Farmers' Nat. Bank v. Jones

CALDWELL, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

A state, without its consent, cannot be sued by an individual. “It is a well-established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts or any other without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals or by another state.” Beers v. Arkansas, 20 How. 527 , 15 L. Ed. 991 . The United States has waived this privilege in this regard, and allowed suits to be brought against it in a few specified cases. Some of the states of the Union, including Arkansas, have at times claimed no immunity from suit, but made provision for submitting themselves to the jurisdiction of courts at the suit of any one who choose to sue them. Experience, however, soon demonstrated this to be an unwise and extremely injurious policy, and most, if not all, of the states, including Arkansas, after a brief experience, abandoned it, and refused to submit themselves to the coercive process of judicial tribunals. When the supreme court of the United States in Chisholm v. Georgia, 2 Dall. 419 , 1 L. Ed. 440 , decided that under the constitution that court had original jurisdiction of a suit by a citizen of one state against another state, the eleventh amendment of the •constitution was straightway adopted, taking away this jurisdiction. That amendment reads as follows:

“The judicial power of the United States shall not be construed to extend .to any suit in law or equity commenced or prosecuted against one of the .United States by citizens of another state, or by citizens or subjects of any ‘foreign state.”

Since the adoption of this amendment, the contract of a state is substantially without sanction, except that which arises out of the .honor and good faith of the state itself, and these are not subject to coercion. Ex parte Ayers, 123 U. S. 443, 505 , 8 Sup. Ct. 164, 31 L. Ed. 216 . One claiming to be a creditor of a state is remitted to the justice of its legislature. It was once said by the supreme court of the United States that the eleventh amendment was limited to suits in .which the state was a party to the record. Osborn v. Bank, 9 Wheat. *463 738 , 6 L. Ed. 204 . But as a state can perform its functions through officers and agents only, it was soon perceived that, if these officers and agents of the state were liable to be sued and coerced to comply with the judgments and decrees of a federal court, the whole scope and purpose of the amendment would be nullified, and the doctrine of that case on this point has long ceased to be authority.

It is now settled that the jurisdiction in such cases is dependent upon the real, and not upon the nominal, parties to the suit, and it is now clear, both upon principle and authority, that a suit against the officers of a state to compel them to do acts which would impose a contractual pecuniary liability upon the state, or to issue any evidence of debt, in the name of the state, which would have that result, is in fact and legal effect a suit against the state, though the state itself is not named a party on the record. This suit is not against the named defendants as individuals, but against them in their official, character and capacity as officers of the stale constituting the state debt board, and seeks to compel them to perform an official act in the name of the state, whereby the state will become bound for the payment of money by an evidence of debt which now has no existence, and which they are not by law empowered to issue. The state debt board owes to the state the duty to do for and in the name of the state the things enjoined upon it by the act of the legislature, and none other. The board, as a board, has no contract relations with the owners of lost or destroyed bonds, and stands in no relation to them which imposes on the board any duty towards them whatever; and if it be conceded that the state owes to the owners of lost or destroyed bonds, no matter by whose agency lost or destroyed, the duty of issuing new bonds in their stead, no federal court can coerce the state, or any of its officers or boards, by any form of suit or proceedings, to the performance of that duty. As was said by the supreme court in the Jumel Case, 107 U. S. 711 , 2 Sup. Ct. 128, 27 L. Ed. 448 , the board can be moved through the state, but not the state through the board. A suit like the one at bar, which seeks to compel a board of state officers to execute and deliver to a suitor the bonds of the state, which, if legally executed and delivered, would constitute a valid money obligation against the state, is to all intents and purposes a suit against the state, of which a federal court has no jurisdiction. It is a suit to compel the board to issue negotiable bonds of the state, to become legal and binding obligations upon the state. There is no difference between such a suit and a suit against the state for the amount of money expressed in the bonds. If one can be maintained, the other can. The justice and merits of the demand cut no figure in determining the jurisdiction of the court. When it is determined that the suit is one against the state, the jurisdiction of the court is terminate ed, and any inquiry into the merits of the case is irrelevant. There is a well-defined line of distinction between a suit like the one at bar and suits against officers and agents of The state to restrain them from inflicting a personal injury on a citizen in violation of his legal arid constitutional rights, or to compel them to perform for a citizen a plain ministerial duty, the performance of which is enjoined upon them by law, and concerning the performance of which they have;no *464 discretion. This line of distinction is pointed out and illustrated in the cases which we cite. Ex parte Ayers, 123 U. S. 443 , 8 Sup. Ct. 164, 31 L. Ed. 216 ; Louisiana v. Jumel, 107 U. S. 711 , 2 Sup. Ct. 128, 27 L. Ed. 448 ; Antoni v. Greenhow, 107 U. S. 769 , 2 Sup. Ct. 91, 27 L. Ed. 468 ; Cunningham v. Railroad Co., 109 U. S. 446 , 3 Sup. Ct. 292, 27 L. Ed. 992 ; Hagood v. Southern, 117 U. S. 52 , 6 Sup. Ct. 608, 29 L. Ed. 805 ; Osborn v. Bank, 9 Wheat. 738 , 6 L. Ed. 204 ; Davis v. Gray, 16 Wall. 203 , 21 L. Ed. 447 ; Board v. McComb, 93 U. S. 531 ; 23 L. Ed. 623 ; Hans v. Louisiana, 134 U. S. 1 , 10 Sup. Ct. 504, 33 L. Ed. 842 ; Pennoyer v. McConnaughy, 140 U. S. 1 , 11 Sup. Ct. 699, 35 L. Ed. 363 .

The plaintiff’s suit must fail on another ground. The bill is, in effect, a petition for a peremptory mandamus on the state debt board to compel it to issue state refunding bonds to the plaintiff in lieu of state bonds alleged to have been wrongfully or erroneously burned by the state burning board, and which it is alleged belonged to the plaintiff. The act of the legislature, providing for refunding the bonded debt of the state, confers on the board no authority to issue refunding bonds in such a case. That act contemplates the exchange of one bond for another. Wherever the holder of a valid state bond presents the same to the board to be funded, it is the duty of the board to issue and deliver to the holder so presenting such bond a refunding bond for a like amount, as prescribed by the act. Until a valid state bond is presented to the board to be refunded, it has no jurisdiction to' act in the premises. The actual presentation of a state bond to be refunded is an indispensable prerequisite to the exercise of its jurisdiction. It has no power or authority under the act to inquire into the ownership or validity of alleged lost or destroyed bonds with a view of refunding them. And the inquiry the board made, and the facts it found, on the application made to it in this case, were extra official. It was a judicious and proper thing to do, but after doing it the board rightfully decided that it was without power or authority to grant the relief sought, or give any legal force or efficacy to its. findings. The court is fully in accord with the board in its finding, of facts, but they have no official sanction or force. No state of facts can confer on the board the authority to issue state bonds. This can be done by law only. It is a power not to be implied or presumed; it must be expressly conferred. The facts found by the board will doubtless be persuasive before the tribunal which alone can dp- justice in the premises under the existing laws Of the state. They are unavailing elsewhere. In the absence of express statutory authority, no state officer or board has power or authority to issue state bonds or other evidences or debt in lieu of bonds or evidences of debt alleged to have been lost or destroyed. The policy pursued by the United States in this regard is instructive. For a long time it was the practice to pass special acts of congress authorizing the secretary of the treasury of the United States to issue, upon the conditions prescribed in the acts, duplicate United States bonds in lieu of bonds destroyed by fire or otherwise. As examples of such-acts we cite: Act Feb. 13, 1862 ( 12 Stat. 901 ); Act Jan. 19, 1861 ( 12 Stat. 878 ); Act March, 28, 1864 ( 13 Stat. 577 ); Act *465 July 23, 1866 ( 14 Stat. 599 ); Act April 25, 1866 ( 14 Stat. 584 ); Act March 1, 1869) ( 15 Stat. 464 ). Finally, congress passed a general law on the subject to cover all cases of the loss or destruction of United States bonds, which is embodied in sections 3702-3705, Rev. St. U. S. Without express authority to that affect conferred by an act of congress, tlie secretary of the treasury of the United States never presumed to issue duplicate United States bonds to take the place c-f bonds lost or destroyed, no matter how clear or satisfactory the proof of loss might be. On examination, it will be found that the acts of congress and of the states, which authorize the issue of hands or other evidence of debt of the United States or of a state in lieu of lost bonds or other evidence of debt, uniformly prescribe; the conditions upon which it will be done. Proof of loss and the execution of an indemnifying bond are among the conditions required by such acts.

As before remarked, the bill in this ease is, in effect, a petition for a peremptory mandamus. If a mandamus would not lie to coerce the slate debt board to the performance of the act, no more can its performance be coerced on a bill in equity. A court of equity cannot, by its process or decree, invest a public officer with power or authority not conferred on him by law, any more than a court of law can do that thing by a writ of mandamus. When it is sought to compel a public officer or board to do a particular act, it must clearly appear that the law has made it the legal duty of the officer or board to do the act, and that the act is purely a ministei-ial one, which leaves nothing to the discretion of the officer or board. The whole law on this subject is briefly and accurately expressed by the supreme court of the United States in, the case of U. S. v. Lamont, 155 U. S. 303 , 15 Sup. Ct. 97, 39 L. Ed. 160 . In that case the court say:

“The duty to be enforced by mandamus must not only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus, in the case of Ex parte Rowland, 104 U. S. 604 , 26 L. Ed. 861 . this court, speaking through Air. Chief Justice Waite, said: ‘It is settled that more cannot he required of a, public officer by mandamus than the law has made It his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one.’ Moreover, ihe obligation must be both peremptory and plainly defined. The law must no), only authorize the act (Com. v. Bowtwell. 13 Wall. 526 , 20 L. Ed. 631 ), but it must require the act to be done. ‘A mandamus will not lie against the secretary of the treasury, unless the laws require him to do what he is asked in the petition to he made to do’ (Reeside v. Walker. 11 How. 272 , 13 L. Ed. 693 . See, also, Secretary v. McGarrahan, 9 Wall. 298 , 19 L. Ed. 579 ); and the duty must he ‘clear and indisputable’ (Commissioners v. Aspinwall, 24 How. 376 , 16 L. Ed. 735 ).”

And see Board v. King, 14 C. C. A. 421 , 67 Fed. 202 . These rules are applicable to this case, and decisive of it. The bill must be dismissed for want of jurisdiction, without prejudice to the plaintiff’s right to assert its claim before any tribunal competent to afford the relief sought.