State of Louisiana Elliott v. Jumel/Opinion of the Court

The legislature of Louisiana, at its session of 1874, by an act known as act No. 3 of 1874, provided for an issue of bonds, to be designated as consolidated bonds of the state, for the purpose of consolidating and reducing the floating and bonded debt. The bonds were to be payable to the bearer 40 years from January 1, 1874, and bear interest at the rate of 7 per cent. per annum, payable on the first day of July and the first day of January in each year. The amount was not to exceed in the aggregate $15,000,000. The governor, lieutenant governor, auditor, treasurer, secretary of state, speaker of the house of representatives, and a person to be elected by these officers as a fiscal agent of the state, were created a board of liquidation, with power to issue the bonds and exchange them for all valid outstanding bonds, and certain valid warrants on the treasury, at the rate of sixty cents in the new bonds for one dollar of old bonds and warrants. The bonds were to be signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer. Section 7 of the act was as follows:

'That a tax of five and a half mills on the dollar of the     assessed value of all real and personal property in the state      is hereby annually levied, and shall be collected, for the      purpose of paying the interest and principal of the      consolidated bonds herein authorized, and the revenue derived      therefrom is hereby set apart and appropriated to that      purpose, and no other; and that it shall be deemed a felony      for the fiscal agent or any officer of the state or board of      liquidators to divert the said fund from its legitimate      channel as provided, and upon conviction the said party shall      be liable to imprisonment for not more than ten years nor      less than two, at the discretion of the court. If there shall     during any year be a surplus arising from said tax after      paying all interest falling due in that year, such surplus      shall be used for the purchase and retirement of bonds      authorized by this act; said purchases to be made by the said      board of liquidation from the lowest offers, after due      notice: provided, that the total tax for interest and all      other state purposes, except the support of public schools,      shall never hereafter exceed twelve and a half mills on the      dollar. The interest tax aforesaid shall be a continuing     annual tax until the said consolidated bonds shall be paid or      redeemed, principal and interest; and the said appropriation      shall be a continuing annual appropriation during the same      period, and this levy and appropriation shall authorize and      make it the duty of the auditor and treasurer, and the said      board, respectively, to collect said tax annually, and pay      said interest and redeem said bonds until the same shall be      fully discharged.' By other sections it was provided that any judge, tax-collector, or any other officer of the state obstructing the execution of the act, or any part of it, or failing to perform his official duty, should be deemed guilty of a misdemeanor, and on conviction thereof punished; that each provision of the act should be, and was declared to be, a contract between the state of Louisiana and each and every holder of such consolidated bonds; that the tax-collectors should not pay over any moneys collected by them to any other person than the state treasurer; and that no court, or judge thereof, should have power to enjoin the payment of principal or interest of any of the bonds, or the collection of the special tax therefor. Immediately after the passage of this act the state adopted an amendment to its constitution, as follows:

'The issue of consolidated bonds authorized by the general     assembly of the state, at its regular session in the year      1874, is hereby declared to create a valid contract between      the state and each and every holder of said bonds, which the      state shall by no means and in no wise impair. The said bonds     shall be a valid obligation of the state in favor of any      holder thereof, and no court shall enjoin the payment of the      principal or interest thereof or the levy and collection of      tax therefor; to secure such levy, collection, and payment,      the judicial power shall be exercised when necessary. The tax     required for the payment of the principal and interest of      said bonds shall be assessed and collected each and every      year until the bonds shall be paid, principal and interest,      and the proceeds shall be paid by the treasurer of the state      to the holders of said bonds, as the principal and interest      of the same shall fall due, and no further legislation or      appropriation shall be requisite for the said assessment and      collection, and for such payment from the treasury.'

Under this authority, consolidated bonds to the amount of about $12,000,000 were issued. John Elliott, Nicholas Gwynn, and Henry S. Walker are the holders and bearers of these bonds to the amount of $20,000, and of unpaid coupons due January 1, 1880, to the amount of $78,900. The bonds, in accordance with the requirements of the act under which they were issued, are signed by the governor, auditor, and secretary of state, and the coupons by the auditor and treasurer.

On the first day of January, 1880, a new constitution of Louisiana went into effect. A portion of that constitution, called the 'Debt Ordinance,' is in these words:

'STATE DEBT.

'Article 1. Be it ordained by the people of the state of     Louisiana, in convention assembled, that the interest to be      paid on the consolidated bonds of the state of Louisiana be      and is hereby fixed at 2 per cent. per annum for 5 years from     the first day of January, 1880, 3 per cent. per annum for 15     years, and and 4 per cent. per annum thereafter, payable     semi-annually; and there shall be levied an annual tax      sufficient for the full payment of said interest, not      exceeding three mills, the limit of all state tax being      hereby fixed at six mills: provided, the holders of      consolidated bonds may, at their option, demand, in exchange      for the bonds held by them, bonds of the denomination of five      dollars, one hundred dollars, five hundred dollars, one      thousand dollars, to be issued at the rate of 75 cents on the      dollar of bonds held, and to be surrendered by such holders;      the said new issue to bear interest at the rate of 4 per      cent. per annum, payable semi-annually.

'Art. 2. The holders of consolidated bonds may at any time     present their bonds to the treasurer of the state, or to an      agent to be appointed by the governor,-one in the city of New      York and the other in the city of London,-and the said      treasurer or agent, as the case may be, shall indorse or      stamp thereon the words, 'interest reduced to 2 per cent. per     annum for five years from January 1, 1880, 3 per cent. per     annum for 15 years, and 4 per cent. per annum thereafter:     provided, the holder or holders of said bonds may apply to      the treasurer for an exchange of bonds,' as provided in the      preceding article.

'Art. 3. Be it further ordained, that the coupon of said     consolidated bonds falling due the first day of January,      1880, be and the same is hereby remitted, and any interest      taxes collected to meet said coupon are hereby transferred to      defray the expenses of the state government.'

Article 209 of the same constitution provides that 'the state tax on all property for all purposes whatever, including expenses of government, schools, levees, and interest, shall not exceed in any one year six mills on the dollar of its assessed valuation.' Elliott, Gwynn, and Walker demanded of the proper state officers payment of their coupons which fell due January 1, 1880, but such payment was refused, the auditor and treasurer stating 'that they could not comply with the request made of them, owing to the prohibition contained in article 3, state-debt ordinance of the constitution of the state of Louisiana, adopted twenty-third July, 1879, and recently promulgated.'

All the taxes allowed by the new constitution have been levied for the year 1880, but no proceedings have been taken to levy and collect the five-and-a-half mill tax under the act of 1874. About $300,000 is in the treasury of the state, collected under the levy imposed by the act of 1874 to meet the coupons falling due January, 1880, but the treasurer refuses to apply it to the payment of the coupons, and claims to hold it only for the purposes to which it was to be appropriated by the terms of the new constitution. There are also taxes levied for former years under the act of 1874 which remain uncollected, and which are subject to future collection and payment into the treasury under the operation of the collection laws.

In this condition of things, the appellants Elliott, Gwynn, and Walker, on the sixteenth of January, 1880, commenced a suit in equity in the circuit court of the United States for the eastern district of Louisiana, against the several officers of the state composing the board of liquidation, and the prayer of the bill is that it may be—

'Ordered, adjudged, and decreed' that the act No. 3, of 1874,     'so far as your orator's interests hereinabove declared are      concerned, was all the time from its passage, has been, and,      at the time of the rendition of the decree herein prayed for,      is a valid and subsisting law of the state of Louisiana; that      the act aforesaid, the constitutional amendment of 1874, and      the several bonds and coupons of interest held and owned by      your orators as aforesaid, separately and together,      constituted, were, and are good, valid, subsisting, and      binding contracts between the state aforesaid and the bearers      and holders of the consolidated bonds and coupons, the      obligation of which contract cannot be lawfully or      constitutionally impaired; and that, under and by virtue of      such contract, your orators were and are entitled to take and      enjoy all the rights, privileges, taxes, and moneys      particularly set forth and mentioned in act No. 3, and the constitutional amendment of 1874, aforesaid; that so much      of the aforesaid constitution of 1879 as alters, varies,      modified, or changes, or assumes, purports, or attempts to      alter, vary, modify, or change, the provisions of the said      act of 1874, and the constitutional amendment of that year,      especially article 208 of the constitution of the year 1879,      and that portion of such constitution known and distinguished      as the ordinance on 'state debt,' do impair the obligation of      the contract hereinabove referred to; that the said parts and      portions of such constitution are, therefore, violative of      the constitution of the United States, and are absolutely      null and void, and without the slightest force or effect      whatever against complainants; and afford and offer no      authority or warrant for the defendants, or any one or more      of them, to make such disposition or application of any part      or portion of the aforesaid taxes, and the proceeds thereof,      collected and to be collected, as to enable the state,      therewith, to defray the expenses of the state government, or      to accomplish any purpose or purposes other than those      prescribed in the aforesaid funding act, and constitutional      amendment of 1874; that the defendants, and each of them, may      be adjudged and decreed to replace and reinstate to the      credit of said interest fund any moneys or funds that may      have been diverted therefrom; *  *  * and that said defendants,      and each and every one of them, may be peremptorily enjoined      and restrained from recognizing as valid, against your      orators, article 208 of the constitution of Louisiana,' and      the 'debt ordinance,' and 'from ignoring the funding act and      constitutional amendment of 1874, and from doing, and causing      to be done, any act or thing whatsoever obstructing,      preventing, or impeding, or tending, directly or indirectly,      to obstruct, prevent, or impede, in the slightest degree, the      prompt, full, and complete execution and enforcement of the      act and constitutional amendment aforesaid; and, finally,      that the said defendants, and each and every one of them, may      be enjoined and restrained to such other and further extent,      and in such additional way and manner, as the court may deem      right and proper.'

On the twenty-sixth of January, 1880, the same parties as relators filed a petition in a state court of Louisiana against the auditor and treasurer of state and the several members of the board of liquidation, being Louis A. Wiltz, the governor, Samuel McEnery, lieutenant governor, Allen Jumel, auditor, Edward A. Burke, treasurer, William A. Strong, secretary of state, Robert N. Ogden, speaker of the house of representatives, and the State National Bank of New Orleans, fiscal agent, for a mandamus requiring them—

'To apply and pay to the extinguishment of the interest now     due and payable upon the consolidated bonds of the state of      Louisiana, or becoming due and payable upon said bonds, and      to the redemption and retirement of such consolidated bonds,      as are provided for and required by the aforesaid act No. 3      of the year 1874, any and all moneys and proceeds of the tax      levied or fixed by said act now in the hands or subject to      the control of the said defendants, or either one of them, or      which have been in the hands or subject to the control of the      said defendants, or either one of them, or which may come      into their hands or become subject to the control of either      of them, not already applied to the payment of interest upon      the aforesaid bonds, or to the redemption and retirement of      the bonds themselves, as provided for and required in and by      said act No. 3;' and that they 'may furthermore be commanded      and required to proceed, without delay, to collect the tax      fixed or levied in and by the aforesaid act No. 3 of the year      1874, in the manner and to the extent contemplated by that      statute, and to apply and pay all moneys realized from such      tax to the discharge of the interest and redemption of the      bonds issued under and by virtue of the aforesaid funding act      No. 3, *  *  * until the principal and interest of such bonds      be fully extinguished and discharged; and, finally, that the      said defendants may severally be commanded and required to      enforce the act herein above last referred to, and      particularly to carry out, perform, and discharge each and      every one and all the ministerial acts, things, and duties      respectively required of them by the aforesaid act No. 3,      according to the full and true intent and purport of that      act.'

This suit was afterwards removed into the circuit court of the United States for the eastern district of Louisiana.

Upon final hearing the circuit court denied the relief prayed for in each of the suits, because, as stated in the conclusions of law which were filed in connection with the findings of fact, it appeared that the respondents were constitutional officers of the state, and had no relation to the funds collected, or to be collected, except as such officers; that they were clothed with no authority and charged with no duty to pay over or collect said funds to or in behalf of the relators and complainants, but, on the contrary, by the organic law of the state, under which their offices were created and exist, the provisions of which constitute their sole mandate, are prohibited from so doing. For these reasons it was concluded that the state was the party which, by its action in its original capacity through the people, had rendered the execution of its contract with the relator impossible through the instrumentality of its officers or functionaries, and that the question presented was political rather than judicial, and could not be adjudicated without calling the state to the bar of the court and subverting its entire financial basis, no matter how unjustly adopted and ordained. From a judgment and decree to that effect a writ of error and appeal were taken to this court.

The two suits may properly be considered together here, as they were below, because they present substantially the same questions.

We have no doubt it was the intention of the state of Louisiana to enter into a formal contract with each and every holder of bonds issued under the act of 1874, to levy and collect an annual tax of five and one-half mills on the dollar of the assessed value of all the real and personal property in the state, and to apply the revenue derived therefrom to the payment of the principal and interest of the bonds, and to no other purpose. By the obligation so entered into it was also agreed that the tax levied by the act and confirmed by the constitution should be a continuing annual tax until the bonds, principal and interest, were paid in full; that the appropriation of the revenue derived therefrom should be a continuing annual appropriation; and that no further authority than that contained in the act should be required to enable the taxing officers to levy and collect the tax, or the disbursing officers to pay out the money as collected in discharge of the obligation of the bonds. Whatever may be ordinarily the effect of a promise or a pledge of faith by a state, the language employed in this instance shows unmistakably a design to make these promises and these pledges so far contracts, that their obligations would be protected by the constitution of the United States against impairment.

It is equally manifest that the object of the state in adopting the 'Debt Ordinance' in 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay the interest falling due in January, 1880, as well as the principal and interest maturing thereafter.

The bonds and coupons which the parties to these suits hold, have not been reduced to judgment, and there is no way in which the state, in its capacity as an organized political community, can be brought before any court of the state, or of the United States, to answer a suit in the name of these holders to obtain such a judgment. It was expressly decided by the supreme court of the state in State v. Burke, 33 La. Ann. 498, that such a suit could not be brought in the state courts, and under the eleventh amendment of the constitution no state can be sued in the courts of the United States by a citizen of another state. Neither was there when the bonds were issued, nor is there now, any statute or judicial decision giving the bondholders a remedy in the state courts or elsewhere, either by mandamus or injunction, against the state in its political capacity, to compel it to do what it has agreed should be done, but which it refuses to do.

These, then, are suits by creditors at large, of the class provided for in the act of 1874, to compel the officers of the state by judicial process to enforce the provisions of the act, when the state, by an amendment to its constitution, has undertaken to prohibit them from doing so, and when the court, if it requires an officer to proceed, cannot protect him with a judgment to which the state is a party. The persons sued are the executive officers of the state, and they are proceeded against in their official capacity. The money in the treasury is the property of the state, and not in any legal sense the property of the bond or coupon holders. If lost or destroyed, the loss will fall alone on the state or its agents, and the bondholders will be entitled to payment in full from other sources. True, the money was raised to pay this particular class of debts, and the agreement was it should not be used for any other purpose; but, notwithstanding this, the state has undertaken to appropriate it to defray the expenses of the government. In this way the state has violated its contract, and, if it could be sued, might perhaps be made to set aside its wrongful appropriation of the money already in hand, and raise more by taxation, if necessary.

That the constitution of 1879 on its face takes away the power of the executive officers to comply with the terms of the act of 1874 cannot be denied. As against everything but the outstanding bonds and coupons, this constitution is the fundamental law of the state, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders. The question, then, is whether the contract can be enforced, notwithstanding the constitution, by coercing the agents and instrumentalities of the state, whose authority has been withdrawn in violation of the contract, without having the state itself in its political capacity a party to the proceedings.

The relief asked will require to 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.

The parties prosecuting the suits do not, in direct terms, ask for the payment of the bonds and coupons they hold. In fact, this seems to have been purposely avoided, for in the suit for mandamus the petition was amended before the hearing by striking out all that would have the effect of confining the command of the writ to such a payment, and left the prayer for an order requiring the use of the money raised under the act of 1874 for the redemption and retirement generally of all the bonds and coupons of the issue. In the suit in equity, while it was asked that the debt ordinance of 1879 might be declared invalid as against the complainants, payment of the amount due was only sought through the general administration of the finances in accordance with the provisions of the act of 1874. In neither of the suits was any inquiry to be instituted in respect to the particular bonds and coupons held by the plaintiffs, or any special relief afforded as to them. All that is asked will inure as much to the benefit of the other holders of similar obligations as to the particular parties to these suits. So that the remedy sought implies power in the judiciary to compel the state to abide by and perform its contracts for the payment of money, not by rendering and enforcing a judgment in the ordinary form of judicial procedure, but by assuming the control of the administration of the fiscal affairs of the state to the extent that may be necessary to accomplish the end in view.

It is insisted, however, that the money in the treasury collected from the tax levied for the year 1879 constitutes a trust fund of which the individual defendants are ex officio trustees, and that they may be enjoined as such trustees from diverting it from the purposes to which it was pledged under the contract. The individual defendants are the several officers of the state, who, under the law, compose the board of liquidation. That board is, in no sense, a custodian of this fund. Its duty was to negotiate the exchange of the new bonds for the old on the terms proposed. It has nothing to do with levying the tax, collecting the money, or paying it out, further than by purchasing the bonds with any surplus there might be from time to time in the treasury over what was required to meet the interest. The provision in the law that it shall be the duty of the auditor, treasurer, and the board, respectively, to collect the tax, pay the interest, and redeem the bonds, evidently means no more than that the auditor and treasurer shall perform their respective duties under the general laws in the assessment and collection of the tax, and shall pay in the usual manner the interest and principal of the bonds as they respectively fall due, and that the board shall purchase and retire the bonds whenever there is a surplus that, under the law, is to be used for that purpose.

The treasurer of the state is the keeper of the treasury, and in that way is the keeper of the money collected from this tax just as he is the keeper of other public moneys. The taxes were collected by the tax-collectors and paid over to the state treasurer,-that is to say, into the state treasury,-just as other taxes were when collected. The treasurer is no more a trustee of these moneys than he is of all other public moneys. He holds them, but only as the agent of the state. If there is any trust, the state is the trustee, and unless the state can be sued the trustee cannot be enjoined. The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. It was never agreed that their relations with the bondholders should be any other than as officers of the state, or that they should have any control over this fund except to keep it like other funds in the treasury and pay it out according to law. They can be moved through the state, but not the state through them.

In this connection there is much that is instructive in the case of The Queen v. Lords Commissioners of the Treasury, L. R. 7 Q. B. 387. There money had been appropriated by parliament for the payment of costs of a particular character, and an application was made for a mandamus to compel the lords commissioners of the treasury to pay certain bills which had been properly taxed, but although the court was emphatic in its declaration that payment ought to be made, the writ was refused because the lords commissioners held 'the money as the servants of the crown, and no duty was imposed upon them as between them and the persons to whom the money was payable.' Lord Chief Justice COCKBURN, in his opinion, said, (page 394:) 'Though I quite agree that according to the appropriation act they (the lords commissioners) were bound to apply the money upon the vouchers being produced, and had no authority to retax these bills, still I cannot say that there is any duty which makes it incumbent upon them to do what I cannot hesitate to say they ought to have done, except as servants of the crown; because in that character they have received the money, and in no other.' And BLACKBURN, J., (page 399:) 'It seems to me that the obligation, such as it is, is upon her majesty, to be discharged through her servants, and you cannot proceed therefor against the servants.' So, here, the obligation is all on the state, to be discharged through its servants, and the money is held by the officers proceeded against in their character as servants of the state, and no other.

There is nothing in any of the cases in this court that are relied on, which, to our minds, authorizes any such relief as is asked.

In Osborn v. Bank of U.S. 9 Wheat. 738, which is the leading case and cited as authority in all the others, the object was to prevent money which had been unlawfully taken out of the bank by the officers of the state from getting into the treasury. The money was, in legal effect, stopped while passing from the bank to the treasury. The controlling facts are thus stated by Chief Justice MARSHALL in the opinion, (page 868:)

'But when we reflect that the defendants Osborn and Harper     are incontestably liable for the full amount of the money      taken out of the bank; that the defendant Currie is also      responsible for the sum received by him, it having come to      his hands with the full knowledge of the unlawful means by      which it was acquired; that the defendant Sullivan is also      responsible for the sum specifically delivered to him, with      notice that it was the property of the bank, unless the form      of having made an entry on the books of the treasury can      countervail the fact that it was, in truth, kept untouched,      in a trunk, by itself, as a deposit, to await the event of      the pending suit respecting it,-we may lay it down as a      proposition, safely to be affirmed, that all the defendants      in the case were liable in an action at law for the amount of      this decree. If the original injunction was properly awarded,     for the reasons stated in the preceding part of this opinion,      the money, having reached the hands of all those to whom it      afterwards came with notice of that injunction, might be      pursued, so long as it remained a distinct deposit, neither      mixed with the money of the treasury, nor put into      circulation. * *  * The money of the bank had been taken,      without authority, by some of the defendants, and was      detained by the only person who was not an original      wrong-doer, in a specific form; so that detinue might have      been maintained for it, had it been in the power of the bank      to prove the facts which are necessary to establish the      identity of the property sued for.'

Under this state of facts the order for its return involved no question of power to interfere with what was actually in the treasury. The officers stood in the place of a sheriff who had levied an execution on goods and was sued to test his right to keep them, and the principle applied in the decision is thus stated in the head-note of the report: 'A court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner, such as negotiable stocks and securities.' Thus the money seized was kept out of the treasury, because if it got in, it would be irretrievably lost to the bank, since the state could not be sued to recover it back. No one pretended that if the money had been actually paid into the treasury, and had become mixed with the other money there, it could have been got back from the state by a suit against the officers. They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them individually for the wrongs they had personally done, and could have no effect on the money which was held by the state. Certainly no one would ever suppose that by a proceeding against the officers alone, they could be held as trustees for the bank, and required to set apart from the moneys in the treasury an amount equal to that which had been improperly put there, and hold it for the discharge of the liability which the state incurred by reason of the unlawful exaction.

In Davis v. Gray, 16 Wall. 203, the receiver of a land-grant railroad obtained an injunction against the governor and commissioner of the land-office of Texas to restrain them from incumbering, by patents to others, lands which had been contracted to the railroad company. The legal title was in the state, but the equitable title in the company. The specific tracts of land in dispute were, by the contract which had been made, segregated from the public domain and set apart for the company. The case rests on the same principle it would if patents had been actually issued to the company, and the state, through its officers, was attempting to place a cloud on the title by granting subsequent patents to others.

In Board of Liquidation v. McComb, 92 U.S. 531, which arose under the same act of 1874 that we are now considering, the board of liquidation was enjoined, at the instance of bondholders, from admitting to the privileges of the compromise proposed by the state certain persons other than those originally provided for and on different terms. And this clearly because the board of liquidation was, by the very terms of the law, charged with the duty of exchanging the bonds specifically set apart by the contract for a particular purpose, and every bona fide bondholder, by accepting the compromise offered, became personally interested in securing the due administration of the trust which had thus been committed to the board. In fact, the board held the new issue of bonds in trust, and every one who gave up his old obligations and accepted the new in settlement became a beneficiary under the trust, and might act accordingly.

In this case, however, there is no such trust. As has already been said, the board is charged with no duty in respect to the taxes, except in connection with the purchase of bonds whenever there are funds which can be used in that way. The auditor and treasurer are required to audit and pay the coupons as they are presented, but that does not make them trustees for the bondholders of the money in the treasury out of which the payment is to be made. They may draw on the fund raised to make the payment, but that is the extent of their official control over it. The law has never made it a part of their official duty to separate from the other moneys in the treasury that which was realized from the taxes in question, and hold it in trust for the bondholders. The state has contracted not to use this money in any other way than to pay the debt, but, as against the state, the officers have no right to say they will keep it for that purpose only. It may be, without doubt, easily ascertained from the accounts how much of the money on hand is applicable to the payment of this class of debts, but the law nowhere requires the setting apart of this fund any more than others from the common stock. In the treasury all funds are mingled together, and kept so until called for to meet specific demands.

In the Arlington Case, decided at this term, 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.

Little need be said with special reference to the suit for mandamus. In this no trust is involved, but the simple question presented is whether a single bondholder, or a committee of bondholders, can, by the judicial writ of mandamus, compel the executive officers of the state to perform generally their several duties under the law. The relators do not occupy the position of creditors of the state demanding payment from an executive officer charged with the ministerial duty of taking the money from the public treasury and handing it over to them, and, on his refusal, seeking to compel him to perform that specific duty. What they ask is that the auditor of state, the treasurer of state, and the board of liquidation may be required to enforce the act of 1874, and 'carry out, perform, and discharge each and every one of the ministerial acts, things, and duties respectively required of them, * *  * according to the full and true intent and purport of that act.' Certainly no suit begun in the circuit court for such relief would be entertained, for that court can ordinarily grant a writ of mandamus only in aid of some existing jurisdiction. Bath Co. v. Ames, 13 Wall. 247; Davenport v. Dodge Co. 105 U.S. 242. Our attention has been called to no case in the state courts of Louisiana in which such general relief has been afforded, and the jurisdiction of the circuit court was, therefore, in no way enlarged through the operation of the removal acts, even if this is a case which was properly removed,-a question we do not deem it necessary now to decide. The remedy sought, in order to be complete, would require the court to assume all the executive authority of the state, so far as it related to the enforcement of this law, and to supervise the conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full, and that, too, in a proceeding to which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdictian, and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has by its act of submission allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the state. In our opinion to grant the relief asked for in either of these cases would be to exercise such a power.

The decree in the suit in equity and the judgment in that for mandamus are affirmed.