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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. Cockburn, C. J., said: "The question comes to be, whether the Lords Commissioners of the Treasury, when this money gets into their hands, are bound to apply it as servants of the Crown, or as the servants of Parliament who vote the money." Blackburn, J., said: “The question remains, whether there is any statutable obligation cast upon the Lords of the Treasury to do what we are 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." 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 that 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 of the Crown.
This distinction is well illustrated in Grenville-Murray v. Earl of Clarendon, Law Rep. 9 Eq. 11. There the plaintiff sought a decree for the value of diplomatic services alleged to have been rendered by him. 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."
I refer also to Rex v. Lords Commissioners of the Treas
ury, 4 Ad. & El. 286. That was an application for a mandamus against the defendants, who had authority by statute to grant a certain "superannuation allowance." Sir J. Campbell, attorney-general, contended that it was against principle that the court should order a mandamus in the name of the King, directing the King to pay money. But the mandamus was granted. Lord Denman, C. J., said: "If, then, this is only the case of public officers having the control of a sum of money for this particular purpose, there is no reason that a mandamus should not issue. They are officers under the Crown; but the Crown has no more to do with them for this purpose than any other officers. They are merely parties who have received a sum of money as trustees for an individual under the provisions of an act of Parliament. . . . Here it only appears that a sum of money has been voted as an allowance to an individual, which sum they have, and refuse to pay."
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 fundamental 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 the construction put upon it by this court, 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 United States v. Lee, 106 U. S. 196. 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 dead soldiers of the Union. It was contended that a suit against the officers, 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 there 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 the United States, 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 ap
provingly in United States v. Lee, 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 be 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 principal, 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 subversive of the best-established 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 Chief Justice Marshall, "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, officers of Louisiana only 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. 203. In that case it appears that the State of Texas made a grant of