Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/470

 § 4G2.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VHI. Accordingly, the corporation can defend its rights, not through a suit brought directly against the state, but by an action against any one acting, pursuant to the unconstitutional state law, in violation of the rights of the corporation. To such a person, whether acting as agent of the state, or as a private in- dividual, the unconstitutional state law, being void, will be no protection. And a state officer may be enjoined from execut- ing a state law in conflict with the constitution or laws of the United States. 1 A late decision in regard to the right of an individual to sue the officers and agents of the Federal government, is United States v. Lee. 2 There the defendants, making no claim as in- dividuals, held as agents for the Federal government by a title arising from a defective tax sale, lands which the government had converted into a national cemetery. The defendants as- serted, and it was asserted by the attorney -general on behalf of the United States, that, though it had been ascertained by a verdict of a jury, in which was no error, that the plaintiff had the title to the land in controversy, and that what was set up on behalf of the United States was no title at all, the court could render no judgment in favor of the plaintiff against the ing suit, of debts owing by the latter state to citizens of the former state. New Hampshire v. Louisiana, 108 U. S. 76. A state, without its consent, can- not be sued by an individual; and a court may not substitute its own discretion for that of executive offi- cers in matters belonging to the proper jurisdiction of the latter. But when a plain official duty, re- quiring no exercise of discretion, is to be performed, and performance is refused, any person who will sus- tain 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 450 injunction to prevent it. Board of Liquidation v. McComb, 92 U. S. 531; compare Louisiana v. Jumel, 107 U. S. 711, infra. A state waives its immunity from suit by appearing and intervening as a party defendant in a suit brought in a Federal court. Clark v. Barnard, 108 U. S. 436. 1 Davis v. Gray, 16 Wall. 203. In this case the receiver of a railroad company restrained by injunction the governor and certain other offi- cers of the state of Texas from issu- ing patents for lands which had been granted to the company. Da- vis v. Gray was questioned in Cun- ningham v. Macon and Brunswick R. R Co., 109 U. S. 440. 2 106 U. S. 196. See, also, In re Ayers, 123 U. S. 443.