The case of Louisiana v. Jumel35 is a leading one upon the question as to when the Supreme Court will award a mandamus to compel the performance by a state officer of a duty which, under color of an unconstitutional law, he refuses to perform to the prejudice of the parties plaintiff.

The State of Louisiana in 1874 provided for an issue of bonds, and in the same law provided for the levying and collection of a particular tax to create a sinking fund for their payment. In 1880, however, by a new Constitution, this provision for payment was abolished. Thereupon Jumel, as one of the holders of the bonds, alleging that that part of the new Constitution which had this effect was in violation of the federal Constitution as an impairment of the contract between the State and the holders of its bonds, applied for a mandamus to compel the treasurer of the State to apply the sinking fund that had been created to the paymerit of the bonds, and to continue to levy and collect the tax originally provided for. Upon appeal, the Supreme Court of the United: States admitted the existence of a valid contract, but denied the relief prayed upon the following grounds:

33.140 D. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363.

34 Citing New Hampshire v. Louisiana, 108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 056; and In re Ayers, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216.

35 107 U. S. 711: 2 Sup. Ct. Rep. 128; 27 L. ed. 448.

" The relief asked will require the officers, against whom the process goes, 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 it shall not be done.

"In The Arlington Case - U. S. v. Lee (106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171) - it was held that the officers of the United States, holding in their official capacity the possession of lands to which the United States had no title, could be required to surrender their possession to the rightful owner even though the United States were not a party to the judgment under which the eviction was to be had. Here, however, the money in question is lawfully the property of the State. It is in the manual possession of an officer of the State. The bondholders never owned it. The most they can claim is that the State ought to use it to pay their coupons, but until so used it is in no sense theirs." 36

36 Justices Field and Harlan rendered dissenting opinions. In his dissent Justice Field argued that the act asked of the Treasurer was a purely ministerial one which the court had repeatedly said might be compelled (Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623), and denied that there was any necessity that the particular money for the payment of the bonds should have been segregated in the state treasury.

"If," he said, " the new Constitution had never been adopted there could be no question as to the power of the state courts to require that the moneys collected be applied to the payment of the interest. It would not only have been the duty of the Board of Liquidation to thus apply them, but it would have been a felony to have refused to do so. Now, whatever enactment, constitutional or legislative, impairs the obligation of the contract with the bondholders, that is, abrogates or lessens the means of its enforcement, is void.

In Hagood v. Southern37 the court said: "A broad line of demarcation separates from such cases as the present, in which the decree requires, 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, for the redress of the wrong, it was said by Mr. Justice Miller in Cunningham v. Macon & Brunswick E. E. Co. (109 IT. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992): ' 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 defense, he must show that his authority was sufficient in law to protect him.' " 38

Therefore, the new Constitution, as to that contract, is to be treated as though it had never existed. . . . Nor is there any force in the objection that the funds Which the complainants and petitioners seek to reach are in the treasury of the State. They are appropriated by the law of 1874 and by the constitutional amendment of that year to the payment of the interest on the consolidated bonds. . . . The ministerial duty only remained with the officer of the State having charge of the fund, whatever it might be, to apply it. . . . Nor is there any weight in the objection that the officers of the State are called upon to enforce the collection of the tax. They are simply called upon to obey the mandates of the law and Constitution of the State. Both levy the tax and designate the amount and the officers to collect it. . . . The State cannot speak through an enactment which controverts the federal Constitution."

37 117 U. S. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 805.

38 The opinion continues: "Of such cases, that of United States v. Lee, 106 U. S. 196; 1 Sup. C t, Rep. 240; 27 L. ed. 171), is a conspicuous example, and it was upon this ground that the judgment in Poindexter v. Greenhow (114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185) was rested. And so the preventive remedies of equity by injunction may be employed in similar cases to anticipate and prevent the threatened wrong, where the injury would be irreparable, and there is no plain and adequate remedy at law, as was the case in Allen v. B. & O. R. R. Co. (114 U. S. 311; 5 Sup. Ct. Rep. 925; 29 L. ed. 200), where many such instances are cited."

In Pennoyer v. MeConnaughy39 is again clearly stated the distinction between those suits brought against state officials which are to be regarded as suits against the State, and those which are not.

"It is well settled," say the court in that case, " that no action can be maintained in any federal court by the citizens of one of the States against a State, without its consent, even though the sole object of such suit be to bring the State within the operation of the constitutional provision which provides that ' no State shall pass any law impairing the obligation of contracts.' This immunity of a State from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the State within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a State, to compel them to do the acts which constitute a performance by it of its contracts, is in effect a suit against a State itself. In the application of this latter principle two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts.40

"The other class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the State, or for compensation in damages, or in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain legal duty, purely ministerial, is not within the meaning of the Eleventh Amendment an action against the State." 41

39 140 U. S. 1; 11 Sup. Ct. Rep. 699; 35 L. ed. 363.

40 Citing In re Ayers, 123 U. S. 443; 8 Sup. Ct. Rep. 164; 31 L. ed. 216; Louisiana v. Jumel, 107 U. S. 711; 2 Sup. Ct. Rep. 128; 27 L. ed. 448; Antoni v. Greenhow, 107 U. S. 769; 2 Sup. Ct. Rep. 91; 27 L. ed. 468; Cunningham v. Macon & B. R. Co., 109 U. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992; Hagood v. Southern, 117 U. S. 52; 6 Sup. Ct. Rep. 608; 29 L. ed. 805.

In Re Tyler42 and Scott v. Donald43 the doctrine is again applied that the Eleventh Amendment does not prevent the issuance of writs of injunction to prevent injuries threatened to individuals by officers claiming the authority of an unconstitutional legislative act, or to prevent the granting of mandamus to compel the performance by them of plain legal duties, purely ministerial in character.

In Smith v. Reeves,44 however, the action was held to be one against the State. In that case an action had been brought against the defendant "as treasurer of the State of California" to repay to the plaintiffs taxes which they had paid, but which, they alleged, had been unconstitutionally levied. In that case the court said: "In the present case the action is not to recover specific moneys in the hands of the state treasurer, nor to compel him to perform a plain ministerial duty. It is to enforce the liability of the State to pay a certain amount on account of the payment of taxes alleged to have been wrongfully exacted by the State from the plaintiffs. Nor is it a suit to enjoin the defendant from doing some positive or affirmative act to the injury of the plaintiffs in their persons or property, but one in effect to compel the State, through its officer, to perform its promise to return to taxpayers such amount as may be adjudged to have been taken from them under an illegal assessment."

41 Citing Osborn v. Bank of the United States, 9 Wheat. 738; 6 L. ed. 204; Davis v. Gray. 1G Wall. 203; 21 L. ed. 447; Tomlinson v. Branch, 15 Wall. 460; 21 L. ed. 189; Litchfield v. Webster County, 101 U. S. 773; 25 L. ed. 925; Allen v. Baltimore & O. R. Co.. 114 U. S. 311; 5 Sup. Ct. Rep. 925; 29 L. ed. Louisiana Board of Liquidation v. McComb, 92 U. S. 531; 23 L. ed. 623; Poindexter v. Greenhow. 114 U. S. 270; 5 Sup. Ct. Rep. 903; 29 L. ed. 185.

42 149 U. S. 164; 13 Sup. Ct. Rep. 785; 37 L. ed. 689.

43 165 U. S. 107; 17 Sup. Ct. Rep. 262; 41 L. ed. 648.

44 178 V. S. 436; 20 Sup. Ct. Rep. 919; 44 L. ed. 1140.