t is
conceded that neither of these can be DONE
State. without its consent, cannot be sued as
an individual; and q court cannot substitute
It's own discretion for that of executive officers
IN matters belonging to the proper Jurisdiction
OF the latter. But 1T has been settled that
where plain official duty requiring no exer-
formance is refused. any person who will sus
tain personal injury by such refusal may have
mandamus to compel performance; and
when such duty Is threatened to be violated by
some positive official act, any person who will
sustain personal injury thereby. for which AIDE
Quate compensation cannot be had at law may
have an Injunction to prevent it,
IT Is believed that this is as far as this court
a mas gone In granting relief in this class Of
"On the other hand, in the cases of Louisiana
.. JesOet and Elliott o. WiUz. 10y United States
I'll, very ably argued and very fully consider
ed, the court declined to go any fur her.
The snort statement of The reason for its judg-
ment In those cases is that as the State could
not be sued or made party to such proceeding,
there was no Jurisdiction in the Circuit Court
Chancery, to take charge of the Treasury OF the
state and. Selling the hands of the Auditor
and Treasurer, to make distribution of the
funds found in the Treasury in the manner