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state court. Upon this subject I am satisfied to abide by the reasoning of the district judge in his opinion herein upon the former hearing, fortified and supported as it is by the ruling of the supreme court commission and the supreme court of Uissouri, in the precisely ana.logons case of Patterson v. Stephenson, April term, 1883. The motion for rehearing is accordingly overruled The practice is not for the circuit court to hear motions in cases determined by the district jud;;e when sitting in the circuit court, except at the. request of the di::;trict judge, which was made in this case.
BALTDfonE & O. R. Co. .JiTCUit COUTt,
t'. ALLEN,
Auditor, etc., and others· ]fay I!;, 1583.)
W. D. ViT[jinirt.
I!:NJOINING COI,I,ECTION 01;' TAXES-FoUEION ConrouATION-JuursnrCTION OF Crncuu' CouU'r-TEi\DER OF CouPO:t\s OF HONDS OF STATE OF VU\GlNIA-ACTS OF MAUCH 30, 1871; JA:t\UARY 14, 1582, AND JA:t\UAI:Y 2G, IS82.
On the thirtieth of March, 1871, the state of Virginia passed a funding act, authorizing coupons, cut from her consolidated Londs, to be reecivable in payment of all dues to the state. On the i'ourteenth of Jauuary, IS82, she passed au act reciting that many spurious coupons ,vcre in existence, and rcquiring the validity of all coupons offered in payment of puillie ducs to be te,tcd by a specified proceeding in court. This latter act was pronounced by the United States supreme court at its last term in Antoni v. GrunllO!o, 2 Sup. Ct. Hep, 91, to Le constitutional and an ample rcmedy for the cOl.pon-holder. On the twenty-sixth of January, ES2, Virginia passed another act, providing that in all compulsory collections of the collecting ofliccr should rcceive only gold, silver, or national currency for the tnxes, but also providing a method by which the tax-payer might in CO'jpons to the state trcnsurer, after the validity of the eoupons had been tested by a court proceeding defined, and thereupon receive [Jaek from the treasurer the amount of money wlllch had been collected from him, the tax-colleetor. This last act IS identical, in principle and provisions, with the aet of the state of Tennes,ee; which was reviewed by the United States supreme court in Tennessee 'V, ,"nmi, 96 U. S. t.i9, and pronounced constitutional, and to be an ample remedy for the coupon-holder. The Baltimore &; Ohio Hailroad Company, a c(,rporation of :Maryland, operating certain roads in Virginia, disreg-arding the acts of January H, 18,"2, and of January 26, IbS2, tendered the amount of taxes due to the state of Yirginia in coupons of the bonds of the state, issued undcr the act of .:II arch 3D, IS71, "reeei,'able at and after maturity for all taxes amI debts, dues and demands. due the state." which the authorities refu.';l'd to reccive; and asse,sseu 30 per cent,' in audition after 60 days, and seized the 'property of the railroad company, tbreatened to sell the same for the amount of taxes and'penalty, whereupon the comp:1ny applied to the circuit court of the United States for an injunction. Held, that the coupons tendered must Le received in payment of the taxes; that the penalty was improperly assessed; and tbat the railroad company were entitled to an injunction to restrain tIle state authori· ities from selling their property. ' . HUGHES, J., dissents.
In Equity. On motion for a preliminrtry injnncfion. The railroad which reaches from the bonIer of Virginia beyond
172
FEDERAL RErORTER.
Winchester to Staunton is owned by fonr several companies, but H is operated by the Baltimore & Ohio Railroad Company, the complainant in this canse. The part between the state border and Winchester is owned by the Winchester & Potomac Company; that between Winchester and Strasburg is owned by the Winchester &; Strasburg Company; and that between Strasburg and Harrisonburg, by the Virgmia Midland Company. These three roads are under lease to the complainant. 'rhe road between Harrisonburg and Staunton is owned by the Valley Railroad Company, and is o['Jrated by the complainant. The fuur roads are operated practically 'as one line by the c'Jmplninant; none but its own locomotives, cars, a11d trains being used upon them, and the complainant having the excluof HIe running of the trains in all tlle business which is sive 'rhese roads are all leased by the complainant except the Valley Railroa'd, which seems to have a cuntract by which it has TeRerved the privilege of employing its own depot agents to collect freights, and its own conn.uctors on pa'lsenger trains to colleet tickets and fares; hut the conductors are employes of the complainant for performing the sarr.e duties over the entire line. All four of the roads have ns It common treasurer, 'V. H. Ijams, who resides in Baltimore, and has his oHice in Baltimore. Theie railro:tds were assessed for taxes in December, 1882, by the board of public works of Virginia, in pursuanee of section 20 of C!lltpter 118 of the Acts of 1881-2, p. 506. That section, after r.eqniring certflin annual reports from railro:1d companies, provides as follows in to railroads: .. Upon tl18 re :eipt of every snch report, it sllal! be the duty of the auditor of pUlllie accounts to lay the sallie LJefortJ tile uoanl of public works, who shall * * * proceed to and asspss the valne of tHe r,_'pOl'lcd. upon the LJpst and lUost reliable information that can be procured, and to this eml shall UP, enlllllwen'u," etc. "A. certilieJ copy of the assessment, wllea matl1l, sllall he illlmediatel,',' forwarded uy the secretary of the Loard to \.l1e pn'sident or other proper oiilcer of every railroad * « ':' company so assesse,l, whose dnty iI, sh:111 Le to pay into the treasnryof the state, withi,Jl sixty days afler the rt'cpipt thereof, the tax which may ue imposl'll thereon by law. A ('ompany failing to * * pay the tax assesserl tl!Xln its property he i!11:nelliately assl'sserl. unf1el' tohe diredion of the nll<litu.l· of pnulic aceounts, by allY per,;oll appointed by him for the plu'pose, rating the value of their rpa1 estate and rolling stock at S20.000 p:>r mile, nllfl a tax shall ai ollce lie le"ieJ 011 such value at the annuall1l.te of fort)' cents OIl tllt.J hundred dollars."
*
Tbe amonnt of the assessment marle under the first provision of this law was based on a valuat.ion of $15,1)00 a mile, and was, for thrtle lea'led roads, $4,818.12, and for the Valley road $1,503.04:, making a total of $6,.411.16. Notice was given, during the first week in DccemlJOr, to W. H. Ijll.ms, treasurer, in Baltimure, of this assessment. Th,is notiee was repeated during the week which commenced on tho f.hecucb uf JanlUl.ry, 18ti3. 'l'he taxes so notified to lJe due
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were not paid within 60 days after the notices were sent. On this failure of payment the auditor of public accounts again assessed these roads, in accordance with the secan I provision of the law above cited, "rating thtJir real estate and rolling stock at $20,000 per mile." This second assessment, of course, added 33t per cent. to the former one. In pursuance of the same provision of the law, John E. Hamilton, treasurer of the county of Augusta, "appointed by the auditor for tile purpose," 'proceeded to make a levy for the several amonnts of tax thus assessed by the au1.itor on the following property of the complainant, viz.: On 22 freiglit cars at Winchester; on 1 engine and 15 freight cars at Harrisonburg; and on 24 freight cars at Staunton. He also le\'ied on an iron safe and some furnitme of the Valley company at Staunton, which was all the personalty of tlut company which oould be found. The levies at Stauntou and Winchester were made on the twenty-tl.ird of March, and that at Harrisonburg on the twenty-fourt h of March last. On the sixteenth of 1883, agents of the bad appeared at Richmond and tendered tax-receivable coupons of interalleged to have been cut from bonds issued by the state of Virginia, in payment of the se\'eral amounts of taxes due under the first assessment that has bdcn desci·ibed. 'l'he !'ender was malle first to the cashier of a b:mk hfHing depos,ts of the state under a warrant of th:3 treasurer authorizing the blnk to receive the amounts of mOlley due for taxes, and was rdfused. It was then made to the treasurer aud the auditor of the state successively, who each refu-18;l the coupons. 'rhe agents did lIot tender the taxes in gold, silver, Ullitecl States treasury notes, or national bank notes, which are required to be paid in the discharge of ta.."X:es by the act of January 26, 1882, (chapter 41, § 1, p. 37, Acts 1881-2,) nor did they deliver, or offer to deliver, the coupons for verification, as required by the act of J anuary 14, 1882, (chapter 7, p. 10, of the same volume.) Complainant now brings this bill into this court, in which S. Drown Allen, as l?ublic accounts of Virginia; David R. Heveley, as treasurer of VIr1?1I11a; anll John E. Hamilton, as treasnrer, residmg at Staunton, who IS treasurer of the county of Augt'sta, are made tIle parties defendant. The. bill recites certain of the general assembly of Virginia that of such as tho3e teudered by complamant, shall be receIvable In discharge of all taxes and dues to the state; avers the tenJer of coupons made on the sixteenth day of Uarch, which are brough.t into this court j ami other thmgs of th.e seIzure of cars and an engine by Ha.n. the of Irreparahle Injury sustained; of cloud upon htle !rom Illegal levy; r:f multiplicity of suits j of obstructIOn III the performance of ItS dutie:; to the public as a COillman carrier; and of the penalty inflicted upon it by the second assessment. Tile bill prays tilat the said Hamilton may btl forever enjoined
174
;tEDEUAL UEI'OUTEn
from further proceeding under. the levies he has made; that the court will decree tbat the taxes first assessed were, by the tender of the coupons and. by the bringing t.hem now into this court, paid off and discharged; and that the second assessment and the levies made under it were null and void. On the filing of the bill a motion was made by complainant for a preliminl1ry order enjoining further proceedings under the second assessment, and enjoining the sale of the property levied upon. It is that motion which the court has now to deal with. Hugh TV. Sheffey, A. R. Pendleton, and TV. B. Cumpton, for complainant. 1"ra.n/; S. Blair, Att,y. Gen., fOl' defendants. BoxD, J. The facts in this case, as shown by the affidavits and proofs filed, are few. The complainant is the Baltimore & Ohio Railroad Company, a corporation of Maryland, which operates certain roads in Virginia. 'r'hese roads were duly assessed for taxes by the state officers to the amount of $o,H 1, for which sum the complainant tendered in payment coupons of the bonds of the state of Virginia issued under the act of March ;)0, 1871, "receivable at and after maturity for all taxes and debts, dues and demands, due the state." Not rega1"ding the tender as a legal settlement of the debt, the defencbnts, as they were required to do by tile state law providmg for the taxation of railroads, after HO days' default, assessed the companies 30 per cent. in addition to their real tax as a penalty for their default. The defendant Hamilton, as tax collector, bas seized the property of the complainant, and threatens to sell it for the amount of the taxes and the penalty. The bill asks that he may be enjoined from so rloing; that the tender of the canpons may be regarded as payment or extinguishment of the debt; and that tile company may not be subjected to a penalty for ,loing what the act of March 30, 1871, contracted witb the holder of such coupons he might do. That the coupons mnst be received for public taxes, when tendered, the supreme court of the United States has, at its last term, empllatically decided. Antuni Y. GreenllUu;, 2 Sup. Ct. Dep. 91. The language of the COlIrt is: "The right of the coupon-holder is to han; his coupon receiyed for taxes whm) offereu." The fact here is that the complainant tendered coupons, and that they were rejected and the tax increased because coupons, and not money, were so offered. It is clear, then, that a right of the coupon-holder has been denied, according to the interpretation of the act of 30, 1871, by the supnsme court. What remedy has he? . In the case of Alltoni v. Greenhaw l/lnndal1ius was sought as tbe remedy, buttbe fm'ms of proceelling in that in Yirginia were not complied with, for the reason that the complainant alleged: they were unconstIi:utional because they impaired the obligation of tbe contract. But the snpreme court decideclthat tbe writ of mandamus now existing in Yirginia dicl not cliffei' :oomnch from the xcrnedy existing ,,-hen
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the coupons were issued as to impair the obligation of the contract. It expressly decided, as we have seen above, that the right of the coupon-holder was to have them received when offered; but it also decided that if he sought by mandamus to compel such receipt, he must follow Virginia practice in obtaining that remedy. 'fhe allegation or claim of this complainant is that it owes no taxes; that the tender of the amount in conpons has paid or extingnished the debt. It does not ask the court to compel the tax-collector to do any act he refuses to do, lJUt to stop him from doing an unlawful thing, namely, from taldng property for taxes when no-ne are due, and from imposing a penalty wbere there is no de1ault; and, surely, although the writ of mandamus is altered so as to be useless for the purposes of his case, and the writ of replevin is wholly abolished in Virginia, the supreme court has not decided that the complainant has no remedy whatever. Had such been its decision it would have declared that the words "was receivable when offereu" meant or read, "was receivable after they had been redt:ced to judgment;" for that is the only form under which, by the writ of mandamus, the receipt of coupons can be compelled in Virginia. The complainant alleges that a large part of its rolling stock on the taxed roads in Virginia is in custody; that it canllot, while suc'h is the case, fulfill its transportation contracts, the non-p8r£ormance of 'Thich will subject it to numberless suits for breach of such contracts, tnd to the liability of large damages. In general the cCluts of equity are slow to restrain the collection 6f taxes. They will not do so because the tax is alleged to be void or illegal, (92 U. S. 515;) belt where there will be irreparable damage, as is plain in this case, and wllere all taxes have been paid by the tender of coupons receivable for taxes and the complainant has been subjected to a larger assessment by reason of its offer of taxpaying coupons rather than money,-which offer the supreme court has decided it was its right to make,-I think an injunction ought to issue. This is not alleged to be a void and ilIeg-'l1 tax; it is asserted to be a paid one, anu paid in the ,,-ay complainant had a right to pay it. The bill does not seek a remedy under any of the methods of practice provided by Virginia. It appeals to the equitable jurisdiction of the United States courts. The complainant is a non-resident of this state, asserting a right which the :mpl('wc court, in Antani v. as I understand it, decideS that it ililS, and a failure to enforce wInch will cause it irreparable damage. The complainant has no_ remedv at law. The writ of mandrell/US is of no a \-ai1 to It; It has paid its debt once and would have to pay it again to get that rem· edy; it cannot get its gouds back from the purchaser by replevin, for there is no sucll action in Yirn-inia; it cannot sue the tax-collector for trespass, for since the institution of the suit of Antoni v: Guen· haze this state has by law forbiclden it to do so. Altogether, It scemE
FEDERAL REPORTER.
to me the complainant would be remediless and its "right" a delusion, did not a court of equity listen to it. 'I.'he argument of the attorney general that this action is not within the jurisdiction of this court, because it is, in fact, a suit against the state, which does not permit itself to be sued, does not seem to me to be sound. From tile case of 9 Wheat., Bank v. Osborn, down to The A 1'lillgtan Case, 1 Sup. Ct. Rep. 240, recently decided, this form of action has been sustained by the supreme court in proper cases. You may not sue the state unless she conbonts; and if she be an indispensable party not consenting, you can maintain no action at all. But she is not a necessary party, and the complainant hBre can ,prevent his anticipated wrong and irreparable damage, by restraining the party who is about to commit it, without joining the state. Litchfield v. Co. Hamilton, 101 U. S. 781, note; Belknap v. Belliwl]), 2 Johns. Ch. 4G3. Nor does the fuct that the state has pl'ovided a remedy for the complainant deprive him of any other that exists. The complainant is a non-resident of Virginia. His citizenship entitles him to apply to the United States co:.uts for the exercise of their equitable jurisdiction in a proper case. That equitable jurisdiction was not derived frorn, the states, but from the constitution of the United States, and remains the same, no ma,tter legal remedies or ¥orms wllttt laws are paslied by tlle states of procedure. This is the proper forum of tbe non-resident citizen, and he is not deprived of his rights in it by the passage of auy act by the legislature of Virginia respecting suits at law against the taxcollectors of the state. We have here a non-resident citizen. He seeks equitable relief against a tax-collector who is about to do an act which, if this prima .facie case maJe in the bill can be taineJ, will do it irreparable damage, in violation 0' che constitution of the United States. This jurisdiction has been exercised many times by the United States courts in like cases, and, in my judgment, the prayer of the bill sllOuld be grantp.d and prdiminary injunction issued as prayed, and it will be so oL·tlered. My brother, the district j lldge, does not concur, and files a separate opinion. HUGHES, J., This is a snit ngainst the state of Yirginin, brought in a forum in which she has not consented to be sued in the manner chosen uy this complainant. A suit against the pub'.ic officers of a state, as soch, seeking to control the funds of the state in their CLlStody, or to "compel them to do acts which constitute a performance of its contract by the state," is a suit against the state itself. It it3 useless to cite authorities on this point. Suffice it to refer to the crises of Louisiana v. ,fulIlcl, 2 Sup. Ct. Rep. 128; Elliott v. Wiltz, Id. 12S; and Antoni v. Greenhaw, ld. 91, decided by the United States supreme court at the term just ended. This suit is brought, therefore, in appartJnt 'Violation of the eleventh amendment of the national can-
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stitl1tion, which provides that "the judicial power of the United States shan not btl construed to extend to auy suit III or equity commenced or prosecuted against one of the United States by citizens of another state." It is true that the gravaman.of this suit is the allegation that the state, by the action of her officers, the defendants, and by the laws under which they acted, has violated that provision of the national constitution (article 1, § 10, cl. I) which declares that "no state shan pass any law impairing the obligation of contracts." But chis provision was part of the original constitution, (article 3, § 2, c1. 1,) wbieh declared that "the iudicial power of the United States should extend to controversies between a state and citizens of another state;" a clause that was held, in Chisholm v. Georgia, 2 Dall. 419, to empower the citizen of another state to sue a state of the Union withau tihl consent in a federal court. It was to correct this evil that the eleventh amendment of the national constitution was adopted, and it is, or ought to be, obvious law that unless a state grants the right to be thus sued the right has ceased to exist; and that, if she grant.R it, the right can only be exercised in the manner in respect to which it shall have been granted. The eleventh amendment gives the state entire control of the remedy, so far as it concerns a federal court, which it may grant or withhold. at its sovereign pleasure, and this power over the remedy being granted hy the eleventh amendment, exists in full force; the clause of the original constitution, forbidding the impairment of contracts, to the contrary notwithstanding. The state of Virginia has not granted the right to be sued in the federa.l courts upon her contracts, except as to a remedy at law to be mentionel in the sequel; and therefore this court would seem to have no jurisdiction of the present cause, which is a suit in equity. It is true that the supreme court of the States, in The Arlinyton Cllse, cited by complainant's counsel,-U. S. v. Lee, 1tJ6 U. S. 196, [S. C. 1 Snp. Ct. Rep. 240,] -affirming this court in S. C. 3 Hughes, 37, held that the United States might be sued in the persons of 1ts officers, under circumstances which the court was careful to define. But in explanation of this ruling two may be said, to·wit: Fil'st, the eleventh amendment does not forbid a suit against the United States; and, second, the national constitution pro,ides, in amendment fifth, th:1t "no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for puhlic use without just compensation." The immunity of the United States from suit is that which inheres in sovereign power, aa shown with such transcendent ability by Lord SO)IERS in The Blinkers' Case, 5 Mod. 29-62. This power would have been absolute, except for tllis controlling and qualifying provision of the fifth amendment. In the cas A 01 the U. S. v. Lee prope ty had been taken without just compensation, and the immunity of the Unitl'd S.ates froll suit bad, of necessity, to be qualiv.17,no.3-12
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FEDERAL
fied in pursuance of this express inhibition of the constitution as amended; and so the suit of the dispossessed owner of Arlington was en tertained. But neither this provision of the national constitution, nor this inher ;nt attribute of sovereignty, applies in the case at bar. The im" munity of states from suit in the federal courts is an express constitutional canon; and the sale of private property for public taxes is not an appropriation of property without just compensation, or with. out due process of law. Whether, therefore, as to such appropriations or as to contracts, it is plain that the states have immunity from suit in United States courts under the eleventh amendment, and this suit does not lie. Nor can it be sUotained on other grounds. Injunctions to restrain the collection of public taxes are contrary to public policy. In granting them the Judical department of government brings itself into conflict with the executive in the discharge of one of its most important functions, and violates that comity which should be observed between departments essentially distinct and independent in their respective powers and duties. The legislature of Virginia very jealously prohibits the state courts from granting inj unctions in restraint of the collection of state taxes; and congress, in section 3224 of the Revised Statutes of the United 8tates, foruids, in sweeping terms, "any suit" for enjoining the assessment or collection of "any" Lederal tax from being maintained in "any court." When, a federal court, evading both t:lCSt: inhibitions, impliedly binding on it, assumes to enjoin a state in the collection of her public taxes, unless impelled by the most exigent circumstances and justified by the most cogent reasons, it transcends its proper sphere of jurisdiction, violates comity, and commits a trespass upon the most vital rights of the states. The supreme court of the United States has repeatedly condemned such proceedings, mure especially in cases similar to the one at bn.r. State Railroad Tax Cases, 92 U. S. 61H-617; DolL'S v. Chicago, 11 Wall. 108; HanllelCillhle v. GeorgetOWII, 15 Wall. 547. Since the twenty-ninth of March last, for a period of more than six. weeks, this cuurt has stood betweon the state of Virginia and the collection of an important part of her revenues One of the proceedings in which she interfered, viz., the suit wluch was commenced in replevin, was found to be unauthorized by law, and the court abandoned it after two weeks of obstruction. Thereupon the present proceelling was instituted, which has been pending since the sixteenth of April. Complainant's counsel endeavor to justify it on various grounds; some of them merely technical and nominal, others more deserving of serious consideration. I ,,-ill consider the more serious grounds of complaint set out in the hill. But, hefore dealing with them, I will first mention an ob.:ac]e in the way of this proceeding which constitutes a formidable
DALTDlORE & O. R. CO. L'. ALLEN.
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I ar to the relief sought. Interference by a court of equity with the. collection of taxes is always discouraged because of the inability of the chancery court to afford complete relief in the premises. It bas no power to correct errors and repair mistakes in assessments; that being distinctly and exclusively a function of tbe executive. It has no jurisdiction to set the taxing machinery of the government in motion for the purpose of making levy and enforcing a legal tax in the event of the tax complained of being found to be illegal or un· constitutional. It is powerless to apportion a tax-ratifying the part that is legal and nullifying. the part that is illegal. It has no power to make a new assessment or direct its collection by the proper officer. It can obstruct, but it is hopelessly impotent to accomplish what is rightful to be done; and a court which has power merely to obstruct is always slow to proceed at all. There could not be a more striking illustration of the imbecility of this court in such a cause as the present one for any but an obstructive purpose, than was given the other day by the production at bar and proffer to th· court of the coupons and silver that had been tendered by complain ant for these taxes. How could we know which of the coupons were spurious and which were genuine; and, as to the former, how could we consent to become the depositaries of contraband debentures. That some of the coupons are spurious is certified by the legislature of Virginia in the recitals of the act of February 14, 1882, entitled an act to ascertain and declare Virginia's share of the public debt. Suppose we assume jurisdiction of this suit, and also of others pending here, in which jurisdiction is claimed for us in all coupon cases whatever, under section 1979 of the Revised Statutes, and under chapter 137 of the Supplement to the Revised Statutes,-the court would become the depository of hundreds of thousands of dollars in nominal value of tllese coupons, with no authority to do anything with them, and no jurisdiction to administer complete justice between the state of Virginia and the owners of them. The court should be slow to enter upon a proceeding which can end in no sound and perfect judicial result. Passing from this obstacle to that complaint of the bill on which counsel lay the greatest stress, complainant avers that it had it right, nnder former laws of Virginia which embodied contracts with her creditors, to pay the taxes now under consideration in such coupons of interest as were tendered in this case, and that it was prevented from doing so by the observance on the part of the state's revenue officers of the provisions of the act of assembly of Virginia, passed January (Acts Assem. 1881-02, c. 41, p. 37,) which allow payment in gold, silver, nnd treasury and bank notes only. Complainant denies the constitutionality of that act, and therefore prays that the officers seeking to collect taxes under it may be enjoined so. doing. The hearing of tIle present motion lor .a preliminary In J unction, based as it is on the que;;tillll of the cOllstitll tionality of
180
this act, is therefore equivalent to a final hearing on the merits 01 the bill. The act of January 26, 1882, now assailed, is auxiliary to that of January 14, 1882, (Acts 1881-82, c. 7, pp. 10, 11, 12,) and must be considered in connection with it. supreme court of the United States, in the case of Antoni v. Greenhow, has decided the act of January 14th to be constitutional, and has but a few days ago refused a rehearing of that case. We have, therefore, some firm ground to stand on. In order to a comparison of them, I will set out the substance of each of these acts. The supreme court described the act of January 14th as follows: "Sections 1, 2, and 3 of the act of 1832 provide. in snbstance, that if cou-
pons are tewlere<l in payment of taxes the collector shall take and recei pt for them for the purposes of identification and verilicatilln. lIe shall then require payment of the taxe3 in malley, and after marking the COUpOIlS with the initials of the name of the owner, shall deliver them to the judge of the county court of the county, or hustings court of the city, where the taxes are payable. The tax-payer may then file his petitilln in the county or hustillgs court against the commonwealth to have a jury impaneled to try whether the coupons are- genuine, legal con pons, which are legally rccei vallIe for taxps, deuts, and demands. The commonwealth may be brought into court by service of a summons on the cOlllmonwealth's attorney. Upun this petition an issue and trial by jnry is to be had, with ample privileges to all parties of exception aud appeal. If the suit is finally decided in favor of the tax-payer, he is to have the amonnt paid by him fur the taxes refunded out of tlUl first money in the treasury, in preference to all other claims."
Of these clauses of the act thus set out in substance by itself the Bupreme court spoke when it said: "A remedy which is ample for the enforcement of the payment of tne money [which the act provilles shall lie refunl1el1 to the coupon-holder by the state treasllrerl is ample for all purposp-s of the contract. That, we think, is given by the act of 1882 in both forms of proceeding."
Thus we have the distinct and irrevorsible decision of the suprc:ne court of the United States that the remerly of the coupon-holder afforded by the first three sections of the act of January 14, 1882, is adequate, and that those three sections are ample to discharge the constitutional obligation of the state in respect to the remedy supplied to the coupon-holder. We come, therefore, to the act of J anuary 26, 1882, whose substance I will state. That act, after requiring that nothing hut gold, silver, United States tre:lsury notes, or national bank notes, shall be received for taxes, goes on to provide that "in all cases in which an officer shall take any steps for the collection of revenue claimed to be due the state from any citizen or tax-payer," Buch person, if he conceives the same to be unjust or illegal, or to be unconstitutional, etc., may pay the same under protest, amI, on such payment, the officer collecting the same shall pay such revenues into the Btate treasury, giving notice to the treasurer that the same was paid nnder protest. It gives the protesting tax-payer leave, within
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80 days after such payment under protest, to sue the collecting officer for the amount which had been paid, in "the court having jurisdiction of the parties and amounts." If, in such suit, it be determined that the money was, for any roason going to the merits, wrongfully paid, and ought to be refunded, it provides that the court shall so certify ofrocord, arid that the auditor of public accounts shall issue bis warrant for the amount, and that such warrant shall have preference of payment over other claims upon the treasury, except such as have prjority by constitutional requirement. It provides that this shall be the only remedy "in any case of the collection of revenue, or the atte-mpt to collect revenue illegally, or the attempt to collect revenue in fuuus only receivable [meaning in such jUl/ds on'y I,S arc receivable] by said olIieel'S under this law, the same being other than, and different funds tll!tn, the tax-p::tyer may thIder or claim the right to pay." It takes away from the tax-payer the remedy by injnnction, mand'/IllUS, prohibition, and all Qlher remedy theLll that of suing the taxcollectur as provided by this act. Observe that the clause just recited refers only to what occurs in cases of the compulsory collection of revenue under the act of January 26th, and does not refer to what Occurs in cases whers the tax-payer comes voluntarily forward to pay, as contemplated by the act of January 14th. The act goes on to make it misdemeanor, punishable criminally, for the collecting officer to receive other funds than gold, etc. After some immaterial provisions, the act finally provides that no officer shall be su hjected to any other suit than the one itself provides for any refusal on his p::trt to accept payment of taxes in funds not author1zed to be received by the act. It is to be ohf.erved that this act comes into operation only where the tax-payer "!:ltanus passive," ancl puts the state to the necessity of "taking steps for the collection of taxes due. .. It then forbids the recflipt of coupons in payment, requires payment in gold, etc., and allows the cou pon-holder, after paying t::txes in gold or other money, to sue the collector for the return of the money paid him. As before saicl, it allows him to pay under protest, and requires the collecting officer to notify the state treasurer of the protest. The snit may be bronght in a state court; or, if proper cil"cumslances of jurisdiction exist, it may be brought in a fedeml court; and the court may pass upou the validity of the tender of co ,)OllS, with reference >lither to tile constitntionality of the act in forbidding the reception of them, or to the genuillelJe.:is or spnriousness of the COUpOllS tt-udered, or with reference to any other question going to the merits. The fundamental error of complainant's counsel cOllsists in assumthat this act of January 26th repeals that vI January 14th. It evidently rioes not do so in terms, but counsel insist that it does so bl implication. On the contrary, I think that by necessary implicatIOn there is no repeal. TUe act of Januar,}" 14th provides a means
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of availing of coupons in payment of taxes for "any tax-payer," "whenever he shall tender" to the proper collector "coupons detached. from bonds of the commonwealth." 'l'his applies to every tax-payer. It grants him the remedy given by sections 1, 2, and 3, "whenever he shall tender" his coupons. He may make thi8 tender at any time before "step8 are taken" to collect his taxes coercively. He may make it after such "steps have been taken;" after he has brought 8uit against the collecting officer; and after the court in which he thus sues has passed favorably upon it. On the other hand, the act of January 26th applies only to cases in which a collector of taxes has "taken steps" for their compulsory collection. The earlier act applies to vOluntary tax-payers. The latter act applies only where the tax-payer has failed to avail of the remedy given by the earlier, and has slept upon. his duty as to taxes until aroused by a levy upon his property for them. The act of January 14th coyers cases where the tax-payer holds out his hands to pay the state. The act of January 26tb covers cases where the state reaches forth her hand to collect from the tax-payer the tax which he neglects to pay. So far from conflicting with each other, these statutes go hand in hand, and are not only consistent, but mutually assistant. The tax-payer who schemes for time and delay may, as complainant's counsel express it, "stand passive" until the collecting officer approaches with his warrant of distraint. Aroused and coming forward, then, the tax-payer may pay in money under protest, and at once sue the officer for refusing coupons. If he succeed in his suitt he will get back his money from the state treasurer, and still avail himself of his rights under the act of January 14th, for,> his taxes will still remain unpaid. The act of January 26th does not, as complainant's counsel assert, take away "all remedies" from the tax-payers against whom "steps have been" taken for compulsory collection. It only takes away injunction, mandalllus, and the ordinary common-law remedies. It leaves the right to petition under the earlier act, which the supreme court decides to be ample in its provisions for the enforcement of the tax-payers' rights in respect .to the coupons; and it leaves the right to sue under its own provisions for the restoration of the gold, silver, or other funds which have been paid under protest. Xor does the act of January 26th deprive the tax-payer of the action of trespass against the collector for an illegal levy. It, in terms, only deprives him of the right of suing sU:lh collector for a "refusal on his part to. accept in payment of the reyenue" the coupons or other funds, not gold, etc., \\"hich he may have tendered. The act affords no protection to Hamilton, the defendant, in this case, who made the levy on complainant's property, for no coupons lJaye ever been tendered him" or other funds contraband under law, and the act only protects fands .. I rl?peat that the of. llim from suit for refusing January 2Gth does not repeal that of the 14th. It docs not repeal
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expressly. It avoids to do so in terms, and it, by necessary implication, continues the earlier act in force; even re-enforcing it by its own provisions. If it does not repeal the earlier act, then, even though it did not ,itself afford a remedy to the tax-payer, enabling him to exercise his constitutional privilege of paying his taxes in coupons, the supreme court has decided that the act of the 14th does afford an ample remedy; and it is not incumbent upon the state to afford more than one ample remedy for any right. If it afford no independent remedy, then the narrowest construction that can be put upon the act of the 26th is that it operates as a limitation, shutting off the right of the coupon-holder to pay his taxes in coupons, if he neglects to avail himself of the remedy afforded by the act of the 14ih, and "stands passive" until his property is distraiIled for taxes. The state has a right, after providing for its creditor ample remedy for enforcing an obligation of contract, to require by statute of limitation a reasonably prompt exercise of that right, and this period may, in respect to public taxes, be measured by weeks or days. Therefore, even though the law of January 26th could be held to shut. off the tax-payer from paying his taxes in coupons after steps have been taken for their coercive collection, still it is constitutional, and leaves the tax-payer all the remedy to which he is entitled. But this law is more than one of limitation. It affords the tax-payar an additional remedy to that given by -the act of January 14th. The supreme court of the United States has virtually so pronounced, for the aot is drawn in language almost identical with that of Tennessee, which was construed by the court in Tennessee v. Sneed, 96 U. S.G9. It is a copy of that act. Its effect as to coupons is identical with that of the Tennessee statnte as to state bank notes, and the point lllade as to its constitutionality is the same that was raised by Bloomstein and decided. against him in that case. And so it is that Virginia has put two acts upon her statute-book, constitutional and affording remedy to the coupon-holder. '1'he act of January 14th has received the express sanction of the supreme court in Antoni v. GrecnholV. The act of Jannary 26th has received that court's equally emphatic sanction in Tennrssee v. Sneed. It is to be observed, furthermore, that the language of the clause of the act of January 26th,- referring to the court in which a payer may sue the tax-collector, is broad enough to gi te jurisdiction to the fedeml court, and to relieve this of suits of the inhibition of the eleventh amendment. The clause confers the right to bring such suits in any court having jurisdiction of parties and amounts; so that, whenever the tax-paJ'er is a non-resident, and the amount of taxes due equals or exceeds the sum of $500, a circuit court of the united States would seem to have jurisdiction. Indeed, the jurisdiction may embrace all eases included in the Class defined in the first section of chapter 137, p, 173, Sllpp.Rev. St. In the present case, the complainant company could have paid the taxes UlHler pro-
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test to Collector Hamilton, and could then have sued this collector on the law side of the circurt court for the western district of Virginia, in the mode prescribed by the act of January 26th. IHhe statute gives the remedy at law in the federal court, of courso the tax-payer has no other, his remedy in equity being barred by tlJe eleventh amendment, and by the rule that where there is a remedy at lr,w equity can give none. The supremE court of the Unitetl States, in Tennessee v. Sneed, construing precisely such a law, held that the act furnished a remedy to the tax-p:tyer, and did not impair the contract by taking away injnnction and mandamus. The act nowhere seeks to confine the prosecution of the remedy to the state courts. If the amount and other circumstances of the case are such as to give federal jurisdiction, nothing prevents tl1e pursuit of the remedy at law in this conrt, as freely as in all cases it may be pursued in the stlLte courts. Such being the case, the very definition of equity, that "it is the correction of that wherein the law, by reason of its universality, is deficient," seems to forbid our allowing equity to be invoked in this case, in which relief at law is adeqaate and complete. Summing up what I have said on this act of Janunry 26th, the eleventh amendment denies to complainant a remedy in the federal court, unless the state of Virginia grants {lIe right to be sued in that forum. If she grants that right in a particular ma,uner, no other manner can be pursued in exercising it. Having granted it in the manner prescribed by the act of Janu,ary 26th, and that remedy being a remedy at law, complainant should have followed the method there prescribed; and, having been provided only with a remedy at law, c0'11plainant would no right to resort to equity, even though the eleventh amendment did not bar its doors against him. rrherefore the proceedings in equity, which has instituted here, cannot be maintained. I will now pass un to the minor grounds of complaint relied upon in the bill, one of which is that a penalty is inflictecl by the second assessment on which the levies for these taxes were made; an increase of a third having been imposed in consequence of cOluplainant's delay in. paying tllO lesser tax first assessed. The fact that the second assessment, based, as it was, on a valuation of $20,000 per mile, proved to be grelLler than the first, is an accident which arose out of the peculiar Mtcumstances the valuation of these particular roads. 1'he act of April 22, 1882, requires the board of public works to make the first assessment from "the best and most reliable information that can be procured," and is in all other respects silent at to the rate of valuation at which this first assessment shall be made. It nowhere requires, indicates, or implies that this ment shall in a:ll cases be at a rate of valuation less than $20,000 per mile. ThE} board of public works is to make it from the best and most reliable iuformation at hand·. The board may make
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it at the rate of $15,000 or $150,000 per mile, so far as the law is concerned; but whether the first assessment be made on the basis of fifteen, or one hundred and fifty, or forty, or ten thousand dollars a mile, if the company assessed fail to pay the tax resulting, within 60 days, then the act requires that a second assessment shall be made by the auditor, and fixes the <1rbitrary valuation of $20,000 a mile as the basis of it. This provision of law is not penal, either in its terms, its spirit, or its legal effect. The only ground on which the second assessment is open to objection, with reason, would be that the valuation $20,000 is excessive. This is not alleged by the bill. It is notorious that such an averment could not be made with truth, and the bill refrains from making it. The assessment is strictly legal, and is not penal. By the accidents of this case the second was larger than the first assessment, and a mere hardship has resulted-resulted, too, from the laches of the complainant. Equity does not relieve from hardships of tbis sort, which a reasonable diligence on the part of the complainant could have averted. Vi,qilantibus non dOTlllientib1ts is applicable here. Self-imposed burdens are not grounds for equita ble relief. Utller of the minor complaints of the bill are urged in conformity with the ruling of the supreme court of the United States in Hllnllewinkle v. Geo/'grtowll, 15 Wall. 547, in which the court held that a bill to restrain the collection of a tax cannot be maintained on the sale ground of the illegality of the tax; but required that there should be either an allegation of fraud, or that tbe t,tX sale would bring a cloud upon title, or that a multiplicity of suits would be prevented, or that some other cause presenting a case for equitable relief existed. The bill, with industrious fidelity, conforms to every suggestion of the court in this case, alleging seriatim each of the grounds expressly named, and re-enforcing these with other grounds, numerous enough to satisfy the most exacting requirements in that regard. It charges fraud upon the officers of the state in the assessment of this tax. It sets out no facts creating a presumption of fraud, and throwing upon the officers the burden of rebutting its allegations, but employs only general averments. The first assessment upon the four railroads Was made by the board of public works, at the rate of $15,000 a mile, "from the best and most reliable information that could be procUi"ed." This was in strict compliance with the direction of section of the act of April 22, 1882. The tax not having been paid wIthin the period prescribed, the auditor, in strict compliance with the same law, made the second assessment at the rate of $20,000 a The latter proceeding was expressly, positively, and peremptorIly required by law, and the officer would ha ve been derelict in dnty, and would have subjected himself to the imputation of frand, if he had not made the assessment. A third officer was deputed, in ex-
0'
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FEDERAL REPORTEr..
act with the same law, to collect, and took the steps fOr collecting, the tax, in doing which this court has obstructed him. Now the presumption is always in favor of the regularity and validity of the conduct of oflicers engaged in the performance of their oflicial duties, and equity will not enjoin them upon general averments that the assessment was too high. Indeed, in all cases in which fraud is relied upon, the especial facts constituting the fraud must be set forth. Distinction must also be taken between cases in which there an entire absence of authority in law on the part of taxing oflicers, and cases of mistaken or wrongful execution of powers conferred by law; and the rule is that where the oflicer acts under valid authority, and acts within its limits, he will not be enjoined, although errors may have occurred in the exercise of the power conferred. In the case before us these conditions are not snpplied, and the averment of fraud is untenable. Another complaint is that the levies made upon complainant's property, and the sales of it advertised, create a cloud upon the title of the real estate of the four railroad companies for the taxes due for which the levies were made. If the companies owning those railroads were themselves before the court as parties to the bill, the court could hear this complaint; but coming as it does from a complainant which expressly disclaims title in the real estate referred to, it cannot be entertained. Besides, this doctrine of cloud of title applies only in cases where real estate is to be sold, and sold under proceedings which are in fact illegal, but which do not show the illegality on their face. It applies only where a court is about to sell an illegal title to real estate, and where the illegality is not to be found in the record of its proceedings. Here it is not real estate, the sale of which is sought to be enjoined, but personalty, and the objection is untenable. It is also complained that a multiplicity of suits will result from the sale of this property for these taxes. The bill does not set out with any precision how such a result will follow. It is certain that no multiplicity of suits yet exists. The better doctrine on this subject is that the mere apprehension of suits not yet brought will not justify the interference of equity. In general, injunction of one suit is only granted where a multiplicity of suits are actually pending, all of the same character, and involving the same question of law. The bill refets to suits about to be instituted by the other railroad companies of the state, involving this right to pay taxes with coupons; but none of them have been instituted, and the proof is that all the companies but this complainant have paid their taxes in money. rrherefore, as to other railroad suits, even the apprehension of them is wanting. As to the liability of the complainant company, as trustees for its stockholders, to actions by them for taxes paid in money, or by sale of property, which it has voluntarily tendered in coupons, the vague apprehension of suits so improlmble and remote, anel which "ould be
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SO untenable if brought, is not "orthy of the con.sideration of the ·court. So of the equally vague apprehension intimated in the bill, of suits that might be brought against complainant as a com mall carrier, in consequence of its failure to serve the public effectually, -because of a temporary subtraction from its rolling stock of some 60 freight cars and a locomotive. The probability of a great company, owning thousands of freight cars, and probably thousands of locomotives also, being sued for breach of its contracts as a common carrier, by reason of so diminutive a loss of rolling stock, is too remote to be considered by the court, especially as it is not averred that a single suit of the kind has yet been brought. It is also complained that the treasurer of Augusta county, John E. Hamilton, aIle of the defendants, who, or his deputy, made the levies, and the seizures of property in this instance; is not pecuniarily responsible for a wrongful sale of this property in the damages that might be recovered from him in trespass; his assessed estate being only of the value of some $4,500. The argument of the bill on this head is that as this same defendant was about to make similar levies on the property of other railroad companies, the damnges accruing to all would exceed any possible assets which he might possess for the satisfaction of them. But the proof in the case is that all the other railroad companies have paid the taxes due from them. There is no possibility, therefore, of any such snits, and the premises of the bill are at fault in this particular. It does not appeal' that Hamilton will be sued for any other seizures than those made in this case, and as it appears that he guided himself in this action by the direction of the law under which he was acting, his liability is CO\'· ered by his official bond, which was stated at bar to have been given in the penalty of $200,000. The danger of loss to the complainant in this direction is not, therefore, so probable as to be worthy of the court's consideration in the present The complaint just mentioned is made in aid of another complaint of the bill, that irreparable injury would be inflicted upon the complainant by the sale of the property under seizure. The Baltimore & Ohio Railroad Company is too wealthy and powerful to be in"eparahly injured by these seizures, except, comparatiYely speaking, to a most diminutiye extent. The injury could have been averted in the first instance by taking the steps pointed ant by law for yerifying the COupons with wlJich tlle complainant songht to pay the taxes-a law recently pronounced valid by the supreme court of the United States. Eyen now the measure of irreparable injury threatened is that which would result from first tendering the coupons and adyancing the amount of taxes in money, and then obtaining a reimbursement of the moneyadYallced by having the coupons Yerified according to law. Any injnry with which it is threatened is reparaule by the procedure indicated, which the court is bound to consider as haying been provided in good faith. The court, therefore, must disregard complain-
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ant's apprehension of an irreparable injury which seems to have been self-imposed. A sale of complainant's property by due process of law for the satisfaction of taxes, which may be avoided by complying with a law which, however onerous it may be in respect to men of small means, who are required to verify very small amounts of coupons, yet subjects holders of large amounts to neither an onerous nor an unreasonable proceeding for verification, cannot be regarded as inflicting an irreparable injury, either practically or theoretically. Still another complaint of the bill is the interrul'tion which the seizure of its rolling stock is alleged to produce in the performance of complainant's duties to the public as a common carrier. If the four companies owning these local railroads were complainants, and if they owned only the quantity of rolling stock properly belonging to short local roads, these seizures might be really amenable to the complaint of the bill in this pnrticular. But the complainant is one of the most wealthy railroad corporatiolls in the world, having unlimited command of all the appliances and instrumentalities for conducting the immense business of its main stem and the auxiliary roads under its control. Its operations are on so large a scale as to be part of the puhlic history of the times, and the court may take judicial cognizance of the amplitude of its resources as to rolling stock. It is hardly possible to believe that the complainant's power to serve the public as a common carrier is appreciably affected by the, to it, inconsiderable levies made by Hamilton, the defendant in this case: and this complaint is untenable. All these minor complaints seem to me to be frivolous; and hardly worthy of the serious attention 1 have given them. They certainly are not sufficient to justIfy an injunction against the collection of public taxes. I think the case is ruled by Antoni v. Greenhaw and Tennessee v. Sneed,. and I am constrained to deny the motion for a preliminary injunction. The connsel of the respective parties consented to a decree on the basis of JUdge Bmw's decision, and the case was certified to the supreme conrt of the United States on a division of opinion. Restraining collection of tax. See &econd Nat. Bank v. Caldwell, 13 FED. REP. 429, alllinote, 434---439.-[ED.
BALTIMORE de O. R. CO. V. ALLEN.
a political society is a nation, and this nation possesses political sovereignty.1 But the nation must exist as an historical fact, prior to the possession or exercise of sovereign power,-prior to the existence of written constitutions and laws of any ki"ct,-and its existence must be esta1>lished 1>efore they can be recognized as having any legal force or valillity.2 The organized government, whatever be its form and character, is but the creature and servant of this political unit, which alone possesses dominion in itself. a The rule of the cornman law, that the sovereign cannot be held amena1>le to process in his own conrts without his consent, is applied in this country to the state, under which designatiun are included the people within its territorial limits. in whom resides Whatever sovereignty the state possesses. 4 That the snpreme power in a state cannot be cOlllpellel1 by process of courts of its own creatiou to defend itself from assaults in those courts, is a fundamental principle that has been adopted in the courts of this country as a part of the general doctrine of publicists. fi This maxim is not limited to a monarchy, but is of eqnal force in a republic. In the one, as in the other, it is esseutial to the common defellse and general welfare that the sovereign should lIot, withont its consent, be dispossessed of its ]Jroperty.6 It would he inconsistent with the very idea of supreme executive po weI" and would endanger the perfonna1Jce of the public duties of a sovereign, to sullject him to repeated suits as a matter of right at the will of any citizen, and to submit to the jUdicial tribunals the control and disposition of his pUblic property, his iustrulllellts and means of carrying on his government in war aTHI in peace, and the money in his treasury.7 'fhis principle of immunity from suit applies to every sovereign power, and but for the protection which it affords the government would be unable to perform the various duties for which it was created. 8 The principle that no sovereign can be sued WitllOllt its consent, applies equally to foreign sovereigns, and to sovereigns of the country where the suit is brought. The exemption of the sovereign is not less regarded by its own courts than by the courts of other sovereiglls. 9 In the words of Cllief Justice TANEY, "it is an established principle of jurisprudence in all civilized nations that thc sovereign cannot be sued tn its own courts, or in any other, without its consent and permission." 10 2. STATUTES CONFERRING HIGHT TO SUE THE STATE - HEPEAL. The state may, however, if it thinks proper, waive this privilege, aud permit itself J!'omeroy, Con.t. Law. 141. See. RI.o, Chis. hOlm v. Georgia, 2 DaIl. 435; PenhalJow v. Doane,3 Dall. 93; Cherokee K:ltion v. GeOl'gitt, 5 Pet. 52; Texas v. \\Th:te, 7 'Vall. 700; 1 Kent, Comm.IS8; SIOl·Y. Co".t. \1207,208; I PhllIimnre. Internat. Ltiw. 77; \VheatoJl, Jllft-foat. Law, (Dana's Ed.)!§ 17, 20; Field, Inlernat. Code, !§ 2, 12; V:ltteI, Prelim. l. 2; l\!orse, Citizenship, § '2; 1 ToulJier. n. 20; l\IerJin, Rtpert.; Lieuer, Hermelleutics, 2Brownson. Amer, Repnb. 201; Pomeroy, Con!o't. La,,,, § 86. a Pomeroy. Con-to Law, Il37. 86-91. {Stale v. Jumel, 2 Snp. Ct. Re:>. 142; Elliott v. 'Viltz, ld., per FIELD, J. SCohens Y. "irg-inia, G\Vhe:1t. 26-1,411; United v .. Clarke, 8 Pet. Cary v. Curtis, 3 How. :236 256; U" S. v. McLemore 4 HloW.286_2;,'9; Hill v. U. S. 9 How. 3S6. 3SJ; v. \Valker. 11 How. 27-l, 290; Beers "'{" v. 20 How. 527, 5¥9; Nlitiolls v. John" oon, 24 How. 19,'1; De Groot v. U. S. 5 Wall. 419,431; U. S. v. Eckror<l 6 Wall. 4S-l, 4i'S; The Siren. 7 15:!, 15-1; The 10 \\7 a ll, 15, 20; U.S.v.O'Kcer,.1 Wall. 178; Case v.TerreIl, n Wall. 199, 201; Carr v. U. S. 9j U. S. 433, 437; U. S. v. Thompson, 9S U. S. 4S6, 4S9; Railroad Co. v. Tennesee, 101 U. S. 337; Railroad CO. V. Alahama, 101 U.S.8.12; U. S. v.Lee. Ili6U. S. 196; 1 "np. Ct. Rep. 2411; StRte v. Jnmel 2 Snp. Ct. Rep. 128; Ex parte Dunn. R S. C. 207; v. Cleary, 3 Rich (S. C.) 372; People v. Dennison, 84 N. Y. 272; People v. lIliles, 56 Cal. 401; Chi. CRgO, M. & 8t. P. "y. Co. v. Elate. 53 Wis. 5 9; RR)'mond V.Stllte. 5-1 ChevalIier's Al1m'r v. State, lOTex. 31 ; Tr:1cy v. HOTnb ckle, 8 336; Tate v. Salmon, (Ky. Ct. Appeals,) 13 Re. porter, llt; nolIo v. Ins. Co. 5J5; State V. B. & O. R. Co. 34 1\1,1. 341; Slate v. Hill, 54 AI<1. 67; Ex parte State, 52 Ala. 231; Owen v. State, 7 PattIson v. Shl{'l,,-. 6 Ind. 377; v. The 11 AJlen, 162. 6 U. S. v. Lee, I 6 U. S. 106; 1 Snp. Ct. Rep. 240; The Siren, 7 Wa II. 132. 11 Anen, 162. 1 Brig-gs v. The S Klehols v. U. S. i Wall. 1:!2, 126. 9U. S. v. Lee. 106 U. S. 196; 1 Snp. Ct. Rep. 2-t0; The Exch-.ng-e. 7 Crunch, 116; VaYa!-sour V Krupp, 9 Cb. Div. 351; The Purlemente BeIge, 5 Prob. Div.l;J7; Briggs v. The Light-buats, 11"ll. len, 162. 10 Beers v. Arkansas, 20 How. 5:9
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to be made a defendant in a suit by individuals or by another state;l but if, in the liberality of legislation, it does permit itself to be sued, it is OJily on such terms and conditions as are prescribed by.statute;2 for there is vested in no officer or body the authority to consent that the state shall be sued, except in . the law-making power;3 and whoever institutes proceedings against the state must bring himself within some statute authorizing such suit. 4 As tid,; permission is purely voluntary on the part of the sovereignty, it follows that it may prescribe the terms and cOliditions on which it consents to be sued, nnd the mallller in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. 5 Statutes permitting suits against the state are matters of grace, confer privileges,-they do not create rights,-and are always construed like other statutes conferring privileges or exemptions on the citizen. The power to withdraw is commensurate with the power. to confer; and when the privilege is withdrawn, the citizen. is remitted to the condition in which he stood when it was conferrec1.6 All oLligations or liabilities resting upon the state, being creations of the legislative power of the state, it is the good faith of the state alone on which reliance is placed to perform the obligation or discharge the liability. Legal remedies, or their etlicacy in enforcing the obligation or liability, are not contemplated as in cases of contracts between individu.tls. 7 If the state furnishes a remedy by process against itself or its o1licers, that process may be pursued, because it has submitted itself to that extent to the jurisdiction of the courts; lmt if it chooses to withdraw its consent by a repeal of all remedies, it is restored to the immunity from suit which belongs to it as a political community, responsilJle in that particular to no superior. 8 ' 3. SUITS AGAIXST TIlE SEVERAL STATES TO COXSTITUTION. In our system of juris[JrUllence these principles are as applicable to each of the states as they are to the United States, except in those cases where by the constitution a state of the Union maybe sued in the supreme court of the United 8tate8. 9 It is provided by the eleventh amendment to the constitution of the United States that no state can be sued in the courts of the United States by a citizen of another state. The evident purpose of this amendment was to prohilJit all suits against a state by or for citizens of other states, or aliens, without the consent of the state to be sued; and one state cannot creat.e a controversy with another state, ,,·ithin the meaning of that term as used in the judicial clauses of the constitution, by assuming the prosecution of debts owing by the othpr state to its citizens. 'o It was intended to operate in the interest of, and for the of, the several states, aUlI it cannot be so construed as to allow the property of a state to be alienated or conveye<l in a suit in equity against a sulJonlinate ollicial of the staleY ,rhen a state sulJmits itself without rescn"ation to the jurisclietioll of a court ina particular case, that jurisdiction Illay be used to give full effect to what the state has, by its act of sulJmission, allowed to be cloneY And it is held .:\IATTIlE\YS, BUADLEY, and GRAY, JJ., that the ouly relllellies which the courts 1 BeefS l. _-\rknnsas,::O lID",. 527, :ex 52 v. V. S. 7 V;ail. 122, 1:2;:;. 3 T1:e Dari" 10 Wall. Je,; V. S. '1". Lee, 1:6 U. S. ) Sup. Ct. Rep. 2-10. -1St;,tc Y. Hill, ;)-1 Ala. 6.; Owen Y. State, 7 Xeb. 103; Ex parte Dunn. S S. C. 207; The Siren, 7 Wall. U. S. 'I". Clarke, S Pet. 441; Tate v. Salmon,13 Reporter. H-1. SHeers y··-\rkansas, 20 How. 5'27, 52'); The Day]·. 10 Wnll. 15. 6 J X pnrte State, 5:2 ..-\la. 233. "; Ex parte Stilte, 52 Ala. 2":.). Comp1re Han. cock Y. \,-.tbh, :J ";volb, DalJl,e.r Y. State
Bank, 3 S. C. 167; llark '1". Stnte, 7 Cold. 31;_ 313; D:l1lo1ds Y. State, t:9 X. Y. 3G; opinions of FIELH :tnlllL\.RLAs, JJ" in Antoni,". Grecnho-\y, ::'Sup. Ct. Rep, 91, amI State v. Jumel t I,L 123. .\ntoni y. Greenhow, 2 Sup. Ct. Rep. FiJ, ll\.·r . )IATTHF.ws. J. 9 Railroad Co. v. Tennessee·. IO} U. S. 3Ti; Railroad Co. v. Alahama, Id. 1'32; U. S. Y. Lee, , lOG U. S. 1£6; 1 Sup. Ct. Rep. 2;0. lOState '1". State, 2 Sup, Ct. Rep, 1;6. llPl'e!'ton Y. '\-alsh, 10 Fed. Rep. 12 State Y. Jumel, 2 Sup. Ct. Rep. H!; Elliott '1", \\"l1tz, Id,
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of the United States are authorized to administer, are the remedies that the state itself has provided, and that no remedy is provided by the constitution of the United States against the state itself for a breach of its contract by the . state. 1 4. SUITS AGAINST THE OF A STATE. 'Vhere an otlicer of the state, in violation of law, commits an act to the injury of the citizen, it is an act beyond the scope of his ageney, 111lfwthorized by his principal, and the state is not liable, therefore, to the party injnred;2 and where an oflicer is proceeding under an unconstitutional law to tile injury of the citizen, such law will not protect him from suit on the ground that a suit against him is virtually a suit against the state. 3 this limitation, however, the omcers of a state, in the otlicial discharge of their duties, are entitled to the same immunity from suit that the state, eo nomine, would be entitled to. 'Ve will briefly review the cases bearing upon this point. In The Queen v. Powell 4 a writ of mandamus toadmit to a copy-hold tenement of a manor, belonging to the crown, was directed to the steward alone, on the ground that there could be no mandam1ts to the sovereign, and Lord DENMAN, with the concurrence of Justices LITTLEDALE, and COLEnIDGE, quashed the writ, and after observing that doubtless there could be no mandamus to the sovereign, but that the interests of the crown were to be as much guarded as those of the subject, said: "If we were to allow a mandamus to the steward alone, and the writ were obeyed, the property of the crown would be affected indirectly by the mandamus to the steward alone, when it cannot be affected directly by making the sovereign a party to the mandam1ts; '" * * and if the advisers of the crown were of opinion its interest might be affected, and were to advise the sovereign either to order the steward not. to admit the prosecutor of the manclamus or to revoke the appointment of the steward, this court. could not grant an attachment against the steward, and then the party does not get admitted." In The Queen v. Comr's of T1'easul'V,5 in which the court refnsed to grant a writ of manclamus to the lords commissioners of the treasury to compel them to pay over money in their hands as servants of the crown, Lord Chief Justice COCKBURN said: "I take it for granted with reference to that jurisdiction that we must start with this unquestionable principle: that when a duty has to be performed (if I may use that expression) by tlHl crown, this court cannot claim, even in appearance, to have any power to command the crown; the t.hing is out of the question. Over the sovereign we can have no power. In like manner, where the parties are acting as servants of the crown, and are amenable to the crown, whose servants they are, they are Hot amenable to us in the exercise of our prerogative jurisdiction. '" * * Though 1. qUite agree that according to the appropriation they (the lords commissIOners) were bound to apply the money, upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent on them to do what 1 cannot say they ought to have done, except as sen-ants of the crown. because in that character they have received the money, and no other." BLACKRUHX, J., in the same case,6 remarked: "It seems to me th:lt the obligation, such as it is, is upou her majesty, to be discharged through her sen-ants. and YOIt cannot ]Jl'weerl. tllerefore. ayninst the sercants." "'here an injunction to restrain the auditor and treasurer of the state of l_-\nloni v. Greenhow. 2 Snp. Cl. Rep. 91. See Preston v. 'Va)sh, 10 Ft'tl. Ht-p. 2Dahne,r Y. State Bank.:J S. C. 167; B:-lknnp t .· Beiknap, 2 J(;hn:,. Ch. -163. See Spring '-alley \\ ater.works v. B:lrtTe: t, 16 Fett. Rep. 61·-,. 3State Lutter)' Co. L Fltzpatrick, 3 \\"oolls, 323; Clayhrook v.Owensboro, J6 Fed. Rep. 2:1/; Hancock v. \\-,1 1sl1, 3 "'oo-is, ZGO; Lynn v Polk: 8 Lea, (TelllL) 1:'::1; DM\is Y. Gr:l)", 16 ,,·;tll.:':l)J. Q. B: &. D. <> L. H. Q. l i . <.J'); -<.J./·L 6ld. ;;:9.
192
I"ouisiana from disposing of money in the state to t1Je prejudice of complainant, amI a mandamus to compel the payment to him of interest on state honds, held by him, was asked for, it was held that the proceedings were in effect a suit against the state, and that as the state could not be sued the court had no jmisdiction. 1 'Vhere an action was brought by an insurance roucy-holder to compel the state treasurer of Kentucky ('fate) to deliver to the receiver of the company, for the benefit of its policy-holders, a certain fund deposited with the treasurer by the company as a condition to doing business in the state, (Act of March 4, 1870, § 47,)2 the petition was dismissed. J"EWIS, C. J., in delivering the opinion, said: ., The general assemlJly has not seen proper to enact a general law (as uy article 8, § 0, of the constitntion they have power to do) authorizing RIlCh suits to lJe bronght, or conferred upon any court of the state jurisdiction to control and distrilJute the funds in the custody of the treasnrer. It has been repeatedly decided by the court that, in the ausence of a law authorizing it, the state cannot be made a party defendant or garnishee, and is not in her own courts, and' that parties will not be allowed to evade this inhibition by ignoring the state in their suits, and proceeding directly against the public omcer having custody of the money sought to ue reached,' As no law has ueen passed lJy the general assembly for the disposal of the fund, it mnst remain in the custody of the treasnrer, subject to such use or appropriation as IlJay hereafter be provided by law, aud no suit to recover or dispose of tIle fund can be maintaineLl llntil the general assembly shall direct in what manner and in what court it may lJe brought." And where a similar fund was sought to be reached hy attachment, BLATCHFORD, J .. declared that "there was no case of acknowledged anthority which held that a public otlicer of a state, charged with a trust createcl lJy a pUblic i>tatnte of the state in reRpect to funds or i>ecurities in his possession, could be made HalJle in re::lpect to them uy an attachment in favor of a person not claiming under the trust."3 In Lynn v. Polk 4 it was held that an officer, while executing a void and unconstitutional law, is not to be considered as acting uuder the authority of the state, and that a suit to enjoin the funding board (created by an act which the court held to be unconstitutional) from funding the uonded indebtedness of the state was not a suit against the state, nor against the officers of the state, within the meaning of chapter 13 of the Tennessee acts of 1873. The commissioneri> appointell under an act of the legislature of New York to drain what was known as the great swamp, exceeded their authority, and proceeded in a manner not authorized by the act, to the threatened injnry of private land-owners, and it was held they could be restrained uy a court of eq uity.5 In State L'Jttery Co. v. Fitzpatrick 6 the olfirers of the slate of Loaisi:tna, chargell with the enforcement of the pelJ.:lllaws. were enjoine,l from arresting or otherwise interfering with the omcer:> and a;1;ents of the lottery compallY for acts done by them in the exercise of the rights conferred by their charter, which tlte court held could not be repealed lJy a subsequent act of the legislature without impairing the obligation of contract, and that as the omeers were 1 State v. Rorke. 31 La. Ann. 49S; state v. Jomel, 2 Sop. Ct. Rep. 1<!S. 2T"te v. Salmoo, 13 Reporter, 141. 3 Pro\"idence S eam.ship Co. v. Virginia F. & 1\1. Ins. Co. 11 FelL Rep. 237. A!'l to) ment or att:lchment of public funlls. see Buchanan '\". Alexander, 4 How. 20; Averill v. Tucker. 2 Cranch. C. C. 511; Stillm:tn v. 11 Conn. 124; v. Sta e,.:I Eng. (Ark.) 553; '\"ild v. Ferguson, 23 La. Ann. 752; Trac)· v. HOT'lbncklE>,8 Bosh, 33'3; Rollo v. Andp9 Ins. Co. 23 Grat. 5 9; Balik v. Debri I. 3 (Tenn.) 37<:); Bank v. Hodge, 3 Roh. (La.) 373; SpaldIng v.lmlav 1 Root, 5:jl ; \Vh:ks v. RInk, 12 Ala. 5S-t; Y. Railr.md Co. "J7 Ga. 2-!J j )!a,)'or, e.c. of Baltimore Y Root, 8 Md. 93. ! ' Lea, (leno ) 121. 5Belkl'ap Y. Belknap, 2 Johns. Ch. 461, 6;1 Woods, 2"2;1.
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acting under a void and uncoostitutional law, which cOllIll neither authorize nor protect, thp,y could be called tu answer alhl were individually responsible. In llanuock v. in which the commissionet· of the general land-omce of Texas was enjoined from allowing location of land within what was known as the Mercel' colony, there was no act of the le,:ris!atul'e imposing upon him the duty of location within the Mercer colony; 2 and, if there had been, the court, held that such law would have been unconstitutional anfl void; and 'WOODS, J., in delivering the opinion said: "If defendant violates the provisions of a contract protected by the constitution of the United States, it is immaterial whether he is duing it with or withont the apparent sanction of a law of this state, and no claim that defendant is performing an otlicial duty will avail bim." 3 In Preston v. lValsh 4 the same view was taken and an injunction granted, but the court refnsed to grant relief in the nature of specilic ppl'formanl'e of contract, or at least a del'ree for title, on the ground that to effect a conveyance of title emanating from the state to pnillic lands, the governor of the state wonlel have to be maJe a party to the suit; and PAnDEE, J., who delIvered the opinion, said: "The case of Davis v. (/l'ay,5 atfirming Osborne v Bank,6 on the subject of making and requiring the state to he lIIalle a party where the state is concel'lled, is very strong, and I fel'l !Jol1lul to go as far as that case; but I must leave to the supreme court to go further, or declare the law that the courts of the United States can go furtlier."7 In JJIcCanley v. Kellog,8 WOODS, J., held that an action in a conrt of the United States against the executi ve omcers of a state in their otJicial rapacity, to compel them to comply with a contract of the state lJy the enforcement of its laws, is to all intents allCl purposes an action against the state, and prohibited by theeleveuth alllPI](1ment to the f'onstitution of the Unite,1 StatHs; and after showing that in Davis v. Gray and Osborne v. Bank tile otlicers were acting untler a voif! and unconstitutional !aw, says: "No case has yet decided that a circuit court of the United States can compel the executive and administrative officers of a state to execute the laws of a state. 9 * *. * I have conceded what complainants claim, that the funding bill and tile act of 1'>larch 14, 1874, are both unconstitutional and void, and have regarded the bill just as if those ads had never been passpd, to-wit, a bill to compel the defendants, otticers of the state, to execute its laws." 10 'Where uegro slaves were illpgally taken from the owner on the high seas, and afterwards sold to a stranger, who, without the privity of the owner, imported them into the United States in violation of law, and tlwy were seizerl by an officer of the customs of the United Stales and deli vered to an agent pointed by the governor of Georgia, in confol'lnity to an act of congress, and of them sold by order of the governor of the state, and the money obtaIlled at the sale was" actually in the treasury of the state, mixed with its general funds," and the rest of the slaves renlHined in the hands of the agf'nt of the state, "in possession of the government," a libel in admiralty by the Owner to recover possession of the money and slaves, though not brought against the state by name, but against the governor in his official capacity, was held to be a suit against the state, anf! therefore, by reason of the eleventh of the constitution, not maintainahle. 11 In U. S. v. PeteJ'If,12 in w11ich a IlWIlUamUs was ordered to a district court of 13 Woods, 21d 364. 3 ;d.:365. i III Rep, 315.
82 Woods, 13 9
d.:n
516 Wall. :!IlJ. '9 Wheal. 7:>8.
lOrd. a. 11 Governor v. ;o,Iadrnzo, 1 Pet. 110. See, also, ex p:trte .\lndrazza, 7 Pet. ti27. 12 b Cranch, 115.
, PresIon v. Walsh. 10 Fed.Rep. 328.
v.17,no.3-13
1\)·1
FEDEUAL UEPOHTEU.
thf' United States, sitting in admiralty, to issue an 1tttachment against the executrixes of David Uittenhollse to enforce obedience to a decree of that court for the payment of money, (although Uittenhouse had been the trea,mrer of Pennsylvania, and the legislature of that state had directed its attorney general to sue the executrixes for the recovery of the money, and the governor to them against any process of the federal courts,) the judgment of the suprc:r12 court, as stated by Chief Justice MAHSIIALL, went upon the ground that it was apparent that Rittenhollse held the mOne?1 in his own 1'i,qht, and that" the suit was not instituted agaiust the state or its t1'easnrer, bnt against the executrixes of David lUttenhouse for the proceeds of a vessel condemned in the court of admiralty, which were admitted to be in their possession. The state of Pennsylvania had neither possession of, nor 1'iyht to, the property on which the sentence of the district court was pronounced;" and the court carefully avoided an opinion upon a case in which the money sued for was in the possession of the state, "or the actual property of the state, however wrongfully acquired," In Osborne v. Bank U. S.l the bill was originally filed by the bank against the auditor of Ohio, and a collector employed by him, (the treasnrer being SUbsequently made a defendant by amended bill,) to prevent them from levying a tax imposed by the legislature of that state in violation of the constitution of the United States upon the property of the bank; and they, after the service of the snbpcena, forcibly took from the plaintiff's ol1ice the amount of the tax in money and paid it over to the treasurer of the state, who received it with notice of the facts and kept it apart from other moneys belonging to the state; or, in the language of Chief Justice 1LmsIIALL, it was "kept untouched, in a trunk by itself, as a deposit, to await the event of the pending suit respecting it," so that it had never come into the possession of the state; and, as said by Chief Justice \V AITE in his review of the case,2 "was in legal effect stopped while passing from the lmnk to the treasury. The money seized was kept out of the treasury, because if it got in it would be irretrievably lost to the bank, since the state could not be sued to recover it back. No one pretended that if the money had been actually paid into the treasury. it could have been got back from the state by a suit against the ofiicers, They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them indiciduall!J for the wrongs they had personally done, and could h:we no effect 0:1 the money which was held by the state." In Davis v. Gray 3 the receiver of a lana-grant railroad obtained an injunction against the governor and commissioner of the land-oll1ce of Texas to restrain them from inculllLering, by granting patents to others,lands of which the railroad had the equitable title under a previous grant from the state, and the ground upon which the bill in that case was sustained, was defined to be that when a plain otl1cial duty, requiring no exercise of discretion, is threatened to be violated by some positive otricial act, any person who will sustain personal injury thereby, for which an adequate remedy at law caHnot be had, may have an injunction to prevent it, notwithstanding the otlker pleads the authority of an unconstitutional and therefore 'VoirZ law for the violation of his duty. It is conceded, in The Siren 4 and The that without an act of congress no direct proceedings can be instituted against the government or its property, and in the latter case it is justly oLserved that ., the possession of the government can only exist through its ofilcers; using that phrase ill the sense 19 'Vheat. 733. 2St3te '\". Jl1mel, 2 Snp_ Ct. nep. 13'). a 1. Wall. 20J. 47WolI.152. 610 Wall. 15.
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O. R. CO. V.
: ID5
of any person c1largell on 1Iel1al£ of the govcl'IImeat with the control of the property, conpled with aetnal possession." In Carr v. United states 1 it is said: ",If a proceeding woulrllie against the ofllcers as indivicfnals, in the case of a marine hospital, it mignt bfJ instituteLl with equal facility and rigllt in reference to a post-ollice or a custom-house or _a prison 01' a fortification. In sOllie cases it might not be apparent, until after suit brought, that the possession attempted to be assailed was that of the government; but when this is made apparent by the pleadings or the proofs, tile jurisdiction of the court ought to cease." In Buard of Liquidation v. .McComb 2 the board of liqnidation of the state of Louisiana was enjoined, at the instance of bondholders, from admitting to the priVileges of the compromise proposed by the state of Lonisiana. certain persons other than those originally providec! for, and on different terms, bccause the board was, by the terms of the law, charged with the duty of exchanging the bonds specifically set apart by the contract for a particular purpose. They in fact held the new issue of honds in trust, and everyone who g-ave up his old obligations, and acceptec! the new in settlsment thereof, became a beneliciary under the trust, and entitlcd to a faithful performance of the terllls thereof by the trustees or board of liquidation. It was, in fact, a suit by cestui que trust against trustees. In the .J.rlill{Jton Case,3 Justice MILLER, in delivering tile opinion of the majority of the court, s:tys: .; While acceding to the general proposition that in no court can the United States be suec! directly by original process as a defendant, tllere is abundant evidence in the decisions of this court that the doctrine, if not absolutely limited to cases in which the United States are made dl:'fendant by nallle, is not permittec! to interfere with the judicial enforcement of the establishec! rights of plaintitfs when the United States is not a defendant ora necessary party to the suit;" and, after reviewing the cases decided in the supreme court, concludes" that the proposition that when at' illdicirZual is sued in regard to property which he lJolc!s as an olficer or agent of the United States, his possession cannot be distnrbed, when that fact is brought to the attention of the court, has been overruled anc! deniec!," * * '" and" that the court has heltl the principle to be unsound; anc! in the class of cases like the present, represented by Wilcox v. Jackson,4 Brown v. llllyer,5 and Grisar v. JIcDfJ1Cell,6 it was not thought necessary to re-examine a proposition so often and so clearly overruled in previous well-considerec! decisions." . The extent to which this opinion goes is stated in the Louisiana cases,7 deCIded at the same term, to be, .. that the ofi1cers of the United States. holding in their otlicial capacity the possession of lands to which the United States hac! 110 title, could be required to surrender their possession to the rightful owner, even though the united States were Hot a party to the judgment under which the eviction was to be hac!;" and the case was decideLl upon the ground that the possession and retention of the property by the otlicers of the United States were in violation of the constitutiollal provision declaring that" no person * ,;, * shall be depr:\"Cd of life, liberty, or property without due proeess of law, nor shall private property be taken for public use without just compensatiOlI;" and the COllrt held that " llndoubteuly those provisions of the constitution were of that character which it was intended the courts should enforce. When cases involving their operation and effect were brought before them;" and the court considerec! the upoa its merits, refusing to c!ismiss for t
u, S. 413. See, Ch'l nfl1r,1 of Feu. hep. 63;); Pf"(H-hlt'llce .k S. v. Virginia F. &. )1. JllS. Co. 11
(13 Pet: How. ;;115.
U. S. Liquidation, 11 Co. Fed. Rep. ::'37. 3 U. S. \". Lee,
66 \\"'111. 3 3. jSt jtp Y. Jumel, 2 Sup. Ct nep. 112; EIl70t v. ,nlLz, Id. 142.
106 U. S. 196; 1 Sup. Ct. Rep.
196
want of jurisdiction, on the mere suggestion that the United States was the real party in interest. The Chief Justice, and GRAY, BRADLEY, and ·WOODS, JJ., did not concur in the jUdgment of the majority of the court, and Mr. Justice GnAY, ill his elaborate dissenting opinion, uses the following forcible language: 1 ,. The principle upon which we are of opinion that the eourt below had no authority to try the question of the validity of the title of the United States in this action, and Ihat this court has, therefore, no authority to pass upon that question, may be briefly stated, thus: The sovereign is not liable to be sued in any jndidal trilmnal without consent. The sovereign cannot hold property except by agents. To m<lintain au action for the recovery of possrssion of property held by the sovereign through its agrnts, not claiming any title or right in themselves, b\lt only as the representatives of the sovereign, and in its behalf, is to maintain an action to recover possession of the property agailbt the sovereign; and to invade such possession of the agents, by execution or other ,)lldicial proces3, is to invade the possession of the sovereign, and to violate the fuudamental maxim that. the sovereign cannot be sued. * * In those cases in which judgments have been rendered by this court against individuals concerning money or property in which a state had an interest, either the money was in the personal possession of the defendants, and not in the possession of the state, or the suit was to restrain the <lefend:l1Its by injunction from uoing acLs in viulutlon of the of the United f3tates." 2 In Antoni v. Gl'een7low," d('eirled a few months later than the Al'liWlton Cas", Mr. Justice MATTHEW::;, who had cuncurred in the majority opiniun in that. case, distinctly states that .. a suit to compel tire ollicers uf a state to do the acts which cunstitute a performance of its contract by the state 'is a suit against the state itself," and that the ease was within the principle laid down in mate v. Jwncl. 4 To this propo:>itiun both llItADLEY and GUAY, JJ., declared their assent. In Antoni v. Grtenhow,5 a judgment of the snpreme court of apprals of Virginia, denying a writ of n/ILIJrtamns to cOlupel the treasurer of the city of Richmond, the lawful tax-collector, to accept in payment of state taxes a coupon whose genuinene::s hau nut been ascertained according to a. law passed sUbse'luent to the act umler which the vOl\(ls and conpons were issued and made receivable in payment of taxes, and which, it was contended, itnpairml the obligatiun of cuntract, was affirmed, a. majority of the court holding, upon an examination of the earlier cases, that the law which the officer pleaderl in jnstitication of his refusal to accept the coupon was not unconstitutional and void, as claimed. In the Louisiana cases 6 the suits were bronght by creditors ?t large of thc state of Louisiana to compel the ollicers of the state, by judicial process, to enforce the provisions of the consolidation revenue act of 1874, funding the indebtedne3s of the state, and prOViding for an annnallevyof taxe:>, when the state had, by an alllenument to the constitution, adopted in 1879, undertaken to prohihit them frulIl doing so. Chief Justice 'VAITE, who deliveled the opinion, s::id: "Xeither was there when the bonds were issued. nor is there now, any statute or judicial decision giving the bondhohlers a remedy in the state cuurts or elseWhere, either by mandamus or injunction against the state in its political capacity to compel it to do what it has agreed should be done, but which it refuses to do. * * * The persons sued are the executive oUicers of tIle state, allli tIleY are proceeded against in their official capacity.
1
21d. s:.!
U.s. v. Lee, 106 U.S. 196; 1 Sup. Ct. Rep. 240.
'up. CIt. Rep. 91 '2 :>up. Ct. Hep 123.
Sup. Ct. Rep. 91. 5State v. Jumel, 2 Sup. Wiltz. Ill.
ct. Rep.US;
Elliott J'.
'BALTIMORE &
O. R. CO. V. ALLEN.
197
S2Snp, CI. Rep, 91. G8tllte V. Jnmel, Sup. CI. Rep. lZS; Elliolt v. Wiltz,Id.
fSlale v. Jnmel, 2 Snp. CI.Rep. 210.
IUS .NOWLTON
FEDERAL RErJUTER· and others v. MrsH and another. April 2, 1883.)
(Circ1lit COtl1't, D. California. 1.
SgPAHATE PROPERTY OF 'WIFE USED BY HUSBAND.
'Vhere moneys of a married woman arc habitually collected and used in his business by the husband for a series 01' years, and mixed with his property, without any account thereof being kept, thus giving him credit in his business, and there is no specific agreement with his wife for repayment, or that the property purchased with it shall be hcrs, the moneys so used, and the goods or property so purchased, become his for the purpose of paying his detts. MOHTGAGE TO SECURE MONEY OF IVIFE-FuAUD ON CREDITORS.
2.
A mortgage by the husband to secure moneys of the wife so collccted and used, kcpt from the rccord till after the purchase and receipt of a large amount of goods by the husband aild his son, they being at the time largely insolvent, held to be fraudulent as to the parties selling the goods. FRAUD-QUES'l'lON OF FACT.
3.
Fraud is generally a question of fact, to be dctermined by all the circumstanccs of the case. 'VIl'E'S S:,PAUATE PflOPERTY.
4.
A wife, desiring to pre.serve her rights in her separate property, should take reasonable care to keep it distinct from her husband's business, so that it shall not Lccome thc means of practicing fraud upon others.
In Equity. David Fricdcnrich, for complainants. Daniel Titus, for defendants. SAWYER, J., (orally.) The bill in this case is brought for the purpose of having appropriated to the payment of debts certain property alleged to have been fraudulently mortgaged and transferred to Mrs. Mish, the wife of one of the defendants. Without going into them fully, a brief outline of the facts is as follows: In December, 1879, P. Mish & Son, a firm doing business in San Francisco, in a certain line of merchandise, was manifestly insolvent,-their indebtedness largely exceeding their assets. In that month P. Mish executed to his wife a mortgage for the sum of $54,000, upon property which was already subject to a mortgage for a large amount, the two mortgages being more than sufficient to absorb the property. The alleged indebtedness for which this mortgage was given arose from rents and sales of certain separate property of the wife, which had been given to her by her brother so far back a.s 18G3. For years the husband had been collEcting the rents of this property, using the money in his business, and for the support of his family, and for other purposes, and no book-acconnt or memoranrlum of it was kept by either party. At the date mentioned, :'11'. )lish and his wife figured up the amount which they claim he had received from the income of her property and added a large amount to it as interest, making the total indebtedness $54,000, for which sum the mortgage referred to was executed. The mortgage was not put on record at the time. About the time of its execution, the younger Mish left San Francisco for Xew York, where he purchased for the firm from various parties, upon a