OpenJurist

140 US 1 Pennoyer v. McConnaughy

140 U.S. 1

11 S.Ct. 699

35 L.Ed. 363

PENNOYER et al.
v.
McCONNAUGHY.

April 20, 1891.

[Statement of Case from pages 2-6 intentionally omitted]

Mr. Lewis L. McArthur and Mr. H. H. Northup for appellants.

[Argument of Counsel from pages 6-8 intentionally omitted]

C. A. Dolph and C. B. Bellinger, for appellee.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.

1

The contention of the complainant below was that the act of 1887, under which the defendants below assumed to act, in the matter of the cancellation of his certificates of sale, was in violation of section 10, art. 1, of the constitution of the United States, in that it impaired the obligation of the contract made between Owen and the state for the sale of the lands; that the defendants were therefore acting in the premises without authority of law; and that for those reasons it could not be asserted that the suit was against the state. The defendants, on the other hand, insisted that the aforesaid legislation was valid and constitutional; that the suit was, in effect, against the state; and that therefore the circuit court was forbidden to exercise jurisdiction in the matter by the eleventh amendment to the constitution. This appeal, therefore, involves the construction and application of two distinct provisions of the constitution which are set up, one against the other, by the parties to the controversy, in support of their respective contentions. The complainant below bases his claim for the relief prayed for upon that clause of section 10, art. 1, which provides that 'no state shall pass any law impairing the obligation of contracts;' while the defendants below, the appellees, rely upon the eleventh amendment to the constitution, which declares that 'the judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against any of the United States by citizens of another state, or by citizens or subjects of a foreign state.' The question, then, of jurisdiction is first presented for determination. Is this suit, in legal effect, one against a state, within the meaning of the eleventh amendment to the constitution? A very large number of cases involving a variety of questions arising under this amendment have been before this court for adjudication; and, as might naturally be expected, in view of the important interests and the wide-reaching political relations involved, the dissenting opinions have been numerous. Still, the general principles enunciated by these adjudications will, upon a review of the whole, be found to be such as the majority of the court and the dissentients are substantially agreed upon.

2

It is well settled that no action can be maintained in any federal court by the citizens of one of the states against a state, without its consent, even though the sole object of such suit be to bring the state within the operation of the constitutional provision which provides that 'no state shall pass any law impairing the obligation of contracts.' This immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the state within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a state, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the state itself. In the application of this latter principle, two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the state, as representing the state's action and liability, thus making it, though not a party to the record, the real party, againstwhi ch the judgment will so operate as to compel it to specifically perform its contracts. In re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 164; State v. Jumel, 107 U. S. 711, 2 Sup. Ct. Rep. 128; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 91; Cunningham v. Railroad Co., 109 U. S. 446, 3 Sup. Ct. Rep. 292, 609; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. Rep. 608. The other class is where a suit is brought against defendants who, claiming to act as officers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the state. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the state, or for compensation in damages, or, in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial, is not, within the meaning of the eleventh amendment, an action against the state. Osborn v. Bank, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Tomlinson v. Branch, 15 Wall. 460; Litchfield v. Webster Co., 101 U. S. 773; Allen v. Railroad Co., 114 U. S. 311, 5 Sup. Ct. Rep. 925, 962; Board v. McComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Rep. 903, 962. It is not our purpose to attempt a review of all, or even many, of these decisions, as to do so intelligently would unnecessarily protract this opinion, and, in this connection, would subserve no useful purpose. It will be sufficient, perhaps, to refer to some of those which this case most nearly resembles.

3

It is believed that the case before us is within the principles of the great and leading case of Osborn v. Bank, 9 Wheat. 738, the opinion in which was delivered by Chief Justice MARSHALL. That was a suit in equity, brought in the circuit court of the United States for the district of Ohio, by the president, directors, and company of the Bank of the United States, to restrain Ralph Osborn, auditor of the state of Ohio, from executing a law of that state which was in violation of and destructive to the rights and privileges conferred upon the complainants by the charter of the bank and by the constitution of the United States. One of the leading inquiries in the case was whether an injunction could be issued to restrain a person, who was a state officer, from performing an official act enjoined by the statute of the state. The question presented by that inquiry was discussed, in a masterly manner, on the assumption that the statute of the state was unconstitutional, and it was held that in such a case, grounds of equity interposition existing, injunction would lie. With regard to the objection that, if any case was made by the bill for the interference of a court of chancery, it was against the state of Ohio, and was therefore within the prohibition of the eleventh amendment, the court held that the exemption of the state from suability could not be pleaded by its officers when they were proceeded against for executing an unconstitutional act of the state. This question was discussed most thoroughly, in the light of the other provisions of the constitution relating to the jurisdiction of the federal courts, and the conclusion arrived at thus announced: 'It was proper, then, to make a decree against the defendants in the circuit court, if the law of the state of Ohio be repugnant to the constitution, or to a law of the United States made in pursuance thereof, so as to furnish no authority to those who took or to those who received the money for which this suit was instituted.' 9 Wheat. 859. The statute of Ohio, under which the defendant was acting, was then examined, and found to be unconstitutional. The case may then be said to have fully established the doctrine that an officer of a state may be enjoined from executing a statute of the state which is in confict with the constitution of the United States, when such execution would violate and destroy the rights and privileges of the complainant. The principle stated by Chief Justice MAR SHALL, in that case, that, 'in all cases where jurisdiction depends on the party, it is the party named in the record,' and that 'the eleventh amendment is limited to those suits in which the state is a party to the record,' has been qualified to a certain degree in some of the subsequent decisions of this court; and now it is the settled doctrine of this court that the question whether a suit is within the prohibition of the eleventh amendment is not always determined by reference to the nominal parties on the record, as the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit. New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176; In re Ayers, supra. But the general doctrine of Osborn v. Bank, that the circuit courts of the United States will restrain a state officer from executing an unconstitutional statute of the state, when to execute it would violate rights and privileges of the complainant which had been guarantied by the constitution, and would work irreparable damage and injury to him, has never been departed from. On the contrary, the principles of that case have been recognized and enforced in a very large number of cases, notably in those we have referred to as belonging to the second class of cases above mentioned.

4

In Davis v. Gray the state of Texas had granted to a railroad corporation of that state 16 alternate sections of land per mile along the line of the road which was thereafter to be located. The company surveyed the lands, and located its road through them. After all those things had been done, the commissioner of the state land-office and the governor of the state, acting under the authority of a statute of the state which had declared the lands forfeited to the state, were selling certain of the lands, and delivering patents for them to the purchasers. At the suit of the receiver of the road, the circuit court of the United States enjoined them from interfering with the rights of the road in the premises, and selling and conveying its lands; and that decree was affirmed by this court. Some of the expressions in the opinion in that case were criticised in the subsequent case of U. S. v. Lee, 106 U. S. 198, 244, 1 Sup. Ct. Rep. 240, and also in In re Ayers, 123 U. S. 443, 487, 488, 8 Sup. Ct. Rep. 164, where the objectionable expressions were examined and held to have been mere dicta. It has not been overruled, however, but, on the contrary, it has been cited with approval and relied upon as authority in a number of subsequent cases; and the underlying principles of it are regarded as sound.

5

In Board v. McComb, 92 U. S. 531, 541, the same principle was applied. In that case an injunction was issued by the circuit court of the United States, at the suit of the holder of certain bonds of the state of Louisiana, to restrain the board of liquidation of the state, composed of the governor and certain other state officers, from issuing certain of the same kind of bonds to liquidate a debt claimed to be due from the state to the Louisiana Levee Company, on the ground that such use would impair the securities of the complainant, and would thus be violative of the contract he had with the state; and that decree was affirmed by this court on appeal. In delivering the opinion of the court, Mr. Justice BRADLEY said: 'The objections to proceeding against state officers by mandamus or injunction are: First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belongin to the proper jurisdiction of the latter. But it has been well settled that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its 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 adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void,'—citing Osborn v. Bank, and Davis v. Gray.

6

Poindexter v. Greenhow has been adverted to. That was an action in detinue against the treasurer of the city of Richmond, Va., for the recovery of an office desk which he had seized for delinquent taxes, in payment of which the plaintiff had duly tendered coupons cut from bonds issued by the state of Virginia, under the funding act of March 30, 1871, and made by that act receivable for all taxes due the state. The defendant, under color of office as tax collector, and acting in the enforcement of a statute of the state, passed in 1882, which forbade the receipt of the coupons for taxes, refused to receive such tender, and made the seizure complained of. It was held by this court that the act of the general assembly pased in 1882 was uncontitutional and void, because it was an impairment of the contract entered into between the state and its bondholders by the act of 1871; that, being unconstitutional, it afforded no protection to the defendant; that the action was properly maintainable against him as a wrongdoer; and that it was not an action against the state, in the sense of the eleventh amendment. The whole question was descussed most thoroughly be Mr. Justice MATTHEWS, both on principle and authority, and the following from the opinion of the court, delivered by Mr. Justice MILLER, in Cunningham v. Railroad Co., 109 U. S. 446, 452, 3 Sup. Ct. Rep. 292, 609, quoted with approval: 'Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is 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 asserts authority as such officer. To make out his defense, he must show that his authority was sufficient in law to protect him.'

7

Allen v. Railroad Co., 114 U. S. 311, 5 Sup. Ct. Rep. 925, 962, decided at the same time as Poindexter v. Greenhow, and on the authority of that case, was, in all essential features, similar to the case under consideration. In discussing the remedy by injunction against officers of a state in such cases, Mr. Justice MATTHEWS, delivering the opinion of court, relied largely upon Osborn v. Bank, Board v. McComb, Davis v. Gray, and many other cases; and the language above quoted from Board v. McComb was quoted with approval.

8

The case of McGahey v. Virginia, 135 U. S. 662, 684, 10 Sup. Ct. Rep. 972, was a suit instituted in the circuit court of Alexandria, Va., in the name of the commonwealth against the defendant, under the act of May 12, 1887, for the recovery of taxes due from him, in payment of which coupons cut from the bonds of the state had been tendered and not accepted. Judgment for the state was rendered by the circuit court, which, on appeal, was affirmed by the supreme court of the state. Brought before this court on a writ of error, the judgment of the state court was reversed. This case, with seven others, reported under this title, grew out of the legislation of the state rgar ding coupons of the same character as those involved in the Virginia coupon cases. Mr. Justice BRADLEY, delivering the unanimous opinion of the court, after a full and exhaustive review and analysis of the decisions in those cases and others like them, presented a summary of the propositions established by those decisions which cannot be well abridged, as follows: 'First. That the provisions of the act of 1871 constitute a contract between the state of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute. Second. That the various acts of the general asembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the state, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect. Third. That no proceedings can be instituted by any holder of said bonds or coupons against the commonwealth of Virginia, either directly by suit against the commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the state. Fourth. That any lawful holder of the tax-receivable coupons of the state, issued under the act of 1871 or the subsequent act of 1879 who tenders such coupons in payment of taxes, debts, dues, and demands due from him to the state, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vindicate such right in all lawful modes of redress,—by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with immediate injury, or by a defense to a suit brought against him for his taxes or the other claims standing against him.'

9

The dividing line between the cases to which we have referred and the class of cases in which it has been held that the state is a party defendant, and therefore not suable, by virtue of the inhibition contained in the eleventh amendment to the constitution, was adverted to in Cunningham v. Railroad Co., where it was said, referring to the case of Davis v. Gray, supra: 'Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company.' 109 U. S. 453, 3 Sup. Ct. Rep. 298. Thus holding, by implication, at least, that affirmative relief would not be granted against a state officer, by ordering him to do and perform acts forbidden by the law of this state, even though such law might be unconstitutional. The same distinction was pointed out in Hagood v. Southern, which was held to be, in effect, a suit against the state, and it was said: 'A broad line of demarkation separates from such cases as the present, in which the decrees require, by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the state in its political capacity, those in which actions at law or suits in equity are maintained against defendants who, while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs, under color of authority unconstitutional and void.' 117 U. S. 52, 70, 6 Sup. Ct. Rep. 616.

10

The cases in which suits against officers of a state have been considered as against the state itself, and therefore within the inhibition of the eleventh amendment to the constitution, and those in which such suits were considered to be against state officers, as individuals, were elaborately reviewed and distinguished in the recent case of In re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 164. That case came before us on applicaion for habeas corpus by the attorney general of Virginia, the auditor of the state, and the commonwealth's attorney for Loudoun county, in that state, who were in the custody of the United States marshal for the eastern district of Virginia for contempt of court in disobeying a restraining order of the circuit court of the United States for that district commanding them not to institute and prosecute certain suits in the name of the state of Virginia, required to be brought by the statutes of the state. The suit in which the restraining order was issued was nominally against certain officers of the state, but this court held that it was, in effect, a suit against the state itself, and therefore in violation of the eleventh amendment to the constitution; and that, such being true, the acts and proceedings of the circuit court in that suit were null and void for all purposes; and the prisoners were discharged. In delivering the opinion of the court, Mr. Justice MATTHEWS, referring to the class of cases in which it had been adjudged that the suit was against state officers in their private capacity, and not against the state, said: 'The vital principle in all such cases is that the defendants, though professing to act as officers of the state, are threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable. * * * This feature will be found, on an examination, to characterize every case where persons have been made defendants for acts done or threatened by them as officers of the government, either of a state or of the United States, where the objection has been interposed that the state was the real defendant, and has been overruled.' 123 U. S. 500, 501, 8 Sup. Ct. Rep. 180, 181.

11

In Hans v. Louisiana, 134 U. S. 1, 20, 21, 10 Sup. Ct. Rep. 504, the general rule on this subject was concisely stated by Mr. Justice BRADLEY in the following terms: 'To avoid misapprehension, it may be proper to add that although the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the state consents to be sued, or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by a state, they cannot wantonly be invaded. Whilst the state cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contract may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.'

12

Little remains to be done or said by us in this connection, except to apply the principles announced in the cases we have attempted to review to the facts in the case before us, as set forth in our introductory statement. In this connection, it must be borne in mind that this suit is not nominally against the governor, secretary of state, and treasurer as such officers, but against them collectively, as the board of land commissioners. It must also be observed that the plaintiff is not seeking any affirmative relief against the state or any of its officers. He is not asking that the state be compelled to issue patents to him for the land he claims to have purchased, nor is he seeking to compel the defendants to do and perform any acts in connection with the subject-matter of the controversy requisite to complete his title. All that he asks is that the defendants may be restrained and enjoined from doing certain acts which he alleges are violative of his contract made with the state when he purchased his lands. He merely asks that an injunction may issue against them to restrain them from acting under a statute of the state alleged to be unconstitutional, which acts will be destructive of his rights and privileges, and will work irreparable damage and mischief to his property rights. The case cannot be distinguished, in principle, from Osborn v. Bank, Davis v. Gray, Board v. McComb, and Allen v. Railroad Co., cited above; and the reasoning in those cases applies with equal force in this. The essential difference between these cases and the case of In re Ayers, upon which the appellants mainly rely, was pointed out in the lastnamed case, and need not be adverted to further in this connection. We think it clearly demonstrated from the authorities above referred to that the relief prayed can be granted, if, as is contended for, the legislation of the state under which the defendants are assuming to act is unconstitutional, in that it operates to impair the obligation of a contract. And this leads to a consideration of that legislation with respect to that contention.

13

The position of the complainant below is that, as the swamp lands of the state were for sale upon the terms and conditions mentioned in the act of 1870, a valid contract, binding upon both parties to it, was completed between the state and the applicant the moment a legal application to purchase was filed with the proper officer of the state, and accepted by him. This was the view taken by the circuit court. We quote from the opinion of Judge DEADY, as follows: 'The transaction, as set forth in the statute, has all the elements of a contract of sale. The statute is a formal standing offer by the state of these lands for sale on the terms therein mentioned, and an invitation to all qualified citizens of the United States to become purchasers thereof by filing an application for some specific tract thereof with the board, and complying with the subsequent conditions of payment and reclamation. The application is a written acceptance of the offer of the state, in relation to the land described therein, and, on the filing of the same, the minds of the seller and the purchaser the state and the applicant—came together on the proposition, and thenceforth there was an agreement between them for the sale and purchase of that parcel of land, binding on each of them until released therefrom by some substantial default of the other, not overlooked or excused.' 43 Fed. Rep. 202. We think this view very forcible, and it would be conclusive to our minds but for the consideration which suggests itself that the bare application itself, unaccompanied by the payment of any consideration, partakes somewhat of the nature of a pre-emption claim under the laws of the United States, with reference to which it has been held that the occupancy and improvement of the land by the settler, and the filing of the declaratory statement of such fact, confers no vested right upon him, as against the government of the United States, until all the preliminary acts prescribed by law, including the payment of the price, are complied with. Yosemite Valley Case, 15 Wall. 77; Frisbie v. Whitney, 9 Wall. 187. But we do not deem it necessary to determine whether the court was correct in that view of the case; for, in our opinion, another element of the case is of sufficient importance to control its disposition. Even if no vested right accrued to the applicant immediately upon the filing of his application, and its acceptance by the authorities of the state, it is conceded on all hands that he acquired such a right upon the payment of the 20 per centum of the purchase price of the lands embraced in his application, if such payment was made in accordance with law. The defendants contend that the payments in this case were not made in accordance with law, because they were not made until after the act of October 18, 1878, went into effect, which act not only expressly repealed the act of 1870, under which the sale to Owen was made, but, in its ninth section, provided as follows: 'All applications for the purchase of swamp and overflowed lands, made previous to the passuge of this act, which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the paymentof the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.' The argument is that the applicant had not fully complied with the law of 1870, 'including the payment of the twenty per centum of the purchase price' of the lands embraced in his application, previous to the passage of this act, and that therefore, under the act, his application became null and void. On the other hand, it is insisted with equal earnestness that the applicant had done all in his power to complete his application prior to the act of 1878, and was only prevented from doing so, and paying the first installment of the purchase money, by reason of the delay on the part of the officers of the state in performing the duties imposed upon them by the act of 1870; that the 90 days after the publication of notice of the completion, approval, and filing of the maps and description of lands, provided for by the second section of the act of 1870, within which, under the third section of the act, the applicant was required to pay the first installment of the purchase money, did not expire until long after the act of 1878 went into effect; that within said 90 days the applicant paid, and the commissioner received, the 20 per centum of the purchase price of the land embraced in his application; and that by reason of the premises, and for the further reason that until now the act of 1878 had never been considered as nullifying applications such as the one under consideration, the application of Owen should be held good and valid, and operative to vest in the applicant an indefeasible right and title to the lands in dispute. There is some force in both of these contentions; but it seems to be conceded that, as stated in the opinion of Judge DEADY, from the passage of the act of 1878 until the enactment of the statute of 1887, the construction put upon the former act was in harmony with that claimed by the plaintiff in this case. The act does not appear to have ever received a construction at the hands of the supreme court of the state; but the board of land commissioners, whose duty it was to administer the swamp-land grant on behalf of the state, always followed that construction. A copy of an opinion of the board, delivered a few years after the passage of the act of 1878, on a contest involving other lands similarly circumstanced, between Owen and a party claiming that Owen's right had become forfeited, under the act of 1878, for his failure to pay the 20 per centum of the purchase price of the lands prior to the passage of that act, is set forth in the brief of counsel for appellee. That opinion is admitted by counsel for appellants to have been delivered by the board, and the copy is not controverted. It is as follows: 'The act of 1878 does not, however, attempt to interfere with applicants who had complied with the law of 1870. Section 9 of that act provides that 'all applications for the purchase of swamp land, made previous to the passage of this act, [act of 1878,] which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.' A strict construction of this language might have the effect to forfeit all applications where the twenty per centum had not been paid, although the applicant had fully complied with the law as far as the circumstances would admit of a compliance. We have had occasion to consider that question frequently, and have concluded that it ought not to receive that construction. The legislature may have had the power to suspend every application of that character, and declare it a nullity, but we do not think it so intended; that it only intended to declare void those applications where the nonpayment of the twenty per centum had been a violation of thecon dition contained in the act of October 26, 1870. In many cases the applicant to purchase under the latter act was not in default when it was repealed, although he had not paid the twenty per centum [of the] purchase price, as the circumstances had not arisen or the time elapsed requiring its payment.' In Corpe v. Brooks, 8 Or. 222, 223, 224, the powers and duties of the board of commissioners were defined by the supreme court of the state in the following language: 'This board was created by the state constitution, and by it invested with the power to dispose of these state lands, and its powers and duties are such as are provided by law. It is composed of the governor, secretary of state, and state treasurer, and is a part of the administrative department of the government, and exercises its powers independent of the judiciary department, and its decisions are not subject to be reversed by the court. It occupies in this state the same relation to the state judiciary as the land department of the United States does to the United States courts, and their decisions have not been the subject of review by the United States courts.'

14

The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so firmly imbedded in our jurisprudence that no authorities need be cited to support it. On the faith of a construction thus adopted, rights of property grow up which ought not to be ruthlessly swept aside, unless some great public measure, benefit, or right, is involved, or unless the construction itself is manifestly incorrect. We do not think the construction of the act of 1878 by the board of commissioners is subject to either of these objections. The board evidently went upon the theory that the applicant to purchase land from the state, under the act of 1870, acquired by his application some sort of a property right, at least, that was not defeated by a repeal of the statute under which he applied; that, if his right was not defeated by the repeal of the statute, he certainly ought to be allowed to go on and complete it according to the terms of the act, even though it had been repealed in the mean time; and that the ninth section of the act of 1878, therefore, did not nullify applications for the purchase of land from the state when the 20 per centum of the purchase price had not been paid prior to its going into effect. It is not straining that section to rule, as did the board of land commissioners, that 'it only intended to declare void those applications where the non-payment of the twenty per centum had been a violation of the condition contained in the act of October 26, 1870.' That section declares, among other things, that all applications for the purchase of swamp lands, made previous to the passage of that act, in which the applicants had not fully complied with all the terms and requirements of the law of 1870, including the payment of the 20 per centum of the purchase price, should be declared void, etc. We think there were strong reasons for the view taken by the board of land commissioners that the phrase, 'including the payment of the twenty per centum of the purchase price,' had reference to a condition prescribed by the act of 1870; and that what the legislature intended thereby was that all applications should be void in which the applicant had not paid the 20 per centum of the price, in accordance with the terms of the act of 1870. That is to say, one of the terms or conditions of the act of 1870, prescribed by its third section, was that the applicant should pay the 20 per centum of the purchase price within a specified time, viz., 90 days after the notice of the completion, approval, and filing of the map and description of the land; and, if he had not complied with that condition, his application was nullified by the ninth section of the act of 1878. The state had the riht to contract for the sale of its swamp lands, and in the enforcement of its contract it had the right to insist upon a full compliance with the terms of the contract on the part of the applicant. It had the right to make the time of payment of the essence of the contract, and we are not prepared to say it did not do so. This reasoning leads logically to the conclusion that the ninth section of the act of 1878 was not intended to render void applications to purchase in which every condition of the act of 1870 had been complied with so far as lay in the power of the applicant, and where the failure to make the payment specified was caused solely be the failure of the other contracting party. We therefore accept the construction of the act of 1878 adopted by the board of land commissioners, and acted upon for so long a period of time in the administration of the swamp-land grant, and hold that the application of Owen, in this case, was not rendered void by the act of 1878; and that, by the subsequent payment of the first installment of the purchase price of the land embraced in his application, he acquired a vested right to those lands. In other words, by such payment, this contract with the state became so far executed as to be embraced in the class of contracts protected by section 10 of article 1 of the constitution of the United States, which declares that 'no state shall pass any law impairing the obligation of contracts.' Does the statute of 1887, above quoted, impair such a contract? We think it does, beyond all doubt. It, in so many words, authorizes the board of commissioners to cancel the certificates of sale where the 20 per centum of the purchase price of the land had not been paid prior to January 17, 1879, and treats the lands embraced in such certificates as reverted to the state. That legislation surely impaired the obligation of the contract Owen had with the state; for its effect was to destroy valuable property, rights, and privileges belonging to him. It was therefore violative of the constitution of the United States. Article 1, § 10. That statute, being the one under which the appellants assumed to act, affords them no security or immunity for the acts complained of; and it cannot be said, therefore, that this is a suit against the state, within the meaning of the eleventh amendment. Decree affirmed.