1. On the 24th of January, 1874, the Legislature of Louisiana
passed "the Funding Act," which created a board of liquidation,
consisting of the governor and other state officers. Its principal
stipulations, aside from that which provided that prior to the year
1914, the entire state debt should never be increased beyond the
sum of fifteen million dollars, are
first, that the
"consolidated bonds," the issue of which is thereby authorized,
shall not exceed in amount fifteen million dollars, or so much
thereof as may be necessary for the purpose of consolidating and
reducing the floating and bonded debt of the state, amounting to
twenty-five million dollars and consisting of valid outstanding
bonds, and valid warrants of the auditor theretofore issued;
secondly, that they shall only be used for exchange for
said debt at the rate of sixty cents in consolidated bonds for one
dollar in such bonds and warrants;
thirdly, that a tax of
five and a half mills on the dollar of the assessed value of all
the real and personal property of the state shall be annually
levied and collected for paying the interest and principal of the
bonds and is set apart and appropriated for that purpose and no
other, any surplus beyond paying interest to be used for the
purchase and retirement of the bonds;
fourthly that the
power of the judiciary, by means of mandamus, injunction, and
criminal procedure, shall be exerted to carry out the provisions of
the act. An amendment of the constitution was subsequently adopted
which declared that the issue of the consolidated bonds should
create a valid contract between each holder thereof and the state
which the latter should not impair, and directed that the tax
should be levied and collected without further legislation.
Thereafter, on the 2d of March, 1875, the legislature passed an act
authorizing the board of liquidation to issue a portion of such
consolidated bonds to the Louisiana Levee Company in liquidation of
a debt claimed to be due it under a contract made in 1871. This
debt was not one of those to fund which the consolidated bonds had
been issued, but the act under which that contract was made
provided and set apart certain taxes to be levied and collected
throughout the state to meet the payments which would accrue to the
company. The circuit court, upon a bill filed for that purpose by a
citizen of Delaware who had surrendered his old bonds and taken
sixty percent of the amount in consolidated bonds, two millions of
which had then been issued, granted an injunction restraining the
board from using the consolidated bonds and from issuing any other
state bonds in payment of said pretended debt.
Held that
as the proposed funding of the levee debt at par in the
consolidated bonds destroys all benefits anticipated from the
funding, on which benefits those who accepted its terms had a right
to rely, and makes an unjust discrimination between one class of
creditors and another, the injunction, so far as it restrained the
funding of said debt in consolidated bonds issued or to be issued
under the Act of Jan. 24, 1874, was properly granted.
2. Although a state, without its consent, cannot be sued by an
individual, nor can a court substitute its own discretion for that
of executive officers in matters belonging to their proper
jurisdiction, yet when a plain official
Page 92 U. S. 532
duty, requiring no exercise of discretion, is to be performed,
and performance is refused, any person who will sustain personal
injury by such refusal may have a mandamus to compel its
performance, and when such duty is threatened to be violated by
some positive official act, any person who will sustain personal
injury thereby for which adequate compensation cannot be had at law
may have an injunction to prevent it. In such cases, the writs of
mandamus and injunction are somewhat correlative to each other. In
either case, if the officer plead the authority of an
unconstitutional law for the nonperformance or violation of his
duty, it will not prevent the issuing of the writ. An
unconstitutional law will be treated by the courts as null and
void.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The decree appealed from in this case was for a perpetual
injunction to restrain the Board of Liquidation of the state of
Louisiana from using the bonds known as the consolidated bonds of
the state for the liquidation of a certain debt claimed to be due
from the state to the Louisiana Levee Company, and from issuing any
other state bonds in payment of said pretended debt.
The decree was made upon a bill filed by the appellee, McComb, a
citizen of Delaware, in which he alleges that he is a holder of
some of these consolidated bonds, and that the employment of the
bonds for the purpose proposed -- namely the payment of the claim
of the Levee Company, will be a violation of the pledges given by
the act creating the bonds and will greatly depreciate their value.
The bill sets out the circumstances of the case and prays for an
injunction. The defendants demurred and, the demurrer being
overruled, they declined to answer and stood upon the supposed
defects of the plaintiff's case. Thereupon the decree appealed from
was rendered, and the question is whether the injunction ought to
have been decreed upon the statements made by the bill.
It appears that by an Act of the legislature of Louisiana passed
the 24th of January, 1874, called the Funding Act, the governor of
the state and other state officers were created a
Page 92 U. S. 533
board of liquidation, with power to issue bonds of the state to
an amount not to exceed $15,000,000, or so much thereof as might be
necessary for the purpose of consolidating and reducing the
floating and bonded debt of the state, and to be called
"consolidated bonds of the state of Louisiana," which bonds were to
bear date the 1st of January, 1874, and to be payable in the year
1914, with interest at seven percent per annum. The act provided
that these bonds should be exchanged by the board for valid
outstanding bonds of the state and valid warrants of the auditor
issued prior to the passage of the act (except warrants issued in
payment of constitutional officers of the state), at the rate of
sixty cents in consolidated bonds for one dollar in outstanding
bonds and warrants, and that they should be used for no other
purpose. An annual tax of five and a half mills on the dollar of
the assessed value of all the property of the state was levied and
directed to be collected to pay the interest on these bonds and to
purchase and retire them. Other provisions were added making it
penal for the officers to divert the funds thus provided or to
obstruct the execution of the act or to fail in the performance of
any of the official duties required by it, and it was declared that
no court or judge should have power to enjoin the payment of the
bonds or the collection of the tax provided therefor. The eleventh
section further declared that each provision of the act should be a
contract between the state and each and every holder of the bonds
issued under the act, and section thirteen provided that the entire
state debt, prior to the year 1914, should never be increased
beyond the sum of $15,000,000 authorized by the act, it being
declared to be the intent and object thereof, and of the exchanges
to be effected under it, to reduce and restrict the whole
indebtedness of the state to a sum not exceeding $15,000,000, and
to agree with the holders of the consolidated bonds that said
indebtedness should not be increased beyond that sum during said
period. On the day of passing this act, the general assembly passed
another act proposing to the people of the state an amendment to
the Constitution of the state, which was adopted at the ensuing
election, and provided that the issue of the consolidated bonds
authorized by the funding act should create a valid contract
between the state and each
Page 92 U. S. 534
holder thereof which the state should not impair; prohibited the
issue of any injunction against the payment of the bonds or levy of
the tax; directed that the latter should be levied and collected
without further legislation; and declared that whenever the debt of
the state should be reduced below $25,000,000, the constitutional
limit should remain at the lowest point reached, until it was
reduced to $15,000,000, beyond which it should not be
increased.
The language of this clause is explained by the fact that in
1870, a constitutional provision had been adopted limiting the
state debt to $25,000,000, and the further fact, stated in the
bill, that in 1874, when the funding act was passed, the
outstanding bonds and valid warrants fundable under the act equaled
this amount, so that, at sixty cents on the dollar, the debt to be
funded would require the issue of the whole $15,000,000 of
consolidated bonds. Besides these classes of debts, others to a
considerable amount were then outstanding, as will appear further
on.
The board of liquidation created by the funding act entered upon
the performance of their duties, and, up to the commencement of
proceedings in this case, they had issued a little over $2,000,000
under the act.
On the 2d of March, 1875, the general assembly passed an act
authorizing the board to issue a portion of the above-mentioned
consolidated bonds to the Louisiana Levee Company in liquidation of
a debt claimed to be due it under a contract made with the state in
1871 by which that company was to reconstruct and keep in repair
the levees on the Mississippi River and its branches and outlets.
The act of 1871, in and by which this contract was made, had
provided and set apart certain taxes to be levied and collected
throughout the state to meet the payments which would accrue to the
company. But it seems that these taxes had failed to reach their
destination, as a committee appointed by the Act of 1875, to
investigate the subject, reported that there was $1,700,000 still
due the company, which had accrued prior to October, 1873, and
which the act authorized the board of liquidation to pay in the
said consolidated bonds. This debt was not one of the debts to fund
which the consolidated bonds had been created. It was not
Page 92 U. S. 535
represented by outstanding bonds of the state, nor by valid
warrants of the state auditor, and the complainant in this case, in
his bill, insists that it is not a debt of the state at all, being
provided for by the special taxes appropriated for its payment.
Another objection made to the proposal to fund it is that it is to
be paid in full, whilst the funding act authorized the payment of
only sixty cents on the dollar of the debts to be replaced by the
issue of the consolidated bonds -- the great object of the act
being to effect a reduction of the state debt within manageable
limits. It is insisted that the Act of 1875, authorizing the
appropriation of consolidated bonds to the payment of the levee
debt, defeats this scheme and impairs the validity of the contract
made with those who have accepted the bonds according to the terms
of the Funding Act, and is therefore void. The plaintiff, being a
holder of these bonds, filed his bill for an injunction to prevent
the consummation of the wrong which he alleges will be committed by
carrying out the Act of 1875.
The decree of the court below is sought to be sustained on
several grounds. In the first place, the appellee contends that in
consequence of the provisions of the Funding Act and the
constitutional amendment adopted in confirmation of it, the state
debt cannot be increased, whereas the assumption of the levee debt
(which, it is contended, is not a debt of the state) will directly
increase it. As a part of the same proposition, it is contended
that the state has deprived itself of the right to issue any bonds
at all, except the consolidated bonds created by the Funding Act,
to be exchanged for outstanding debts already existing.
We are not prepared to say that the legislature of a state can
bind itself, without the aid of a constitutional provision, not to
create a further debt or not to issue any more bonds. Such an
engagement could hardly be enforced against an individual, and when
made on the part of a state, it involves, if binding, a surrender
of a prerogative which might seriously affect the public safety.
The right to procure the necessary means of carrying on the
government by taxation and loans is essential to the political
independence of every commonwealth. By the internal constitution of
a government, it is true its legislature
Page 92 U. S. 536
may be temporarily restricted in this respect, as we have seen
is the case in Louisiana. But how or at whose instance such
restriction can be enforced may sometimes be a question of some
difficulty. In a clear case, of course, an unconstitutional
enactment will be treated as void as against the rights of an
individual. But there are many constitutional provisions mandatory
upon the legislature which cannot be directly enforced -- the duty,
for example, when creating a debt, to provide adequate ways and
means for its payment. It affects the public generally, but no
individual in particular, in such manner as to give him a legal
remedy. So the state debt may be increased beyond the prescribed
limit, without admitting of judicial redress. It may arise
indirectly in the accomplishment of public works necessary to the
general safety and welfare, in such a manner as to make it
difficult to tell when the line is overpassed, or whose claims
arose after it had been overpassed. Executory contracts for the
preservation of the public levees may be greatly swollen by work
rendered necessary by the occurrence of unprecedented floods. Many
such cases and analogous ones might be readily supposed in which it
would be utterly impossible to observe the prescribed limits of
state indebtedness. And as the amount of state debt is a matter of
eminently public concern and the enactment of laws on the subject
cannot be controlled by the judiciary, it may admit of doubt
whether, in any case, the courts, at the instance of an individual
citizen, even a taxpayer (who would be most directly interested),
would undertake to restrain the state officers in the execution of
such laws. At all events, the case should be a very clear one to
induce them to interpose by injunction or mandamus. But where a
person is neither a citizen nor a taxpayer, but is a citizen of
another state and presents himself simply in the character of a
creditor of the state, the courts would hardly be justified in
interfering on his behalf to prevent a supposed violation of the
state constitution by an increase of the state debt. His interest
is too remote to give him a standing in court for any such
purpose.
But in the case before us, the assumption on which this part of
the case is based does not appear to be well founded. It is not the
creation of a new indebtedness which the board of
Page 92 U. S. 537
liquidation propose. The amount payable to the levee company for
its services is nonetheless a debt because it is already provided
for by a special tax, and so far as the state is concerned, it is
no more of a public burden when chargeable upon one fund than it is
when chargeable upon another. If the general assembly, with the
company's assent, sees fit to alter the mode of payment, it is
difficult to see who else has a right to complain unless specially
injured by the change. The tax formerly appropriated to it will be
liberated and made available for other state purposes. The other
creditors of the state cannot possibly be injured if nothing is
appropriated to the payment of the claim which has been pledged to
them.
The plea of increase of state indebtedness, therefore, cannot
avail in this case, and so much of the decree as prohibits the
levee company from receiving any state bonds whatever in
liquidation of its claim is untenable and must be reversed. The
claim itself, for anything that appears in the record to the
contrary, is a perfectly valid one against the state. It is not
even alleged to have arisen after the state indebtedness had
arrived to the constitutional limit of $25,000,000; nor is it
denied that it was founded on a good consideration.
The question, however, remains whether, even supposing the levee
debt to be a valid one, it can be lawfully funded in the
consolidated bonds in view of the other stipulations of the Funding
Act.
The principal stipulations of this act, aside from that
respecting the increase of the state debt, are
first that
the consolidated bonds shall not exceed in amount $15,000,000, or
so much thereof as may be necessary -- that is, necessary for the
purpose of consolidating and reducing the floating and bonded debt
of the state at sixty cents on the dollar;
secondly that
they shall only be used for exchange for said floating and bonded
debt, as designated in the act, which does not embrace the levee
debt in question, and that such exchange shall be at the rate of
sixty cents in consolidated bonds for one dollar in outstanding
bonds and warrants;
thirdly that a tax of five and a half
mills on the dollar of the assessed value of all the real and
personal property of the state shall be annually levied and
collected for paying the interest and principal of the bonds,
and
Page 92 U. S. 538
is set apart and appropriated for that purpose and no other, any
surplus beyond paying interest to be used for the purchase and
retirement of the bonds;
fourthly, that the power of the
judiciary, by means of mandamus, injunction, and criminal
procedure, shall be exerted to carry out the provisions of the
act.
The precise manner in which these stipulations will be violated
by the proposed funding of $1,700,000 of the levee debt at par, as
insisted by the plaintiff, is this:
first that the entire
issue of bonds will be increased by that amount, thereby
diminishing the relative security provided for each bond.
Secondly that the levee company will receive the full
amount of its debt, whilst the complainant, and others in like case
with him, have accepted sixty cents on the dollar for their old
bonds, on the faith that no one should receive any more.
Thirdly that the benefits of the scheme propounded by the
Funding Act will be lost by such a violation of it, and all the
advantages anticipated by the complainant and others in
surrendering their original debts will fail.
In answer to the first of these supposed violations -- namely,
that the issue of consolidated bonds will be increased by the
amount of the levee debt -- it may be said that the amount of the
consolidated bonds is expressly limited to $15,000,000, and there
is no pretense that the board of liquidation intend to issue more.
The proposed appropriation might have the effect of excluding from
the benefit of the Funding Act some of the outstanding obligations
of the state originally intended to be embraced within its
provisions. But it will not increase the total amount of the
consolidated bonds. The complainant can hardly contend that he has
a right to prevent the state from using the bonds for funding its
other debts, if those for which they were intended should not be
surrendered. It is a question of power. The Funding Act gives the
board of liquidation power to issue $15,000,000 of these bonds, or
so much thereof as may be necessary to fund the outstanding
floating and bonded debt, and it is admitted that the amount of
that debt is sufficient to absorb the whole $15,000,000. He cannot
say, "I am entitled to the chances of some of the designated
creditors not coming in." He cannot be injured, so far as this
objection goes, if the amount of bonds ultimately
Page 92 U. S. 539
issued does not exceed the limit of $15,000,000. It may very
well be that some of the creditors whose debts were intended to be
funded will refuse to come in and accept the terms of the Funding
Act. If that should be so, it might greatly embarrass the financial
affairs of the state to have to appropriate the entire tax of five
and a half mills to a mere fraction of the debt it was intended to
provide for, which was $15,000,000. To tie the hands of the state
under such circumstances would be to give the complainant the
advantage of a technicality to the great injury of the state. It
would be adhering to form rather than to substance. The complainant
consented, when he took his bonds, that there might be $15,000,000
of them issued. He cannot justly complain if that amount is not
exceeded, even though the debts funded thereby are not precisely
those specified in the act, provided the material terms of the act
are complied with. In any case, those that are not funded must be
provided for in some other way, and unless some special reason
exists why one debt should be funded instead of another, the
complainant cannot be injured. He has failed to show any such
reason in his bill.
If, therefore, the substitution of one debt for another in the
participation of the benefits of the Funding Act were all that is
proposed to be done by the defendants, the complainant would have
great difficulty in maintaining a bill in equity for the purpose of
enjoining the officers of the state from carrying out the law
passed in 1875. But this is not all that they propose to do. The
proposed funding of the levee debt in the manner provided by that
act would break up the whole scheme of the Funding Act and destroy
all the benefits anticipated from it -- benefits on which those who
accepted its terms had a right to rely.
It was the special object of that scheme, by providing
extraordinary security and sanctions for the payment of the
consolidated bonds, to induce the public creditors to reduce their
claims forty percent and exchange them for these new securities,
and thus diminish the aggregate indebtedness of the state
$10,000,000. This result would enhance the general credit of the
state and enable it to meet all its obligations and engagements
with more certainty and less liability to failure.
Page 92 U. S. 540
The complainant and others who have surrendered their old bonds
and taken sixty percent of the amount in the new bonds in full
satisfaction did so on the faith that the scheme should be carried
into effect as a whole and that all others taking the benefit of
the act should be subject to the same condition that they were. It
cannot be supposed that they would have made the sacrifice they did
without relying, as they had a right to do, on this essential
feature of the scheme being rigidly carried out. The proposal to
fund the levee debt at par entirely interferes with its
accomplishment and makes an unjust discrimination between one class
of creditors and another.
It is this aspect of the Act of 1875 and the proposed
proceedings under it of which the petitioner has special reason to
complain, and which furnishes substantial ground for giving him
relief.
True, it may be objected even to this view, as to the former
one, that the bondholders of the state may refuse to come in and
make the sacrifice required by the act, and in such case the state
ought not to be forever precluded from making such other
disposition of the unissued consolidated bonds as may be beneficial
to it without being injurious to those who have accepted such
bonds. If such a state of things should arise after due time and
opportunity shall have been given to test the practicability of
carrying out the scheme, it will undoubtedly furnish proper ground
for modified legislation, having due regard to the rights already
vested. But the act in question was passed within three months
after the adoption of the constitutional amendment confirmatory of
the Funding Act, and before its practicability could possibly have
been ascertained, and no attempt was made by the act to reinstate
the bondholders who had come in to their former position or to
return to them the forty percent of their claims which they had
surrendered or in any manner to obviate the inequality and
injustice to which they would be subjected by the change of
plan.
In our judgment, therefore, the court below was right in
granting the injunction as to the consolidated bonds, if the
defendants, occupying the official position they do, are amenable
to such a process.
Page 92 U. S. 541
On this branch of the subject, the numerous and well considered
cases heretofore decided by this Court leave little to be said. The
objections to proceeding against state officers by mandamus or
injunction are first that it is in effect proceeding against the
state itself, and secondly that it interferes with the official
discretion vested in the officers. It is conceded that neither of
these things can be done. A state, without its consent, cannot be
sued by an individual, and a court cannot substitute its own
discretion for that of executive officers in matters belonging to
the proper jurisdiction of the latter. But it has been well settled
that when a plain official duty requiring no exercise of discretion
is to be performed and performance is refused, any person who will
sustain personal injury by such refusal may have a mandamus to
compel its performance, and when such duty is threatened to be
violated by some positive official act, any person who will sustain
personal injury thereby for which adequate compensation cannot be
had at law may have an injunction to prevent it. In such cases, the
writs of mandamus and injunction are somewhat correlative to each
other. In either case, if the officer plead the authority of an
unconstitutional law for the nonperformance or violation of his
duty, it will not prevent the issuing of the writ. An
unconstitutional law will be treated by the courts as null and
void.
Osborn v. Bank of the
United States, 9 Wheat. 859;
Davis
v. Gray, 16 Wall. 220.
Decree affirmed so far as it prohibits the funding of the debt
due to the Louisiana Levee Company in the consolidated bonds issued
or to be issued under the Funding Act of Jan. 24, 1874, and
reversed as to so much thereof as prohibits the issue of any other
bonds to said Louisiana Levee Company in liquidation of said
debt.
MR. JUSTICE FIELD did not sit in this case, and took no part in
the decision.