State of Louisiana Elliott v. Jumel/Dissent Harlan

by by John Marshall Harlan

United States Supreme Court

107 U.S. 711

State of Louisiana Elliott  v.  Jumel

HARLAN, J., dissenting.

Having a deep conviction that the decision of the court is in conflict with the spirit and tenor of its former decisions, subversive of long-established doctrines, and dangerous to the national supremacy as defined and limited by the constitution, I deem it my duty to dissent from it.

That the bonds and coupons issued by Louisiana, in pursuance of the statute and constitutional amendment of 1874, are contracts within the meaning of that clause of the federal constitution which declares that no state shall pass any law impairing the obligation of contracts; that the provisions in its new constitution, known as the debt ordinance of 1879, were intended to impair, and, if enforced, do impair, the obligation of those contracts; and that such ordinance is, therefore, a nullity as against bondholders who do not accept its terms,-are propositions so manifestly correct as not to require argument in their support. Indeed, I understand the court, substantially, to concede them to be sound. As the constitution of the United States is the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding,' I had supposed that all state action, whether by legislative provision or constitutional enactment, must be disregarded when in conflict with that law. Yet this court holds that it cannot enforce nor restrain the agents of a state from destroying the obligations of her contract with citizens, upon the ground, mainly, that such relief will require them, in the discharge of their official duties, to disobey the orders of what is denominated the supreme political power of that state. The court, it seems to me, in effect, adjudges that the defendants cannot be coerced by the courts of the Union to disregard unllifying enactments of their state, although such coercion, if employed, would only be for the purpose of enforcing the rightful authority of the constitution, It appears upon the very face of these proceedings, and is not to be disguised, that those officers refuse to perform purely ministerial duties, solely because the will of the state is, with them, paramount, and to be obeyed, although thereby they destroy rights guarantied by the supreme law of the land.

To state the proposition in another from: Here are contract rights which, but for the nullifying provisions in the new constitution of Louisiana, the courts (as I will presently show) would unquestionably protect by the process of injunction, and also by mandamus against the officers of the state compelling them to discharge plain official duties, requiring in their performance no exercise of discretion. Now, however, it is determined-if I do not misapprehend the decision that the judicial arm of the nation is hopelessly paralyzed in the presence of an ordinance destructive of those rights, and passed in admitted violation of the constitution of the United States. A state-which 'cannot be viewed as a single, unconnected, sovereign power,' but is a member of the Union under a constitution, the supremacy of which all must acknowledge-assumes to release its officers from the duty of obeying important provisions of that constitution; and this court, it would seem, holds that it has no power, as against such hostile action of the state, and in cases like these, to require those officers to respect private rights guarantied by such provisions.

1. What are the terms of the admitted contract between Louisiana and the holders of the consolidated bonds? By the statute of 1874 a fixed annual tax is levied for the purpose of paying the principal and interest of the bonds authorized to be issued; the revenue therefrom is thereby 'set apart and appropriated to that purpose and no other;' it is made a felony for any officer to divert it from that purpose; the interest tax is declared to be a continual annual tax until the bonds, principal and interest, are paid or redeemed; the appropriation is made a continuing annual one during the same period; and the levy and appropriation, it is declared, shall authorize and make it the duty of the auditor and treasurer and the board of liquidation, respectively, to annually collect the tax, pay the interest, and redeem the bonds until they are fully discharged.

Each provision of the act is declared to be a contract between the state and each holder of bonds; it is made a misdemeanor for any judge, tax-collector, or other officer to abstruct the execution of any part of it, or to fail to perform his official duty; tax-collectors are inhibited from paying over moneys so collected to any other person than the state treasurer; and it is provided that no court or judge of the state shall have power to enjoin the payment of the principal or interest of the bonds or the collection of the special tax therefor.

These provisions were embodied in the constitution of Louisiana, by an amendment adopted in 1874, and, with a view of facilitating the sale of the bonds, provided for in the act of that year, it declares that such issue creates 'a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in nowise impair;' that 'no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the taxes therefor;' that to secure such levy, collection, and payment, the judicial power shall be exercised when necessary; that the tax required for the payment of the principal and interest of such bonds 'shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due; and, lastly, 'that no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.'

With these statutory and constitutional provisions in force, the state issued bonds to the amount of about $12,000,000, and taxes were assessed, collected, and paid over to the state treasurer solely for the purpose of meeting their interest. Of the amount collected to pay coupons maturing January 1, 1880, about $300,000 are in the state treasury. The state officers refuse to apply the mony for that purpose, or to take any steps towards further collections, as enjoined by the statute and constitution of 1874.

2. What has the state done that impairs the obligation of her contracts? By her debt ordinance the coupons falling due the first of January, 1880, are 'remitted' without the consent of creditors, and the interest tax already collected is therein directed to be used exclusively for the payment of the expenses of the state government. Unless the holders of consolidated bonds are paid out of this money, raised for their benefit exclusively, and unless future collections are made as required by the contract, they will be wholly without remedy, and their bonds will cease to have any value. Plainly that ordinance is a breach of the plighted faith of the state. The financial world, as we have seen, was assured by legislative provision and constitutional enactment that what the state officers now propose to do should never be done; that those who took these bonds might rely upon a fixed annual levy to meet the principal and interest; that all money thereby raised should be applied exclusively to that purpose; and that not only the officers of the state should assess, collect, and pay as the contract stipulates, but that the power of the judiciary should be exercised, whenever necessary, to enforce its obligation. These laws, in their substantial provisions, are as binding on the state, and are as much a part of the contract, as if those provisions had been set forth in its stipulations. McCracken v. Hayward, 2 How. 613; Bronson v. Kinzie, 1 How. 311; Walker v. Whitehead, 16 wall. 317; Planters' Bank v. Sharp, 6 How. 327; Edwards v. Kearney, 96 U.S. 607; Louisiana v. New Orleans, 102 U.S. 206.

It cannot be said that the state has any more right by law it impair the obligation of its contracts than it has, by law, to impair the obligation of contracts between individuals. It has long been the settled doctrine of this court that contracts with states are as fully protected by the constitution against impairment by state law as contracts between individuals. Providence Bank v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnall, 10 How. 190; Wolff v. New Orleans, 103 U.S. 358.

3. If the debt ordinance of Louisiana is in violation of the constitution of the United States and therefore a nullity as against the holders of consolidated bonds,-if the latter are entitled by the terms of their contract to be paid out of the moneys collected for their benefit and to have further collections made,-is there any mode, known to the law, by which their rights can be protected? My brethren of the majority answer this question in the negative when they adjudge that no relief whatever can be given in either of these suits. One is a suit in equity commenced in the circuit court of the United States by holders of consolidated bonds to prevent, by injunction, officers of the state from using the proceeds of taxes already raised under the statute and constitution of 1874, for any purpose other than that for which they were collected and paid to the state treasurer. In the other suit, the plaintiffs, holders of consolidated bonds, and citizens of New York, ask a mandamus against the state officers compelling the application of the moneys so collected to the payment of their coupons, and also the collection of taxes to meet future interest as it becomes due.

Some comment is made upon the extended nature of the relief asked by plaintiffs. It is sufficient to remark that the court is never bound to give relief to the full extent demanded; and all relief is not to be denied because more is asked than the court will grant under any circumstances, or in the particular case. And there is no ground, I submit, for the suggestion that granting relief would require the administration, by the court, of the general finances of the state. What should be done, if properly it may be, is, by necessary orders, to prevent the officers of the state from depriving creditors of moneys which by express contract have been set apart and appropriated exclusively to the payment of their claims. There is no obstacle to the payment out of that fund, except the prohibition in the void debt ordinance of 1879. It is admitted that it can be easily ascertained from the accounts how much of the money in the treasury is applicable to this class of debts. Indeed, it appears from the opinion in Newman v. Burke, hereafter referred to, that the treasurer and fiscal agent of Louisiana held within their control, when these suits were commenced, all the moneys raised under the statute and constitution of 1874 to meet the interest falling due January 1, 1880. They have in their hands more than enough to pay the coupons of January 1, 1880, held by the parties now before the court. Further,-a fact most significant in view of the suggestion that these moneys are mingled with other moneys in the state treasury, the interest fund created to pay coupons maturing January 1, 1880, were, by an act of the general assembly of Louisiana, approved January 4, 1882, directed to be invested in United States bonds. Acts La. 1881, p. 50. And it is not pretended that payment from that fund will produce the slightest confusion in the treasurer's accounts, or involve the use of moneys raised for other and distinct purposes. If any confusion ensues from such an application of these moneys, it would be only of that kind which arises when the law prevents a repudiating debtor from misappropriating funds, in his hands, that have been dedicated to a specific purpose.

It is apparently urged, as an obstacle in the way of relief, that plaintiffs do not seek to have the proceeds of these taxes applied specially to the payment of their claims, but ask such orders as will enable all holders of consolidated bonds to participate in the distribution of the moneys raised under the statute and constitution of 1874. Had the application for mandamus sought the application of the moneys solely to pay the coupons held by the plaintiffs, it might, perhaps, have been urged as ground for its refusal that each bondholder had an interest in the fund so created. Boyer v. State Treas. 32 La. Ann. 177. If the relief asked cannot be given for the benefit of all holders of consolidated bonds, there would seem to be no difficulty in restricting payments to such as are actually before the court in person or by representation. It is, however, proper to say that notwithstanding the criticisms made by the court upon the nature and extent of the relief asked, I do not feel authorized to infer from its opinion that relief would be given to the parties before it, had they asked payment only of their coupons. The opinion seems to proceed upon the broad ground that, as Louisiana is not directly suable in its corporate capacity, the courts of the Union cannot reach its agents employed, under its orders, in the work of destroying the contract rights of plaintiffs.

4. The these suits forbidden by the eleventh amendment of the federal constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state? I understand the court, in effect, if not in terms, to hold that they cannot be maintained without violating that amendment.

The first authority cited in support of that view is The Queen v. Lords Com'rs of the Treasury, L. R. 7 Q. B. 387. It appears that by an act of parliament a round sum was appropriated to the crown to be used in paying costs incurred in prosecutions at assizes and quarter sessions in England, formerly paid out of county rates. Bills of costs having been passed by local officers, certain items were disallowed and others reduced by the lords of the treasury. Subsequently a rule went against the latter to show cause why a writ of mandamus should not issue compelling them to pay these bills out of the funds appropriated to the crown for such purposes. The judges, although of opinion that the defendants should be governed by the taxation of the local officers, declined to grant the writ. The question, said COCKBURN, C. J., was 'whether the lords commissioners of the treasury, when this money got into their hands, are bound to apply it as servants of the crown, or as the servants of the parliament who voted the money.' Said BLACKBURN, J.: 'The question remains whether there is any statutable obligation cast upon the lords of the treasury to do what we asked to compel them to do by mandamus, namely, to issue a minute to pay that money; because, it seems to me clear that we have a right to grant a mandamus if there is such a statutory obligation, particularly when the application is made on behalf of persons who have a direct interest in the matter,' etc. Similar declarations were made by the other judges. They all concurred in denying the writ upon the ground that the money was voted, not to named officers to be by them applied to a designated purpose, but as 'a supply to the crown;' that the officers who distributed it for the purposes named acted as servants of the crown, not as servants of parliament; that a suit against those officers was therefore one against the sovereign, whom, said Chief Justice COCKBURN, the court of queen's bench had no power, even in appearance, to command.

It seems to me that case furnishes no support for the suggestion that these are suits against the state, simply because they are brought against its officers. It does not conflict with the proposition that the state treasurer can be compelled to apply the proceeds of these taxes as stipulated in the statute and constitution of 1874, which were his sole authority to receive them. Here there is a statutable obligation upon him to pay the coupons as they matured. And to that is added the obligation imposed by that constitution, which, in terms, declares that the proceeds of taxes collected under the act of that year 'shall be paid by the treasurer of the state to the holders of said bonds, as the principal and interest of the same shall fall due,' without further legislative authority. These obligations remain upon the officer, unless it be that the debt ordinance, although unconstitutional and void, has discharged them. Had parliament, instead of the act involved in the case cited, passed one directly imposing upon the defendants the duty of paying out of moneys appropriated for that purpose a certain class of claims, it is manifest that the court of queen's bench would have compelled them, by mandamus or other process, to perform that duty. In the case supposed there would have been a statutable obligation which the court would not have permitted the defendants to evade on the pretext that they were officers under the crown.

This distinction is well illustrated in Grenville-Murray v. Farl of Clarendon, L. R. 9 Eq. 20. There the plaintiff sought a decree for the value of certain services alleged to have been rendered by him in the diplomatic service. He claimed that he was entitled to be paid out of certain money voted by parliament to the foreign office. Lord ROMILLY, M. R., said:

'It [the money so voted] is not paid in trust for any particular person. The case that was cited was to this effect: that if parliament votes a sum of £1,000 to John Smith, and the treasury devote in their books the payment of that sum to other purposes, then a mandamus will lie to the treasury in order to pay that £1,000 to John Smith. But there is nothing of the sort here. Parliament has merely voted certain sums to her majesty, and of these sums £600,000 are to be applied to the foreign office. The distribution of that amount is left to the officers of the foreign office, to apply in such a manner as is most subservient to her majesty's service and to the due support of the foreign office, and there is nothing whatever to connect the plaintiff with a penny of this money in any aspect. It is impossible for me, therefore, in that state of things, to say that there is any trust for him.' There is another consideration which strengthens this position; that is, the supremacy of the constitution of the United States over state constitutions and state laws. To the duty imposed by the statute and constitution of 1874 upon its officers, there is superadded the duty imposed by the supreme law of the land not to regard as binding any state enactment which impairs the obligation of contracts.

If the case cited from the queen's bench were susceptible of a different construction, it should not have controlling influence. Here no such relations exist between the executive and judicial departments as exist in England between the crown and the courts. This was shown in the elaborate opinion of Mr. Justice MILLER, speaking for the court in the Arlington Case. That was ejectment to recover real estate in the actual possession of officers who claimed it, not in any personal right, but for the United States-property used and occupied as a cemetery for the dead soldiers of the Union. It was contended that a suit against officers of the United States, having for its object to disturb their possession, was a suit against the government. In support of that position numerous cases were cited from the English courts which held that a suit could not be maintained against officers of the crown. But we held that upon such a question but little weight should be given to those adjudications; that there is a vast difference in the essential character of the two governments in reference to the source and depositaries of power; that while in England the crown, the fountain of honor, cannot be disturbed in its possession of property by process directed against its officers or agents, 'under our system the people, who are their subjects, are sovereign;' that 'their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch;' that 'the citizen here knows no person, however near to those in power, or however powerful in himself, to whom he need yield the rights which the law secures to him when it is well administered;' that 'when he, in one of the courts of competent jurisdiction, has established his right of property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.' Said the court further in that case:

'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office, participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.'

In that case the court reaffirms the doctrines of Osborn v. Bank of U.S. 9 Wheat. 738. The latter was a suit to recover moneys which officers of the state of Ohio, in conformity with its statutes, had illegally taken from a bank of the United States. The suit being against the officers of the state, the objection was taken that it could not be sustained without the state itself being a party; that the state could not be sued; consequently, it was argued, the relief prayed-the restoration of the money-could not be granted. But to that objection the court, speaking by Chief Justice MARSHALL-and this language is quoted approvingly in the Arlington Case, [1 SUP. CT. REP. 240,]-said:

'If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested by made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real plaintiff, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversice of the bestestablished principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.'

The decision in that case has not been heretofore questioned in this court. It seems to establish, upon grounds which cannot well be shaken, that a suit against state officers, to prevent a threatened wrong to the injury of the citizen, is not necessarily a suit against the state within the meaning of the eleventh amendment of the constitution; for, said the chief justice, 'the eleventh amendment, which stitution; for, said the chief justice, 'the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against states, is, of necessity, limited to those suits in which a state is a party to the record.' Here the state is not a party to the record. Here, only officers of Louisiana are parties defendants; and the relief asked is that they be required to perform purely ministerial duties imposed upon them by the statute and constitution of 1874, whose provisions, as respects the matters now in issue, are still in force and obligatory, because never affected, modified, or repealed, otherwise than by a debt ordinance, subsequently adopted, conceded to be in conflict with the constitution, and therefore absolutely void.

There are other decisions of this court still more directly in point. The leading one is Davis v. Gray, 16 Wall. 204. In that case it appears that the state of Texas made a grant of lands to a railroad company, upon the basis of which bonds were issued known as landgrant mortgage bonds. They were sold in large numbers, both in this country and Europe. Subsequently the state, by provisions of its statutes and constitution, attempted to repudiate and nullify its contract; and, in pursuance thereof, its officers proposed to issue patents to others for a part of the lands embraced in this grant. Thereupon a suit in equity was instituted in the circuit court of the United States against the governor and land-office commissioner of Texas, to prevent them from issuing patents for the lands or any part of them. The state was, of course, not made a party on the record. The bill was demurred to upon the ground that she could not be sued, and that the suit, being against her officers, was one, within the meaning of the constitution, against the state. The demurrer was overruled, and the relief asked was given.

Touching the question of jurisdiction, the court, speaking by Mr. Justice SWAYNE, stated these principles as having been announced in Osborn v. Bank of U.S.:

(1) That a circuit court of the United States, in a proper case in equity, may enjoin a state officer from executing a state law in conflict with the constitution, or a statute of the United States, when such execution will violate the rights of the complainant. (2) Where the state is concerned, the state should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record. (3) That in deciding who are parties to the suit the court will not look beyond the record. Making a state officer a party, said the court, does not make the state a party, although her laws prompt his action, and the state stands behind him as the real party in interest.

It was in conformity with those doctrines that the relief asked in Davis v. Gray was given. See, also, Vattier v. Hinde, 7 Pet. 263-4; Louisville R. Co. v. Letson, 2 How. 551; 2 Story, Const. § 1685; 1 Kent, Comm. 351.

In part upon the authority of Davis v. Gray and Osborn v. Bank of U.S., this court, in Board of Liquidation v. McComb, 92 U.S. 538, maintained the right of a holder of consolidated bonds to a decree against the officers of the state of Louisiana, who are here defendants, constituting the board of liquidation, preventing the use of such bonds for the payment of a debt due from the state to a levee company. The proposed action of the board was based upon a statute passed March 2, 1875. So that the suit had for its object to prevent state officers, charged with the execution of the latter act, from carrying out its provisions. It never occurred to this court that the suit was, for that reason, one against the state within the meaning of the constitution. Upon the general question whether the defendants, being officers of the state, were amenable to process from a federal court, Mr. Justice BRADLEY, speaking for this court, observed:

'On this branch of the subject the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against state officers by mandamus or injunction are-First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such case, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void. Osborn v. Bank of U.S. 9 Wheat. 859; Davis v. Gray, 16 Wall. 226.'

Upon these grounds the decree of the circuit court was affirmed, so far as it prohibited the debt due the levee company from being funded in consolidated bonds. Such use of them was deemed an impairment of the contract rights of those who were entitled to receive them.

It seems to me impossible, in view of our decision in McComb's Case, apart from previous decisions upon which it was founded, to hold that these suits are forbidden by the eleventh amendment of the federal constitution. In that case we have adjudged that there is power in the courts of the Union, in a suit by an individual against state officers, to prevent them, in execution of an unconstitutional statute, from using these consolidated bonds for purposes inconsistent with the contract under which they were issued. In these cases it is determined that those courts are powerless, in suits against such officers, to prevent the misapplication of moneys collected for the purpose of meeting the interest on those bonds; and this, in part, upon the ground that the relief asked will require the officers, who have charge of those moneys, to disregard the confessedly void orders of the supreme political power of the state.

It may be asked, when before has this court found the unconstitutional mandate of a state to be an obstacle in the way of compelling her officers to respect rights of contract, the obligations of which are protected against impairment by any law of the state? Of what value is the contract clause of the federal constitution if it cannot be enforced against hostile provisions of a state constitution? This court said, in Dodge v. Woolsey, 18 How. 360, that 'a change of constitution cannot release a state from contracts made under a constitution which permits them to be made;' in Jefferson Branch Bank v. Skelly, 1 Black, 448, that a contract between Ohio and a bank in that state 'was entitled to the protection of the constitution of the United States against any law of the state of Ohio impairing its obligation;' in Railroad Co. v. McClure, 10 Wall. 515, that 'the constitution of a state is undoubtedly a law,' within the meaning of the contract clause of the constitution, and that 'a state can no more do what is thus forbidden by one than by the other-there is the same impediment in the way of both;' in White v. Hart, 13 Wall. 652, that 'it is well settled by the adjudications of this court that a state can no more impair the obligation of a contract by adopting a constitution than by passing a law-in the eye of the* constitutional inhibition they are substantially the same thing;' and in Gunn v. Barry, 15 Wall. 625, that the constitution of the United States 'is above and beyond the power of congress and the states, and is alike obligatory upon both; a state can no more impair an existing contract by a constitutional provision than by a legislative act; both are within the prohibition of the national constitution.'

Why should these established doctrines of the court be overruled, as, for all practical purposes, they are, by the judgment this day rendered? The constitution declares that it shall be the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.' Its mandate, in that respect, is addressed alike to the judges of the federal and state courts, for it declares that 'the judges in every state shall be bound thereby.' And, as is said in Dodge v. Woolsey, 'to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that its binding force upon the states and the members of congress should be unmistakable, it is declared that 'the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by an oath or affirmation to support this constitution.'

Nor can I agree that the officers of the state-if the relief here asked be granted-cannot be protected against any subsequent action of the state. If proceeded against because of their compliance with the judgments of the courts of the Union, the suit can ultimately be brought here for review.

Upon the general question of the power of a circuit court to grant a mandamus against state officers, there are some propositions announced by the court which should be examined. The fact is mentioned that the coupons held by plaintiffs have not been reduced to judgment, and it is said that a circuit court, in exercising its original jurisdiction, can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. As the state cannot be sued as a party defendant, to say that a judgment for the amount of the coupons is a condition precedent to a mandamus is only another form of saying that there is no remedy whatever to prevent the misapplication of the moneys raised under the contract and by virtue of the statute and constitution of 1874. The demands of the plaintiffs are not disputed, except upon the ground that the debt ordinance has assumed, without the consent of the state's creditors, to remit the interest falling due January 1, 1880, and to divert the funds raised to meet it. The genuineness of the bonds and coupons is not questioned. The case, therefore, comes within the rule, explicitly laid down in McComb's and other cases, that mandamus will lie to compel the performance by a public officer of a plain ministerial duty, requiring no exercise of discretion. Such a remedy is absolutely essential for the protection of the rights here claimed.

Upon this question, reference is made by the court to Bath Co. v. Amy, 13 Wall. 247, and Davenport v. Dodge Co. 105 U.S. 242. In the first of those cases it was decided that a circuit court had no power, under the act of 1789, to issue a writ of mandamus except where necessary or ancillary to the exercise of its jurisdiction. And that doctrine was reaffirmed in Davenport v. Dodge Co., upon the authority of Bath Co. v. Amy, but without any question being raised in the former case as to the power of a circuit court to issue writs of mandamus since the act of March 3, 1875. It will be found that the decision in Bath Co. v. Amy was based upon McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 601; and Kendall v. U.S. 12 Pet. 584.

In McIntire v. Wood a circuit court was held to have authority to issue such writs only when necessary to the exercise of its jurisdiction. But it was said:

'Had the eleventh section of the judiciary act [the one declaring what suits shall be within the original cognizance of circuit courts] covered the whole ground of the constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under the laws of the United States, and the fourteenth section of the same act would sanction the issuing of the writ for such a purpose. But although the judicial power of the United States extends to cases arising under the laws of the United States, the legislature have not thought proper to delegate the exercise of that power to its circuit courts, except in certain specified cases.'

In Kendall v. U.S. the previous cases were held to decide that the writ was appropriate to compel the performance of a ministerial act, necessary to the completion of an individual right arising under the laws of the United States. 12 Pet. 616, 617. In all the cases prior to Bath Co. v. Amy the want of power in a circuit court to issue the writ, in the first instance, and in advance of a judgment establishing the rights of the parties, was put distinctly upon the ground that the whole judicial power of the United States had not been delegated to the circuit courts. In Kendall's Case, however, the power of the circuit court, in the District of Columbia, to compel the postmaster general by mandamus to perform a duty enjoined by an act of congress, was sustained, because, differently from the circuit courts in the several states, its jurisdiction then extended to all cases in law or equity arising under the laws of the United States. Now, it is apparent that the act of March 3, 1875, supplies what was said in McIntire v. Wood and McClung v. Silliman to be wanting. It substantially 'covers the whole ground of the constitution.' It invests the circuit courts of the United States with original jurisdiction, and with jurisdiction by removal from the state courts, of all suits at law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or in which the United States are plaintiffs or petitioners; or in which there is a controversy between citizens of different states; or a controversy between citizens of a state and foreign states, citizens, or subjects; or a controversy between citizens of the same state claiming lands under grants of different states.

It seems to me entirely clear that since the enlargement, by the act of March 3, 1875, of the jurisdiction of the circuit courts, they have power, in the first instance, and in advance of a judgment to issue a writ of mandamus, to compel the performance of purely ministerial acts, requiring no exercise of discretion, and which are necessary to the protection or completion of an individual right arising under the constitution or laws of the United States. Unless the circuit court can interfere, by injunction, to prevent the officers of the state from doing what they propose to do, and, by mandamus, to compel them to perform the ministerial acts required by the statute and constitution of 1874, then its new and enlarged jurisdiction is of no practical value in any case where a state determines to repudiate its contracts and to enforce ordinances impairing their obligation. The power has always existed in those courts to issue such writs, not specifically provided by statute, as 'may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' 1 St. 81, 334; Rev. St. § 716. Jurisdiction to hear and determine a suit arising under the constitution and laws of the United States carries with it the power to issue either a writ of mandamus or a writ of injunction, or both, when essential to the protection and enforcement of rights involved in that suit. In such cases the writ is, in every legal sense, not simply necessary, but vital to the exercise of the jurisdiction granted.

It must also be observed that the mandamus suit was commenced in an inferior court of the state, and thence removed into the circuit court of the United states. If the power of the latter depended upon the question whether the state court could, by mandamus, compel a state officer to perform plain official duties imposed by law, the writ should go. This court, I submit with great confidence, is in error if it means to say that Hart v. Burke, 33 La. Ann. 498, decides, or that the supreme court of Louisiana has ever decided, that the courts of that state cannot, under any circumstances, compel the officers of the state, by mandamus, to perform plain official duties requiring no discretion. The state Code of Procedure expressly declares that the writ 'may be directed to public officers to compel them to fulfill any of the duties attached to their office, or which may be legally required of them.' Section 834. It is, I think, clear that, but for the debt ordinance that court would have sustained the writ in Hart v. Burke, and compelled the state officers to obey the statute and constitution of 1874. What that court adjudged was that while an* officer could not plead the authority of an unconstitutional statute as a justification for the non-performance or violation of his duty, it was different where the authority is an article in the state constitution. Upon that ground alone the writ was refused in Hart v. Burke.

That I do not misinterpret that case is clear from Newman v. Burke, etc., determined in April, 1882. Newman, holding warrants on the general fund of the state for 1880 and 1881, claimed that by virtue of the debt ordinance he was entitled to be paid out of moneys in the hands of state officers, collected under the statute and constitution of 1874, and by that ordinance directed to be transferred to the general fund. He obtained by the judgment of the supreme court of the state an order for a mandamus against the state treasurer and fiscal agent, directing them to conform their books to the requirements of the debt ordinance, subject, however, to the right and duty of those officers 'to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S. J. Hart and John Elliott et al., * * * in case judgment should be rendered in their favor in the judicial proceedings instituted by them, and now pendin the supreme court of the United States.' So that they only await the final determination of these suits to ascertain whether they can safely execute a state ordinance in conflict with the federal constitution.

The state court, affirming the doctrines of Hart v. Burke, said:

'Inasmuch as no court can ever acquire jurisdiction over a state, or to enforce a contract of a state against her will, it follows that no court can ever have power to decree the invalidity of any provision of the state constitution, on the ground that it impairs the obligation of such a contract. But unless the court may decree the nullity of such a provision, on such a ground, it follows that it cannot compel the officers of the state to do anything in violation thereof, because the constitution of the state is their exclusive mandate, and absolutely binding on them.'

This language needs no interpretation. While the federal constitution declares that it shall be the supreme law of the land, anything in the constitution of any state to the contrary notwithstanding, the supreme court of Louisiana holds that, in the matter of state contracts, her constitution is the exclusive mandate to, and absolutely binding upon, her officers, anything in the constitution of the United States to the contrary notwithstanding. And I take leave to say, with all respect for my brethren, that the decision this day rendered can be sustained upon no other ground. But in vain has this court repeatedly adjudged that a suit against the officers of a state or enforce the performance of plain official duties is not necessarily one against the state, within the meaning of that constitution; in vain has it often decided that contracts with states are as fully protected by that constitution as are those between individuals, and that a state can no more impair an existing contract by constitutional provision than by a legislative act; in vain have the circuit courts of the United States been invested with jurisdiction of all suits arising under the constitution and laws of the United States; in vain does that constitution declare that it shall be the supreme law of the land, binding upon the judges in every state, if it be true, as determined by the supreme court of Louisiana, that no court can ever have power to decree a provision of a state constitution invalid on the ground that it impairs the obligation of contracts with that state, or to compel state officers to disregard such invalid provision.

As further evidence that the state court recognizes the right to a mandamus compelling, state officers to discharge ministerial duties, imposed by provisions of the debt ordinance, I refer to Eucyer v. Burke, reported in the same volume with Hart v. Burke, 33 La. Ann. 969. Eucyer was the owner of certain consolidated bonds, issued under the act of 1874. He concluded to accept the provisions of the debt ordinance of 1879, and, in conformity therewith, applied to the state treasurer to have his bonds stamped, so as to show that he acceded to the reduction of interest made by that ordinance. The state treasurer declining to comply with this request, an application was made to an inferior state court to compel him to stamp the bonds. His refusal to comply with the relator's demands was based in part upon a statute passed in 1880, (after the debt ordinance went into operation,) which declares that no bond shall be stamped until the coupons of January, 1880, were surrendered. That the relator did not do. Mandamus was refused by the inferior court, but the supreme court of Louisiana, after deciding that the act of 1880 was inoperative, because in conflict with the debt ordinance, said:

'In his answer defendant alleges that the service required of him by relator is not a ministerial duty, and that the judiciary has no control over the executive and co-ordinate branches of the government, except as regards purely ministerial duties of executive officers. As regards the first proposition, we decide that the service required in this case is the performance of a purely ministerial duty, and this is too plain to require argument. As to the second proposition, it is elementary; but, while fully recognizing the independence and all the rights of the co-ordinate branches of the government, it is only necessary to say that it is the province and duty of the judiciary, whenever the question is properly brought before it in judicial proceedings, to decide whether duties sought to be enforced at the hands of officers are or are not ministerial, and it is of the essence of the judiciary to adjudge such questions, as otherwise those officers would themselves, by their own decision, be judge of their legal and constitutional powers.'

The judgment of the lower court was reversed, and the mandamus ordered to be issued, at the cost of the state treasurer in both courts.

Thus it is shown that the same court which determined Hart v. Burke has decided that the courts of Louisiana have power, by mandamus, to compel an officer of the state to discharge ministerial duties, requiring in their performance no discretion upon his part; especially when necessary to enforce a provision in the state constitution in conflict with the constitution of the United States.

It would seem, then, the holders of the consolidated bonds of Louisiana are in this anomalous condition: While the state courts, because of the debt ordinance in the new constitution, will not, by mandamus, compel its officers to perform the purely ministerial duties imposed by the statute and constitution of 1874, but will, by using that writ, require those officers to execute the provisions of that ordinance, although it is in conflict with the federal constitution, the courts of the United States, though now invested with jurisdiction of all suits arising under the constitution and the laws of the United States, are, it seems, without power to compel those officers to respect the inhibition in the supreme law of the land against state laws impairing the obligation of contracts. Such are the results which follow from the action of the supreme political power of a state whose officers, sworn to support the constitution of the United States, are required by the state court to look to the state constitution as their 'exclusive mandate and absolutely binding on them.'

My own conclusions are: That the officers of Louisiana cannot rightfully enforce provisions of its constitution which conflict with the supreme law of the land, and the courts of the Union should not permit them to do so; that but for the adoption of the unconstitutional debt ordinance of 1879, and whether the suits were in a state court or in the circuit court of the United States, these state officers would have been restrained by injunction from diverting the funds collected to meet the interest on the consolidated bonds, and would have been compelled, by mandamus, to perform the purely ministerial duties enjoined by the statute and constitution of 1874; that if by existing laws the circuit court of the United States has no power to issue such writs, still, upon the removal of the mandamus suit from the state court, the former had power to do what the state court could legally have done had there been no removal, viz., make peremptory the alternative mandamus granted at the beginning of the suit by the inferior state court; that the debt ordinance being void because in conflict with the constitution of the United States, furnishes no reason whatever-least of all in the courts of the Union-why the relief asked should not be granted by any court of proper jurisdiction as to parties; that to refuse relief because of the command of a state to its officers to do that which is forbidden, or refrain from doing which is enjoined, by the supreme law of the land; or to give effect, for any purpose, in the courts of the Union, to the orders of the supreme political power of a state, made in defiance of the constitution of the United States,-is, practically, to announce that, so far as judicial action is concerned, a state may, by nullifying provisions in its fundamental law, destroy rights of contract, the obligations of which the constitution declares shall not be impaired by any state law. To such a doctrine I can never give my assent.

I am, therefore, unable to concur in the opinion and judgment of the court.