Hagood v. Southern

delivered the opinion of the court. After stating the cáse as above reported, he continued:

No specific provision is made in these decrees for the redemption of the revenue bond scrip in which the assignees of the Blue Ridge Railroad Company claim an interest, nor any direction to the treasurers of the counties in which its taxes are due to receive the scrip in payment therefor from the company; but the command of the decrees is broad enough to include such relief in their favor. But; it is difficult to conceive on what theory of the relation between the railroad company and the State it can be maintained. . The revenue bond scrip was issued by the State in exchange for the bonds of the railroad company guaranteed by the State, and in order that by

No other parties to these suits, including those who have merely proved their claims before the master under the order of reference, have made any tender of revenue bond scrip in-payment of specific taxes due from them; and, so far as the contract is that such payment may be made, no breach is shown. The discredit cast upon the scrip by the general refusal- to accept it by the tax collectors' of. the State, and the depreciation in value occasioned thereby, are not actionable injuries. In this aspect, the case falls precisely within that of Marye v. Parsons, 114 U. S. 325 , and does not materially differ from the case as made on the previous bill of Williams, and decided in Williams v. Hagood, 98 U. S. 72 . So far as the instrument contains a promise that it will be received in payment, of taxes, • it is a contract with the holder for the time being, who has taxes to pay; and although such a stipulation, faithfully executed, would give commercial value to the paper, in whosesoever hands it may happen to be, it cannot be said, as a matter of law, that the contract is broken, until it has been tendered for taxes due from a holder and been refused, nor that the legal

But it is urged, with earnestness and zeal, that the complainants, Williams and Wesley, are entitled to so much of the relief prayed for as in effect would operate to compel the comptroller-general of the State to execute in their favor the provisions of the act of March 2, 1872, relating, to the levy, collection, and application of the tax pledged by the fourth section of that act to the redemption of the revenue bond scrip. The ground on which that relief is based, of course, is, that the act of March 2, 1872, must still be regarded as subsisting, notwithstanding the subsequent formal repeal by the Legislature; which must be treated as null and void, because it impairs and destroys the obligation of the contract between the holders of these certificates of indebtedness and the State of South Carolina. Treating the repealing acts, then, as of no force, the inference is drawn that the duty of the officers of the State remains, as declared and defined by the act of March 2, 1872, and its performance may be enforced by judicial process in behalf of every one having a legal interest in the subject.

Tt is to be borne in mind, however, that the State of South Carolina denies the .existence and validity of the alleged contract. It asserts that the revenue bond scrip was issued in violation of the Constitution of the State, which provides, Art. IX., sec. 7, that public debts may be contracted for the purpose of defraying extraordinary expenditures; sec. 10, that no scrip, certificate, or other evidence of State indebtedness, shall be issued, except for the redemption of stock, bonds, or other evidences of indebtedness previously issued ; and sec. 14, that any debt contracted by the State shall be by loan on State bonds, of amounts not less than $50 each, .on interest, payable

It thus appears that a distinct issue is made by the State of South Carolina with the holders of this revenue bond scrip, and the controversy, between them and the State involves the very question of the existence and obligation of the alleged contract. This controversy the State has undertaken to settle for itself. By its legislative department, it has repealed the statutes authorizing its officers to execute the contract on its behalf, and forbidden the levy, collection, and appropriation of taxes for the payment of the scrip. Through its judicial department it has declared as between itself and its officers, that the instruments themselves are. unconstitutional and void, and without obligation. To this judgment, however, no holder of the scrip was a party, and, of course, it concludes no one.

The peculiarity of the alleged contract deserves to be noted. The instrument, looked at as the sole evidence of the obligation, contains no promise whatever to pay money. It declares simply that it is receivable for the amount of money named, in payment of taxes and dues to the State, except special tax to pay interest oft public debt. If it be read as containing the law which authorized its issue, it is a contract that it shall be redeemed, one-fourth of the whole amount each year, out of taxes specially to be levied for that purpose. Although

The controversy in which the validity and obligation of the scrip are involved is the subject of the present suits. The com-' plainants as holders of this scrip, in behalf of themselves and of all other holders choosing to take' part, are seeking to obtain by judicial process its redemption by the State, according to the terms of the statute in pursuance of which it was issued, by the levy, collection, and appropriation of special taxes pledged to that purpose, as they claim, by an irrepealable law, consti- . tuting a contract protected from violation by the Constitution of the United States. And such are the decrees which have been rendered according to the prayer.of the bills. These suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the State is not in name made a party defendant, though leave is given to it to become such, if it chooses; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the-actual'party to the alleged contract- the performance of which is decreed, the one required' to perform the decree, and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged .contract by the State. The State is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefor^, substantially within the prohibition of the Xlth amendment to the Constitution of the United States, 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

The case comes thus directty within the authority of Louisiana v. Jumel, 107 U. S. 711 . It was there said: “ The question, then, is whether the contract can be enforced, notwithstanding the Constitution, by coercing the agents and officers of the State, whose authority has been withdrawn in violation of the contract, without the State itself in its political capacity being a party to the proceedings. The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done.” p. 721. And: “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, and to supervise the conduct of all persons charged 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 in 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 cannot 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 jurisdiction majr 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 maj^ be rendered, then such ..coercion may be employed for that purpose. But this is very far from authorizing the courts, ■when a State cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power, in their administration of the finances of the State.” p. 727.

In the present cases the decrees were not only against the defendants in their official capacity, but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office.

The principle which governs in these cases must be carefully distinguished from that which ruled in Osborn v. Bank of the United States, 9 Wheat. 738 ; Davis v. Gray, 16 Wall. 203 ; Board of Liquidation v. McComb, 92 U. S. 531 ; and Allen v. Baltimore & Ohio Railroad Co., 114 U. S. 311 ;-a distinction which was pointed out in Louisiana v. Jumel, ubi supra, and in Cunningham v. Macon & Brunswick Railroad Co., 109 U. S. 446 . The rule for such cases was well stated by Mr.- Justice Bradley in Board of Liquidation v. McComb, ubi supra, as follows: “ 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 ma}r 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

A broad line of demarcation separates from such cases as the present, in which the decrees require, by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the State in its political capacity, those in which actions at law-or. suits in equity are maintained against defendants who, while claiming to act as officers of the State, violate and invade the personal and property rights of the plaintiffs, under color of authority, unconstitutional and void. Of such actions at law for redress of the wrong, it was said by Mr. Justice Miller, in Cunningham v. Macon & Brunswick Railroad Co., ubi sup.: “ In these cases he is not sued as or because he is the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defence he must show that his authority was sufficient in law to protect him.” p. ,452. Of such cases that of United States v. Lee, 106 U. S. 196 , is a conspicuous example, and it was upon this ground that the judgment in Poindexter v. Greenhow, 114 U. S. 270 , was rested.

The defendants in the present cases, though officers of the State, are not authorized to enter its appearance to the suits and defend for it in its name. The complainants are not entitled to compel its appearance, for the State cannot be sued without its consent. And the court cannot proceed to the determination of a cause and controversy, to which the State is an indispensable party, without its presence. This, however, the Circuit Court has in fact done; and its decrees undertake to dispose of ■the matter in controversy, and enforce the judgment of the court against the State through its officers, in a suit to which it is not a party.' The suggestion that it has had the opportunity and the invitation to appear is immaterial, for it has a constitutional right to insist on its immunity from suit. For these reasons

The decrees of the. Circuit Court are reversed, and the causes • are-remanded, with instructions to dismiss the'Mils of complaint.

Mr. Justice Field and Mr. Justice Harlau, while adhering to the views expressed by them in their dissenting opinions in Louisiana v. Jumel, 107 U. S. 726 , 748, admit that the doctrines of that case require a reversal of the judgment in this case.