654 



OBLIGATION OF CONTRACTS. 



usual manner the interest and principal of the bonds 

 as they respectively fall due, and that the board shall 

 purchase and retire the bonds whenever there is a 

 surplus that, under the law, is to be used for that pur- 

 pose. 



The Treasurer of State is the keeper of the Treasury, 

 and in that way is the keeper of the money collected 

 from this tax, just as he is the keeper of other public 

 moneys. The taxes were collected by the tax-collect- 

 ors and paid over to the State Treasurer, that is to say, 

 into the State Treasury, just as other taxes were when 

 collected. The Treasurer is no more a trustee of these 

 moneys than he is of all other public moneys. He 

 holds them, but only as the agent of the State. If 

 there is any trust, the State is the trustee, and unless 

 the State can be sued the trustee cannot be enjoined. 

 The officers owe duty to the State alone, and have no 

 contract relations with the bondholders. They can 

 only act as the State directs them to act, and hold as 

 the State allows them to hold. It was never agreed 

 that their relations with the bondholders should be 

 any other than as officers of the State, or that they 

 should have any control over this fund except to keep 

 it like other funds in the Treasury and pay it out ac- 

 cording to law. They can be moved through the 

 State, but not the State through them. 



The Court concluded its opinion as follows : 



Little need be said with special reference to the suit 

 for mandamus. In this no trust is involved, but the 

 simple question presented is, whether a single bond- 

 holder, or a committee of bondholders, can, by the ju- 

 dicial writ of mandamus, compel the executive officers 

 of the State to perform generally their several duties 

 under the law. The relators do riot occupy the posi- 

 tion of creditors of the State demanding payment from 

 an executive officer charged with the ministerial duty 

 of taking the money from the public Treasury and 

 handing it over to them, and, on his refusal, seeking 

 to compel him to perform that specific duty. What 

 they ask is that the Auditor of State, the Treasurer of 

 State, and the Board of Liquidation may be required 

 to enforce the act of 1874, and " carry out, perform, 

 and discharge each and every one of the ministerial 

 acts, things, and duties respectively required of them, 

 . . . according to the full and true intent and purport 

 of that act." Certainly no suit begun in the Circuit 

 Court for such relief would be entertained, for that 

 court can ordinarily grant a writ of mandamus only in 

 aid of some existing jurisdiction. (Bath County vs. 

 Ames, 13 Wallace, 247 ; Davenport vs. Dodge County, 

 105 U. S. Keports, 242.) Our attention has been called 

 to no case in the State courts of Louisiana in which 

 such general relief has been afforded, and the jurisdic- 

 tion of the Circuit Court was, therefore, in no way en- 

 larged through the operation of the removal acts, even 

 if this is a case which was properly removed a ques- 

 tion we do not deem it necessary now to decide. The 

 remedy sought, in order to be complete, would require 

 the court to assume all the executive authority of the 

 State, so far as it related to the enforcement of this 

 law, 



with any official duty in respect to the levy, collection, 

 and disbursement of the tax in question until the bonds, 

 principal and interest, were paid in full, and that, too, 

 in a proceeding to which the State, as a State, was not 

 and could not be made a party. It needs no argument 

 to show that the political power can not be thus ousted 

 of its jurisdiction and the judiciary set in its place. 

 When a State submits itself, without reservation, to 

 the jurisdiction of a court in a particular case, that ju- 

 risdiction may be used to give full effect to what the 

 State has, by its act of submission, allowed to be done ; 

 and if the law permits coercion of the public officers, 

 to enforce any judgment that may be rendered, then 

 such coercion may be employed for that purpose. But 

 this is very far from authorizing the courts, when a 

 State can not be sued, to set up their jurisdiction over 

 the officers in charge of the public moneys, so as to 

 control them as against the political power hi their 



administration of the finances of the State. In our 

 opinion, to grant the relief asked for in either of these 

 cases would be to exercise such a power. 



Elaborate dissenting opinions were written 

 by Justices Field and Harlan. The former 

 admitted that the common law rule, that the 

 sovereign can not be sued in his own courts 

 without his consent, applies in this country 

 to the State, under which designation are in- 

 cluded the people within its territorial lim- 

 its, in whom resides whatever sovereignty the 

 State possesses. "But they act and speak 

 in this country, at least in times of peace, only 

 through the Constitution and laws. For their 

 will we must look to these manifestations of 

 it. If in that way they consent to suits, either 

 directly against themselves by name or against 

 any of their authorized agents, there can be no 

 reasons of policy or of law against issuing pro- 

 cess in proper cases to bring them or their 

 agents before the court. And if in that way, 

 that is, by their Constitution or laws, they di- 

 rect their officers to do or omit certain things, 

 in the doing or omission of which individuals 

 are interested, and they provide appropriate 

 remedies to compel or enjoin the performance 

 of those things, there can be no reason why 

 such remedies should not be resorted to when 

 private rights are involved." After reviewing 

 the legislative and constitutional enactments of 

 18V4, and the "debt ordinance" part of the 

 Constitution of 1879, Justice Field remarked: 

 " Of course the new Constitution in these pro- 

 visions is a repudiation of the engagements of 

 the act of 1874 and of the constitutional amend- 

 ment of that year, and a direct violation of the 

 inhibition of the Federal Constitution against 

 the impairment of the obligation of contracts." 

 He then said : 



Is this inhibition against the repudiation by the 

 State of her engagements of any efficacy ? The ma- 

 jority of the court answer, " No." I answer, adhering 

 to the doctrines taught by a long line of illustrious 

 judges preceding me, " Yes, it is" ; and, though now 

 denied, I feel confident that at no distant day its power 

 will be reasserted and maintained. In that faith I 

 dissent from the judgment of my associates, and I 

 shall continue to do so on all proper cases, until the 

 prohibition inserted in the Constitution as a banner 

 against the agrarian and despoiling spirit which both 

 precedes and follows a breach of public faith is re- 

 established in its original vigor. 



The question whether the court will restrain the di- 

 version of the funds in the hands of the Treasurer, a 

 member of the Board of Liquidation, is to be consid- 

 ered precisely as though the new Constitution had 

 never been adopted. The inhibition of the Federal 

 Constitution is upon the State, and not merely upon 

 her Legislature. All the authority which her people 

 can confer, whether by constitutional enactment or 

 legislative provision, is subject to the inhibition. Her 

 people are at all times under the Constitution of the 

 United States, subject to its restrictions as they are 

 entitled to its privileges. They can not lawfully in- 

 sert in any constitution or organic law provisions con- 

 travening that instrument. . . . 



If the new Constitution had never been adopted, 

 there could be no question as to the power of the 

 State courts to require that the moneys collected be 

 applied to the pavment of the interest. It would not 

 only have been the duty of the Board of Liquidation 



