Page:Howell v. Miller.pdf/8

136 possession is in the plaintiff. If a suit against officers of a state to enjoin them from enforcing an unconstitutional statute, whereby the plaintiff’s property will be injured, or to recover damages for taking under a void statute the property of the citizen, be not one against the state, it is impossible to see how a suit against the same individuals to recover the possession of property belonging to the plaintiff, and illegally withheld by the defendants, can be deemed a suit against the state. Any other view leads to this result: That if a state, by its officers, acting under a void statute, should seize for public use the property of a citizen, without making or securing just compensation for him, and thus violate the constitutional provision declaring that no state shall deprive any person of property without due process of law (Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 236, 241, 17 Sup. Ct. 581), the citizen is remediless so long as the state, by its agents, chooses to hold his property; for, according to the contention of the defendants, if such agents are sued as individuals wrongfully in possession, they can bring about the dismissal of the suit by simply informing the court of the official character in which they hold the property thus illegally appropriated. It is true that even in such a case the citizen may, if he choose, rely upon the good faith of the state in the matter of compensation. But he is not compelled to part with his property for public use, except upon the terms prescribed by the supreme law of the land, namely, upon just compensation made or secured. * * * We are of opinion that this suit is not one against the state within the meaning of the eleventh amendment, and as the record before us shows that the plaintiff owns the premises, and is entitled to possession as against the defendants, the judgment must be affirmed.”

In this state of the law, it cannot be held that the official character of the present defendants constitutes of itself a reason why they may not be enjoined from infringing the rights, if any, which the plaintiff has under the copyright laws of the United States. A state cannot authorize its agents to violate a citizen’s right of property, and then invoke the constitution of the United States to protect those agents against suit instituted by the owner for the protection of his rights against injury by such agents. Of course, if property be the subject of litigation, and if the property belong to the state, and is in its actual possession by its officers, a suit against such officers to enjoin them from using and controlling the property would be regarded as a suit against the state, and, for the reasons stated in Belknap v. Schild, would be dismissed by the court.

The defendants, in the case before us, assert that the original manuscript constituting Miller’s compilation was and is the property of the state, and for this reason it is assumed that the doctrine of Belknap v. Schild determines the present case in their favor. It may be true—indeed, we think it is true—that the manuscript of the Miller compilation is the property of the state; and the mere preparation of such manuscript and the possession of it by the state do not constitute a legal wrong to the plaintiff. And if this suit had as its only object a decree disturbing the state's possession of that manuscript, and ordering the surrender of it to the plaintiff, or its destruction, so that it could not be used, we should say, according to the rule announced in Belknap v. Schild, that such a suit would be one against the state, and could not be entertained. But such is not the present case. Its principal object is to prevent the defendants from distributing or selling the Miller compilation so far as it has been printed, and from printing the part still in manuscript and in the hands of the public printer to be printed and delivered to the proper officers of the state for distribution and sale. Although the plaintiff may not,