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some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 209; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 393. To this class belongs also the recent case of U. S. v. Lee, 106 U. S. 196, [S. C. 1 SUP. CT. REP. 240,] for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants, Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and, therefore, insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession.

3. A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. Of this class are writs of mandamus to public officers, as in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; U. S. v. Schurz, 102 U. S. 378; U. S. v. Boutwell, 17 Wall. 604. But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer.

It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premises. Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203. In that case, the state of Texas having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the state land-office and the governor of the state were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court enjoined them from doing this by its decree, which was affirmed in this court. Judge HUNT did not sit in the case, and Justice

DAVIS and Chief Justice CHASE dissented, on the ground that it was in effect a suit against the state. Though there are some expressions in the opinion which are unfavorably criticised in the opinions of both the majority and minority of this court in the recent case of U. S. v. Lee, supra, the action of the court has not been overruled. But it is clear that, in enjoining the governor of the state in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further. Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company.

The case of the Board of Liquidation v. McComb is to the same effect. The board of liquidation was charged by the statute of Louisiana with certain duties in regard to issuing new bonds of the state in place of old ones, which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the circuit court enjoining the board from exceeding its power in taking up by the new issue a class of state indebtedness not within the provisions of the law on that subject. U. S. 531.

92

In the opinion in that case the language used by Mr. Justice BBADLEY well and tersely thus expresses the rule and its limitations:

"The objections to proceeding against state officers by mandamus or injunction are—First, that it is in effect proceeding against the state itself; and, second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these can be done. A state, without its consent, cannot be sued as 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 settled that where a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel 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."

It is believed that this is as far as this court has gone in granting relief in this class of cases. The case of Osborn v. Bank of U. S. 9 Wheat. 738, often referred to, was upon this principle, and goes no further; for, in that case, a preliminary injunction of the court forbidding the state officer from placing the money of the bank, which he had seized, in the treasury of the state, having been disregarded, the final decree corrected this violation of the injunction by requiring the restoration of the money thus removed. See Louisiana v.

Jumel, 107 U. S. 711; [S. C. 2 SUP. CT. REP. 128.]

On the other

hand, in the cases of Louisiana v. Jumel and Elliott v. Wiltz, decided at the last term, very ably argued and very fully considered, the court declined to go any further. 107 U. S. 711; [S. C. 2 Sup. Ct. REP. 128.]

In the first of these cases the owners of the new bonds issued by the board of liquidation, mentioned in McComb's Case, supra, brought their bill in equity, in the circuit court of the United States, to compel the auditor of state and the treasurer of the state to pay out of the treasury of the state the overdue interest coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the state court for a writ of mandamus to the same officers, which suit was removed into the circuit court of the United States. In this they asked that these officers be commanded to pay out of the moneys in the treasury the taxes which they maintained had been assessed for the purpose of paying the interest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government. The circuit court refused the relief asked in each case, and this court affirmed the judgment of that court. The short statement of the reason for this judgment is that as the state could not be sued or made a party to such proceeding, there was no jurisdiction in the circuit court, either by mandamus at law or by a decree in chancery, to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in the treasury in the manner which the court might think just. The chief justice said:

"The treasurer of the state 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 him—that is to say, into the state treasury-just as other taxes were when collected. He is no more a trustee of these moneys than he is of all other public moneys. He holds them only as 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 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."

We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the state or federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, as for injuries to person or to property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority

of law to sustain him in what he has done, like any other defendant he must show it to the court and abide the result. In either case the state is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority.

Courts of equity proceed upon different principles in regard to parties. As was said in Barney v. Baltimore, 6 Wall. 280, there are persons who are merely formal parties without real interest, and there are those who have an interest in the suit, but which will not be injured by the relief sought, and there are those whose interest in the subject-matter of the suit renders them indispensable as parties to it. Of this latter class the court said, in Shields v. Barrow, 17 How. 130, "they are persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final disposition may be wholly inconsistent with equity and good conscience." "In such cases," says the court in Barney v. Baltimore, supra, "the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction." In the case now under consideration the state of Georgia is an indispensable party. It is in fact the only proper defendant in the case. No one sued has any personal interest in the matter, or any official authority to grant the relief asked. No foreclosure suit can be sustained without the state, because she has the legal title to the property, and the purchaser under a foreclosure decree would get no title in the absence of the state. The state is in the actual possession of the property, and the court can deliver no possession to the purchaser.

The entire interest, adverse to plaintiff, in this suit is the interest of the state of Georgia in the property, of which she has both the title and possession. On the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers sued.

No money decree can be rendered against the state, nor against its officers, nor any decree against the treasurer, as settled in Louisiana v. Jumel, supra. If any branch of the state government has power to give plaintiff relief it is the legislative. Why is it not sued as a body, or its members by mandamus to compel them to provide means to pay the state's indorsement? The absurdity of this proposition. shows the impossibility of compelling a state to pay its debts by judicial process.

The decree of the circuit court is affirmed.

(109 U. S. 440)

JACKSON V. ROBY and another.

ROBY and another v. JACKSON.

(December 3, 1883.)

MINING CLAIMS-DEVELOPMENT OF-WORK OR EXPENDITURE ON ONE CLAIMACTS OF 1866 AND 1872.

When work or expenditure on one of several mining claims is allowed, under the act of congress, in place of the required expenditure on the claims separately, the work or expenditure must be for the purpose of developing all the claims, and not merely for the development of one claim without any reference to the development of the others.

In Error to the Circuit Court of the United States for the District of Colorado.

John D. Pope, for Jackson.

Amos Steck, for Roby and Rankin.

FIELD, J. Previous to the legislation of congress in 1866, mining claims upon the public lands of the United States were held under rules framed by miners themselves in different localities. These rules prescribed the extent of ground which miners could severally appropriate for mining, and the conditions upon which such ground could be acquired and held. They bore a general similarity in different districts, varying only according to the extent and character of the mines. They all agreed in one particular,-in recognizing discovery and appropriation as the source of title, and development by working as the condition of continued possession. The first discoverer could derive no benefit from his discovery unless he followed it up by work for the development of his claim; and what that work should be, the nature and extent of it, how soon it should commence after the discovery, and when its suspension should be deemed an abandonment of the claim, were specifically declared. The act of congress of 1866 gave the sanction of law to these rules of miners, so far as they were not in conflict with the laws of the United States. 14 St. c. 262, § 1. Subsequent legislation specified with greater particularity the modes of location and appropriation and extent of each mining claim, recognizing, however, the essential features of the rules framed by miners, and, among others, that which required work on the claim for its development as a condition of its continued ownership. The act of 1872-and its provisions are re-enacted in the Revised Statutes-declares that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located, an annual expenditure of $10 for each 100 feet in length along the vein; and provides that when such claims are held in common, the expenditure may be upon any one of them. And it declares that

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