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half. For example, in Cunningham v. Macon & Brunswick RR. Co., which was a bill of foreclosure by holders of certain railroad bonds against a railroad, and where it was attempted to set aside a sale to the State of Georgia, which had bought the road at receiver's sale on a prior mortgage, the Governor and Treasurer being joined as parties, the proceedings were dismissed on the ground that, without reference to the question of the Governor and Treasurer representing the State, the State was a necessary party, and therefore no decree could be made for the plaintiff, inasmuch as the State was not suable.

The cases of New Hampshire v. Louisiana and New York v. Louisiana (1882), 108 U. S. 76, are interesting illustrations of a phase of the doctrine that whether or not the State is a party is to be determined from all the facts, and not merely from the appearance of the record as to the nominal parties. Certain of the bonds sought to be recovered upon in Louisiana v. Jumel were assigned to the States of New Hampshire and New York, who then brought suits in the Supreme Court, invoking its original jurisdiction on the ground that the suits were controversies between States. The Court found, however, that the States, plaintiffs, had no interest of their own in the controversy, but were only nominal parties, the individual bondholders being the real parties behind them, and declined jurisdiction.

The latest cases where jurisdiction has been declined on the foregoing principles are North Carolina v. Temple (1890), 134 U. S. 22, and New York Guarantee Co. v. Steele (1890), Id. 230, in the former of which it was sought to compel the Auditor of North Carolina and the State herself to levy a special tax for the benefit of certain holders of State bonds, and in the latter a similar suit was brought against the State Auditor of Louisiana alone, but without joining the State. The actions were of course held not sustainable.


The most satisfactory attempt at classification of the cases where jurisdiction is entertained, is that of Justice MILLER

in Cunningham v. Macon & Brunswick RR. Co. He observed that there are at least three classes of cases where the State, although affected by the decision, is not a necessary party so as to defeat jurisdiction—

(1.) The Court will determine the rights of the parties to suits as to property of the State, or property in which the State has an interest, so long as it is not necessary to take property forcibly from the possession of the government.

(2.) The Court takes jurisdiction against individuals sued in tort for acts injurious to the persons or property of others, although their defence is that they acted under the orders of government.

(3.) The Court enforces the performance and enjoins the violation of ministerial duties of public officers.

The illustrations given of the first of these classes are, The Siren (1868), 7 Wall. (74 U. S.) 152, 157; The Davis (1869), 10 Wall. (77 U. S.) 15, 20, and Clark v. Barnard (1882), 108 U. S. 436, in each of which the government appeared as claimant to a res, and it was held the rights of the parties, including that of the government, would be determined, even though the event would be to deprive the government of rights of property claimed by it.

The Siren was a condemnation proceeding by the United States in a prize court, to secure a prize captured at sea. The owner of a vessel damaged by the prize in proceeding to port, was allowed to intervene and get his damages from the fund going to the captors. In The Davis, a claim of lien for salvage against the United States was enforced. The government having apparent right of property in a cargo of cotton, but to obtain possession being obliged to appear as a claimant in court, the lien for salvage by an individual was considered in the same proceeding. In Clark v. Barnard, the State of Rhode Island appearing as a claimant to a fund in court, assignees in bankruptcy of other parties claiming the fund were allowed to file a bill in equity against the State Treasurer to restrain him from collecting it.

A number of illustrations of the second of the above classes are given by Justice MILLER, and several more of

peculiar interest have occurred since his classification in Cunningham v. Macon & Brunswick RR. Co., the most notable being the Virginia Coupon Cases (1884), 114 U. S. 269.

In Mitchell v. Harmony (1851), 13 How. (54 U. S.) 115, and Bates v. Clark (1877), 95 U. S. 204, trespass against officers of the United States army for seizing plaintiff's goods was sustained, and the official capacity of the defendants was not regarded in determining jurisdiction. Similarly, in Meigs v. McClung (1815), 9 Cr. (13 U. S.) 11; Wilcox v. Jackson (1839), 13 Peters (38 U. S.) 498; Brown v. Huger (1858), 21 How. (62 U. S.) 305; Grisar v. McDowell (1867), 6 Wall. (72 U. S.) 363, and United States v. Lee, actions of ejectment were maintained against United States officers for land occupied by them in their official capacity. As early as 1809 the Supreme Court, it will be remembered, decided the interesting case of United States v. Peters, 5 Cr. (9 U. S.) 115, where a mandamus was required to be issued to the representatives of David Rittenhouse, the Treasurer of Pennsylvania, commanding them to pay to certain libellants the proceeds of the sale of a vessel to which it had been decided the latter were entitled. It was held that the State Treasurer or his representatives, sued individually for detention of moneys, could not shelter themselves behind the State's immunity from suit, when the moneys were never in the possession of the State. In Poindexter v. Greenhow, it was held that detinue by a coupon. holder lay against a State Treasurer who under the direction of one of the repudiating acts of Virginia had seized property of the former in payment of taxes after he had tendered him tax receivable coupons. In White v. Greenhow and Chaffin v. Taylor, decided at the same time, actions of trespass d. b. a. were sustained for offenses of the same character as in Poindexter v. Greenhow. And in Allen v. Baltimore and Ohio Railroad Co., immediately following, an injunction was sustained against State officers to prevent them from distraining upon the property of a railroad com

pany to collect taxes, after tender in payment and refusal of tax receivable coupons.

When the judgment in the case of In re Ayers was first announced, it was hastily supposed by some that Poindexter v. Greenhow had been in effect overruled. This supposition was removed upon examining the later case, when it was found that an important and valuable distinction had been made which, upon reflection, was seen to arise naturally between the cases. This distinction was found in the proposition that defence was the limit of redress by the individual against unconstitutional proceedings on the part of State officers. Resistance by pleading to actions of the government, or by bringing detinue to restore, or injunction to preserve, the status quo, or by bringing trespass for illegal interference with property under color of law, was shown to be a different thing from attempting in advance to prevent the State from suing at law, and its officers from obeying its demands up to the point of interference with the personal or property rights of the citizen in violation of the State's contract. In the very recent case of McGahey v. Virginia, 135 U. S. 662, decided in May, 1890, the Court reviewing all the previous decisions growing out of the Virginia repudiating acts, united for the first time to declare the distinctions made by the majority in Poindexter v. Greenhow, and In re Ayers. The language of Justice BRADLEY, speaking for the Court, while specifically referring to the Virginia acts under consideration, is sufficiently general in its application to be quoted at length as the final judgment of the Court upon the limits of actions by individuals against government officers in this class of cases. He says:

No proceedings can be instituted by any holder of said bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the State. Any lawful holder of the tax-receivable coupons of the State issued under the Act of 1871 or the subsequent Act of 1879, who tenders such coupons in payment of taxes, debts, dues and demands due from him to the State, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vin

dicate such right in all lawful modes of redress-by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremediable injury, or by a defence to a suit brought against him for his taxes or the other claims standing against him.

The early case of Osborn v. The Bank is now sustained on the above principles. The property of the Bank, having been seized under an unconstitutional statute, and, in violation of an injunction, having been placed in the treasury of the State, the officers who had committed the offense were required, as individuals, to restore it. The cases of Dodge v. Woolsey (1855), 18 How. (59 U. S.) 331; Mechanics' & Traders' Bank v. Debolt (1855), Id. 380, and Jefferson Branch Bank v. Skelley (1861), 1 Black (66 U. S.) 436, also belong to this class, although the question of the State's immunity from suit was not raised in them.

The third class of suits against State officers, which are not regarded as suits against the State, embraces that considerable body of cases against public officers involving the performance of their ministerial, as distinguished from their executive, duties. Among these, the most familiar are writs of mandamus against cabinet and other officers. The wellknown cases of Marbury v. Madison (1803), 1 Cr. (5 U. S.) 137; Kendall v. U. S. (1838), 12 Pet. (37 U. S.) 524; U. S. v. Schurz (1880), 102 U. S. 378; Butterworth v. U. S. (1884), 112 Id. 50, and U. S. v. Black (1888), 128 Id. 40, belong to this class. Mandamus for the performance of ministerial duties may issue against every public officer, except, perhaps, the chief executive, when application is made in the courts of the government of which his is one of the branches. His exemption from amenability to process in such cases, is not that the suit against him is considered as brought against the State, but that, as one of the three coordinate branches of government, his department is independent of the judicial department as to all matters involving the conduct of his office. (See for a consideration of this subject at length, AMERICAN LAW REGISTER, N. S., Vol. XXVIII, note pp. 350-358).

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