c135:

Billings, D. J.,
dissenting. In the case of Elliott v. Nicholls I gav6 my reasons fully why the court had no jurisdiction over a cause similar to this. After a review of the authorities I distinguished that case from those cognizable by the courts, and stated my conclusion as follows:
“In the case of Osborn v. Bank, 9 Wheat. 738, the court issued an injunction to protect a bank and its vaults from trespass; in the case of Davis v. Gray the writ was granted to protect the owner of a tra,ct of land from having his title clouded by wrongful location of warrants upon it; in McComb v. Board the court, at the instance of the holders of certain bonds, restrained the members of a board of liquidators from injuriously affecting their value, in violation of the contract under which they had been accepted, by issuing similar bonds to parties not entitled thereto; and in the ease of the Louisiana State Lottery Co. v. Fitzpatrick, 3 Woods, 222, at the last term, this court issued an injunction to protect from destruction the franchise of a corporation and their rights of property vested under a legislative grant. It is true that in all these cases the parties restrained were officers of a state, acting under a law of a state which impaired the obligation of a contract, and was therefore unconstitutional and void. But in all these cases the thing which was sought to ho protected was by law subject to the control of the courts. The principle controlling all these cases was that courts will enjoin or command those who are acting* under a void law as if there was no such law. The limitation which this case gives rise to is not to the principle, but to the authority of courts to apply it. The insuperable obstacle lies in the exclusive control which, by the constitution and laws of the state of Louisiana, is vested in its auditor and treasurer over the fiscal administration of the state, and the incompetency of courts of justice to exercise jurisdiction over it.
“The court has not attempted to determine any question pertaining to the morality or the statesmanship involved in the matters presented by this bill of .complaint. I simply find that the judicial authority does not embrace this cause.”
In this case the hill is substantially the same as that in the Elliott Case. The averments may be concisely stated as follows: The state of Louisiana, in the year 1874, by legislative act and constitutional amendment, authorized the issuance of coupon bonds to redeem its outstanding indebtedness, and appropriated certain revenues to pay the maturing coupons. Some of the revenues so appropriated had been collected, and were held in the treasury of the state, when the state, by its new constitution, directed that they should be destined to another purpose, and they were delivered by the officers of the old treasury to those of the new treasury under the mandate of the new constitution, under which the latter officers were elected.
It is to these funds in the treasury of the state that the complainants claim a title, and they ash from the court an injunction that the treasury officers be restrained from giving effect to the destination of these funds in the treasury of the state in accordance with the constitution of the state, because they say it is a violation of the hypothecation which the state made to them.
The constitution of the state limits taxation to six mills on the dollar; and it is palpable that the enforcement of the complainants’ claim will affect the ability of the state to provide funds for the maintenance of its levees, and its schools, its police and sanitary measures.
The complainant asks this court to deal with moneys in the treasury of a state, and to compel the observance of an appropriation of moneys so in the treasury of a state in spite of the state’s expressed purpose to recede altogether from her promise and appropriation, and to use the moneys so in her treasury for the ordinary governmental purposes.
Chief Justice Marshall states in Georgia v. Madrazo, 1 Pet. 122, that in U. S. v. Peters, 3 Dallas, 121, the court laid down the principle that the courts of the United States are bound to exercise jurisdiction if the state be not necessarily a party. This evidently is what the court means in Osborne v. Bank, 9 Wheat. 738, when it says:
“ Tlie state not being a party on the record, and the court having jurisdiction over those on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants, whether they are to be considered as having a real interest, or as being only nominal parties.”
The court proceeds to solve the question by the rule of pleading, which would determino the matter if the state had been an individual. In that case the plaintiff was pursuing his property in the hands of trespassers, who had wrongfully taken it from his possession. The being who had authorized the trespass, and who was ultimately to he benefited by it, was not a necessary party. Detinue, the court say, would have lain against the takers alone, if the property had liad ear-marks. Being incapable of identification, resort to equity was allowable. But in this case the claim of the plaintiffs arises upon bonds which have interest covenants which are secured by statutory promises as to moneys which have come into the hands of the defendants as agents of the obligor. The plaintiffs here claim the moneys by virtue of the bond. This bill shows that the obligor controverts their right alike to the interest and moneys. The question here is this: Can the plaintiffs assert the interest covenants against the obligor or his property without making him a party? He is clearly a necessary party.
I do not understand that the case of Davis v. Gray has attempted to change the rule recognized in these cases and enforced in Governor v. Madrazo. The result of all the cases is that only where the state is eo nomine a party is j urisdiction ousted; that when the state is not by name a party, and when the court has jurisdiction over the parties defendant, that jurisdiction cannot be exercised when the defendants are merely nominal parties, and have no real interest in the controversy. McCauley v. Kellogg was, in all its features, similar to this ease. There it was attempted, through the same officers here defendant, to enforce the payment of coupon bonds issued by the state. In that case Justice, then Judge, Woods held that the court could not take cognizance of the cause. He says, page 21, “that case is clearly distinguishable from the cases of Osborne v. Bank and Davis v. Gray.” And on page 22: “The dilemma is this: If the suit is against the defendants in their official character, and the claims made upon them are in their official character, the state may be considered a party to the record. Governor of Georgia v. Madrazo, 1 Pet. 110. If the suit is against the officers as individuals merely, and the offices they hold are given merely to describe their persons, they have no interest in the subject-matter, and no decree should go against them.”
To do what this bill of complaint asks the court to do, would be to wipe from the treasury of a state every vestige of a public treasury, and substitute the court’s administration of a state treasury for that of a state. It is not simply shown that this cause affects thg interests of the state, but it subverts her constitution to the extent of taking from her treasury, in behalf of her creditors, moneys which her constitution declares they shall not receive, and thereby withdraws them from an employment which the state now declares public good requires. The very statement of this case shows that the state is the sole, real defendant, and that no judgment could be rendered against the defendants personally, or except as representing the state by virtue of the offices which they are declared to hold. Nor is there substantial ground for the argument that there exists here a trust in behalf of the complainants which a court of equity ought to enforce. We must take the case as we find it.
It avails nothing that the complainant in his bill, in his averments, uses the words “that there is a trust fund.” The equity of the bill must be determined by the facts as they appear, (Greenville Murray v. Earl of Clarendon, Law R. 9 Eq. Cas. 11;) and, by the facts as they appear, these funds were at one time agreed to be devoted — appropriated in advance — to the payment of these coupons; but subsequently, and before the election of the fiscal officers who are defendants here, the state recalled that appropriation, and these defendants never held these funds for the plaintiffs, but they were placed in their hands specifically to be used for other purposes; so that the case shows (1) that even if the state had not changed the destination of the funds its officers would have held them as his agents, and not as trustees for the plaintiffs; and (2) that so far from receiving the funds for the plaintiffs, they received them to be applied in a way utterly inconsistent with any right to them on the part of the plaintiffs.
The effort of the plaintiffs is to subject the funds, not to the application in accordance with the defendants’ undertaking, but in spite of it. The gravamen of the bill is, not that the state did place these funds in the defendants’ hands for them, but that the state, by her contract, was obliged to have done so, but did not do so.
If the state were a natural person, and her obligations could he enforced as can those of an individual, there would he no difficulty in compelling her to undo her diversion of these funds. But the fact that a sovereign has taken funds which she had agreed should be paid to her creditors, and placed them in her treasury to bo disbursed otherwise, could never be the ground for any serious argument that, against the will of the state, they could bo followed into the public treasury, and the claim of tho creditors enforced in a suit against the treasury officers as naked trustees of the creditors. There can be found some cases which have held that when the sovereign had appropriated a sum of money in the treasury to John Smith, by name, and stood upon such appropriation, John Smith could assert title thereto in a suit ¿gainst the treasury officers alone; but where, as here, the sovereign had made an appropriation and subsequently recalled it, took the money appropriated, and delivered it to its treasurer to beheld and disbursed for other purposes, the creditor is remediless in the courts, for the reason that the treasury of a sovereign cannot he interfered with by judicial process, except the sovereign continues to assent to the interference. The facts of this case show that the money is now held by the state of Louisiana in its treasury, and that the purpose of the state at the time this suit was instituted, as expressed through its people in the form of its organic law, was and now is that this appropriation shall not be observed. With such facts appearing the case fails, no matter how great may he the moral obligations it presents, because courts lack the power to compel sovereigns to execute their contracts.
In Allen v. Barida, 7 Bosw. 212, Judge Hoffman, speaking with reference to a charter-party entered into with the republic of Peru, says:
“A party who explicitly and solely contracts with a sovereign power, contracts upon the basis of there being no other appeal open to him for its acts or omissions but its own sense of justice and legal obligation.”
In Crouch v. Credit Fonder of England, Law R. 8 Q. B. 384, the court says:
“ Foreign and colonial governments frequently create a public debt, the title to portions of which is mado to depend on the possession of bonds expressed to be transferable to the bearer or holder. There can hardly properly be said to be any right of action on such instruments at all, though the holder has a claim on a foreign government.”
In Wadsworth v. Queen of Spain, 17 Q. B. 171, certain persons bad been cited as garnishees.. It was held that a sovereign was not liable ón his contracts made in his sovereign capacity; that no English court could entertain an action against him for anything done or omitted to be done in his representative capacity; and, as the court had no jurisdiction to adjudge against them, an attachment of his property could not be sustained. See, also, Greenville Murray v. Earl of Clarendon, Law R. 7 Eq. Cas. 11.
In Smith v. Weguelin, Law R. 8 Eq. Cas. 198, where the government of Peru contracted a loan, and hypothecated for its payment, among other things, all the Peruvian guano imported into Great Britain, and a bill was filed to charge the agents through whom the importation was made as trustees, page 213, the court says:
“Suppose a palpable breach of the contract between the Peruvian government and the bondholders, and that the Peruvian republic declared that it would not pay a penny to any of the bondholders, but would totally disclaim and repudiate all liability, could this court interfere? Some of the states of ÍTorth America negotiated loans partly here and partly at home, and after-wards repudiated them, but no oné ever attempted to seize any property belonging to those states in this country, and enforce a contract between those governments and the holders of their bonds. And if the court did make such an attempt, it would fall into this dilemma: either it would simply make itself ridiculous in attempting what is impossible, or if it could assume that the-foreign government was answerable to this court, and bound to pay according to its decrees, and then found property belonging to thé foreign government in this country, it would alter the relation between the two countries, and enable a bondholder, by aid df the court of chancery, practically to declare war against a foreign country; for it is clear that if the court of chancery could seize all the guano belonging to the Peruvian government, it might as well seize Peruvian vessels, under the article which declares that all the other property and sources of revenue of the republic ¿Should be applicable to payment of the loan.”
The case of Twycross v. Dreyfus, Law R. 5 Ch. Div. 605, is instructive as showing how powerless is a creditor to enforce an hypothecation of property by a suit which is really against a government. There the republic of Peru had issued bonds and agreed to consign, and had consigned, guano to tire defendants to meet the annual interest. The plaintiffs, as holders of the bonds, brought an action in behalf of themselves and all other bondholders, and averred that the republic had forwarded large quantities of guano to the defendants for' the purpose of paying the interest on the bonds, which they refused to apply for that purpose, and threatened to apply in satisfaction of a lien claimed by themselves, and that the republic of Peru made no claim to the proceeds of the guano.
The court held, affirming the decision of the vice chancellor, that the defendants vero agents and could not he sued in the absence of their principal. The master of rolls (page 616) says:
“ The first and most important point we have to decide is, what is tire meaning of the bond of a foreign government, given to secure the payment of a loan? As I understand the law, the municipal law of the country does not enable the tribunals of this country to exercise any jurisdiction over foreign governments as such. The result, therefore, is that those so-called bonds amount to nothing moro than engagements of honor, binding so far as engagements of honor can bind the government which issues them, but are not contracts enforceable before the ordinary tribunals of any foreign government, or even by the ordinary tribunals of the country which issued them, without the consent of that country.”
Lord Justice James says, (page 618:)
“You cannot sue the Peruvian government, and it would be a monstrous usurpation of jurisdiction to endeavor to sue a foreign government indirectly by making its agents in this country defendants.”
In The Parliament Belge, Law R. 5 Prob. Piv. 197, the court of appeal held that a public ship of a foreign, state could not he libelled for a collision, upon the ground that a sovereign could not be even indirectly impleaded by a proceeding in rem against his property.
In Briggs v. The Light Ships, 11 Allen, (Mass.) 157, it was held that when there was under the law of Massachusetts a builder’s lien against the vessels, after they were purchased by the government of the United States, it could not be enforced against the ships, even by a proceeding in rem. The court say:
“ The immunity arises not because they are instruments of war, but because they are instruments of sovereignty, and that the courts of that commonwealth could not entertain jurisdiction of these petitions.”
After holding that there was a lien, and that as matter of title plaintiffs’ right was complete with reference to its enforcement, the court, at page 162, say:
“It is an elementary and familiar principle of English and American constitutional law that no direct suit can be brought against the sovereign in his own courts without his consent. In the older books this is often put upon the technical ground that all judicial writs, being in the name of the king as the fountain of justice, the king cannot by his own writ command himself. But the broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign to subject him" to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the government in war and peace, and the money in his treasury.”
These authorities, it seems to me, are conclusive upon the point-that the general doctrine is that the contracts of sovereigns cannot, without their consent, by direct suit, be enforced in the courts neither by process which shall operate directly upon their property, much less upon their treasury, nor by proceedings against their agents alone, whose interest in the subject-matter of the suit is merely nominal, and against whom the court ought not to proceed to make a decree.
This, with perhaps the exception of causes in the admiralty, is the precise meaning and effect of the eleventh amendment of the constitution of the United States, which withholds the judicial power from any suit in law or equity against one of the United States by a citizen of another state or by an alien.
Nor has there, in my opinion, been any submission of the state to the jurisdiction of the courts which has not been withdrawn. It is not necessary to interpret the meaning of the amendment of the constitution of the state of Louisiana, that “the judicial power may be used to enforce the levy or collection of the tax, and the payment of the bonds and interest.” The constitution of 1879, with its ordinances, declares that “the coupons falling due January, 1880, were remitted, and the interest collected to meet them was thereby transferred to defray the expenses of the state government; ” and the constitution of 1879 further declares that “it supersedes that of 1868, and all amendments thereto.” It then, equitably or inequitably, annulled that amendment to the constitution which gave any right to resort to the courts, and has thereby necessarily withdrawn all permission to bring suits directly or indirectly against the state contained in the annulled amendment.
In Beers v. State, 20 How. 529, the court say:
“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts or in any other without its consent and permission; but it may, if it thinks proper, waive the privilege and permit itself to be made a defendant in a suit by individuals or by another state; and, as this permission is altogether voluntary on the part of the sovereignty, it follows that it may provide the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires.”
My conclusion is that according to the principles which govern all courts in defining the limits of their jurisdiction, as well as the provisions of constitutional law which limit the jurisdiction of the circuit courts of the United States, this case is palpably beyond judicial cognizance. Human tribunals, like their authors, are hut imperfect organizations. They are compelled to allow cases of wrongs without being able to afford redress, because their authority is bounded by rules which have been established as necessary for the wise administration of governments. It is not out of regard to kingly prerogatives that sovereigns are exempt from judicial power, but because the necessities and protection of their whole subjects or citizens are involved in the immunity. It is better that a single creditor, or class of creditors, should go unpaid, even when his demand is most sacredly founded, rather than that a whole people should he embarrassed, and an entire government crippled, by the assumption on the part of courts of the power to administer the treasury of a state. If there is a principle which is admitted beyond all others in the doctrines of American government, it is that the people of a state have a right to change its constitution. This has here been done, and in making that change such obligations have been disregarded and such harriers created that to entertain this hill of complaint is to subvert the entire economic and financial system of a state by an administration of the treasury of the state of Louisiana through a receiver of this court.
In my opinion the wrong here complained of, and which the complainant seeks to have redressed, is that of a state, in a case where judicial redress is inconsistent with the settled principles which apportion authority among the departments of government. The case in all its features — in its cause and cure- — is essentially political and not judicial. The enforcement of the provision of the constitution which guaranties to every state a republican form of government, as it seems to me, is not more unmistakably outside of the judicial power than is the application of the provision that no state shall pass any law which impairs the obligation of a contract to such a case as this. The contract is clear, the violation is clear; but you cannot call the state to the bar of the court, nor by a bill in equity remodel its constitution.
Unless the substance and force of the eleventh amendment be disregarded, this court can grant no relief in this case. In my opinion the injunction should he refused.
NOTE.
Extent of Judicial Power. The provisions of article 11 of the amendments to the constitution of the United States were held to extend to all pending suits, as well as to future cases, but only to original suits, and not appeals or writs of error, nor to suits of admiralty or maritime jurisdiction. The amendment is limited to suits in which a state is a party to the record, or where its chief magistrate is sued in his official character, The mere fact that a state officer, whatever his grade, is a party, does not defeat the equity jurisdiction of the United States circuit court, although the state may be the real party in interest, and cannot as such he brought before the eourt. This amendment provides that no suit shall be commenced or prosecuted in a federal court against a state, the jurisdiction in original suits against a state being conferred by the constitution on the supreme court of the United States. But it does not apply to a ease where a state becomes interested in the title to property in possession of an individual, although as an independent sovereign it cannot be sued. So the United ' States cannot be sued. So, if a state be not necessarily a defendant, although its interests may be affected, this amendment does not apply, as to a suit against a corporation, although the state be a member thereof ; for a state, by becoming interested in a corporation, lays down its sovereignty so far as respects the transactions of the corporation. — [Ed.
Hollingsworth v. Virginia, 3 Dall. 378; Georgia v. Brailsford, 2 Dall. 402; Cohens v. Virginia, 6 Wheat. 294. See McNutt v. Bland, 2 How. 27.
Cohens v. Virginia, 6 Wheat. 264.
Olmstead’s Case, Bright, 9; Georgia v. Madrazo, 1 Pet. 127.
Osborn v. Bank, 9 Wheat. 738; Chisholm v. Georgia, 2 Dall. 419; Cherokee Nation v. Geor gia, 5 Pet. 1; U. S. v. Peters. 5 Cranch, 115; Davis v. Gray, 10 Wall. 203; Swasey v. N. C. R. Co. 1 Hughes, 1; S. C. 71 N. C. 571. See Buckner v. Striet, 7 Bank Reg. 266.
Georgia v. Madrazo, 1 Pet. 123.
Osborn v. Bank, 9 Wheat. 738; Murdock v. Woodson, 2 Dill. 204.
U. S. v. Peters, 5 Cranch, 139; Osborn v. Bank, 9 Wheat 738; Cohens v. Virginia, 6 Wheat. 264.
New Jersey v. New York, 5 Pet. 288; Os wald v. New York, 2 Dall. 415; Grayson v. Vir ginia, 3 Dall. 320; Huger v. South Carolina, Id. 339; Rhode Island v. Massachusetts, 12 Pet. 731.
U. S. v. Peters, 5 Cranch, 115; Osborn v. Bank, 9 Wheat. 738.
Osborn v. Bank, 9 Wheat. 738.
St. Luke’s Hospital v. Barclay, 3 Blatchf. 264.
Fowler v. Lindsey, 3 Dall. 411; New York v. Connecticut, 4 Dall. 1; U. S. v. Peters, 5 Cranch, 139; Osborn v. Bank, 9 Wheat. 738; Louisville, etc., R. R. v. Stetson, 2 How. 550; McNutt v. Bland, 2 How. 27.
Bank of U. S. v. Planters’ Bank, 9 Wheat. 904.
Briscoe v. Bank, 11 Pet. 324; Darrington v. Bank, 13 How. 12; Curran v. Arkansas, 15 How. 309.

Passage view · GavelSight