A bill praying an injunction against the execution of an act of Congress by the incumbent of the presscribes him as President or as a citizen of a state. idential office cannot be received, whether it de

[No. 14, Original.]

making a proper conveyance, or if valuable improvements had been made by the party in possession, there would have been a case for a decree of specific execution. As it was, the defendant declined to go on with the "trade," alleging that the plaintiff's farm was incumbered. He has given the key of the house to the complainant, which was set up as a delivery of possession, while the defendant denied any intention to make such delivery, and took forcible possession of his house. While this contest about the possession was going on, the defendant sold his house, and conveyed it to the wife of his counsel, who carried on the litigation for him before the justices, and here. The bill must fail

1. For want of clear, definite, and conclusive proofs of the contract.

2. For want of any delivery of peaceful and uninterrupted possession.

3. Or of valuable improvements made. We find no part execution on either side, nor anything but a breach of promise, and a consequent quarrel before the contract of exchange was executed.

Decree affirmed.

Messrs. W. L. Sharkey and R. J. Walker, for the motion:

Are there proper parties to this suit as complainant and defendants? The Constitution declares that "the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority." And it also declares that “in all cases affecting ambassadors, other public ministers, and those in which a state is a party, the Supreme Court shall have original jurisdiction." This is a case in equity and proper for the cognizance of a court of equity, as will be shown hereafter; it arises under the Constitution and a state is party complainant. That a state may sue by original bill in the Supreme Court of the United States has been settled by

this court.

It is important, however, to consider whether the President of the United States can be made a party defendant to this bill inasmuch as there is no precedent directly to the point. Yet, it is believed the question has been virtually settled by very high authority. It is important in this connection to mark the distinction between what are called political powers and such as are ministerial. In the exercise of discre

NOTE. When injunction to restrain acts of public officers will be granted; when it will not. An injunction will be granted against public officers only to prevent a breach of trust affecting public franchises or some illegal act under color or claim of right affecting injuriously the property rights of individuals, or the public, or where serious injury will result to private individuals without corresponding public benefit, or to prevent multiplicity of suits. Mott v. Pa. R. Co. 30 Pa. 9; Green v. Green, 34 Ill. 320: Green v. Mumford, 5 R. I. 472; New London v. Brainard, 22 Conn. 553; Brown v. Trustees of Catlettsburg, 11 Bush. 435; Collins v. Ripley, 8 Clarke, 129; Cooper v. Alden, Harrings, Ch. 72; Atty. Gen. v. Forbes, 2 My. & Cr. 123; People v. Canal Board, 55 N. Y. 390; People v. Albany, 55 Barb. 344; Mohawk, etc., v. Aitcher, 6 Palge, 83; Oakley v. Trustees, 6 Paige, 262; Green v. Oakes, 17 Ill. 294.

The legislation of a municipal corporation is not subject to restraint by injunction (People v. Mayor. etc. of N. Y. 9 Abb. Pr. 253; 10 Abb. Pr. 144 19 How. Pr. 155; 32 Barb. 9); nor the action of public officers constituting inferior quasi-judicialˇtribunals such as boards of supervisors, commissioners of highways, and the like, on matters properly per

dertake to control the action of officers, but not so with regard to ministerial duties, in the exercise of which no one is above the law, however exalted his position. Fortunately, we have neither a King, nor an Emperor, nor a Parliament, who are omnipotent, or above the Constitution.

Our Constitution declares that "the judicial power shall extend to all cases in law and equity arising under this Constitution," and thus the judiciary are made the guardians and protectors of the Constitution.

taining to their jurisdiction. Mooers v. Smedley, 6 Johns. Ch. 28; Mayor, etc. v. Meserole, 26 Wend. 132 Van Doren v. Mayor, etc. 9 Paige, 388; Livingstou v. Hollenbeck, 4 Barb. 10; Bouton v. Brooklyn, 15 Barb. 375; Gillespie v. Broas, 23 Barb. 370; Hyatt v. Bates, 40 N. Y. 164.

Where the public health is concerned, no application for an injunction will be entertained to restrain the execution of a contract tending to its preservation whatever may be the legal rights of the parties. Drydock, etc. Co. v. Mayor, etc. of N. Y. 55 Barb. 298; Hine v. City of New Haven, 40 Conn. 478 Kelsey v. King, 32 Barb. 410; aff'd, 33 How. Pr. 39.

Injunction will not be issued to prohibit person from taking possession of the books and papers of an office under color of title to the office. Updegraff v. Crans, 47 Pa. 103; Coulter v. Murray, 15 Abb. Pr. (N. S.) 129; 4 Daly, 506; Palmer v. Foley, 45 How. Pr. 110; 4 J. & Sp. 14; Hagner v. Heyberger, 7 Watts & S. 104.

Injunction will not issue to restrain any act within the discretion of a municipal corporation or its officers. Cleveland F. A. Co. v. Met. Fire Com'rs, 7 Abb. Pr. (N. S.) 49; 55 Barb. 288; Semmes v. Columbus, 19 Ga 171; McCafferty v. Glazier, 10

The President is but the creature of the Constitution, one of the agencies created by it to carry it into practical operation; and it would be strange indeed if he should be permitted to exert his agency in violating that instrument, and then claim exemption from the process of the court whose duty it is to guard it against abuses, because he is the chief executive officer of the government, and especially when he is exerting a mere ministerial duty, for that is all he does exert in executing an act of Congress; he has no discretion in the matter. The Constitution makes no distinction as to parties. The case is the criterion, no matter who is plaintiff or who defendant; and if the President be exempt from the process of the law, he is above the law. On this point, it would perhaps be sufficient to refer to the very elaborate and able decision of Chief Justice Marshall delivered on the trial of Aaron Burr. An application was made for a subpoena duces tecum to be directed to the President of the United States; and the application was resisted on the ground that the President was not amenable to the process of the court, and could not be drawn from the discharge of his duties at the seat of government, and made to attend the court sitting at Richmond. The Chief Justice drew the distinction between the President and the King of England, and held that all officers in this country were subordinate to the law and must obey its mandate and, therefore, sustained the application. The subpoena duces tecum was only a command to the President to do a particular thing. The injunction is but a command to him not to do a particular thing under a void authority. The principle is the same in the two cases, as well as the means of coercing obedience; and the reasoning of Chief Justice Marshall completely reaches and settles the question now before this court. The Constitution provides that all officers may be impeached; but this does not exonerate them from personal liability for acts done under color of office, the President as well as other officers. The whole question lies within a narrow compass. The Constitution is supreme; all officers are subordinate to the supreme law, and consequently subordinate to the command of that department whose duty it is to enforce subordination by declaring the meaning, the extent, and the limitations of the Constitution.

How. Pr. 475; 4 Abb. Pr. 57; Warfels v. Cochran, 34 Pa. St. 381.

The court has no jurisdiction to interfere with the public duties of any of the departments of the government or to override the policy of the state. Chicago v. Wright, 69 Ill. 318.

If the President be exempt, why not his cabinet officers? They all constitute but parts of the Executive Department of the Government; yet, in the case of Marbury v. Madison, 1 Cranch, 175, it was decided that the acts of the Secretary of State were the acts of the President, and that the Secretary might be subjected to the process of mandamus. Why would it not just as well lie against the President? It would be strange indeed to hold that the subordinate is liable and may be sued for acts which are the acts of his principal, and yet that the principal is not liable and cannot be subjected to the process of law. Even more recently this court has decided that officers of the executive departments are liable to the process of the court.

See Kendall v. Stokes, 12 Pet. 524; U. S. v. Guthrie, 17 How. 284, 15 L. ed. 102. The case of Ellis v. Earl Grey, 6 Sim. 214, is a leading case in England, and has been approved in this court.

In that case it was decided that the Lords of the Treasury, constituting a prominent Department of the Executive Government, might be enjoined by the Judicial Department. In that country the King is supposed to be above the law, and is the fountain of justice; yet his immediate subordinate departments are not above it. In this country the President is not above the law; it is above him, and hence he must be subject to its restraints.

The attention of the court is also invited to the decision of Chief Justice Bartley, in the case of the State of Ohio v. Salmon P. Chase, Governor, 5 Ohio St. 529. The objection was raised that a mandamus would not lie against the Governor. In delivering the opinion the Chief Justice says: "Under our system of government no officer is placed above the restraining authority of the law, which is truly said to be universal in its bequests, all paying it homage, the least as feeling its care, and the greatest as not being exempt from its power.' the Chief Executive officer of a state is liable to be controlled by the courts of the state in the discharge of ministerial duties, for much stronger reasons is the Chief Executive officer of the United States liable to be controlled by this court, under the provisions of the Federal Constitution. See, also, Hilliard on Injunctions, 374, and authorities cited.

If

An officer proceeding with a suit under authority from the court cannot be restrained by injunction. The proper method is to apply to the court for instructions to its officer. Winfield v. Bacon, 24 Barb. 154.

Courts of equity will not restrain a judicial officer from transcending his jurisdiction (McIntyre v. Hernandez, 39 How. Pr. 121: 7 Abb. Pr. [N. S.] 214; Vitt v. Owens, 42 Mo. 512; Justices v. Croft, 18 Ga. 473; People v. Coffin, 7 Hun, 608); nor restrain acts of police officers in the exercise of their duty (Sterman v. Kennedy, 15 Abb. Pr. 201; Prendoril v. Kennedy, 34 How. Pr. 416; Davis V. Soc. etc. 16 Abb. Pr. [N. S.] 73; Chicago v. Wright, 69 Ill. 318); nor restrain an officer from exercising duties of an office, during pendency of a suit, to test his right to the office. Beebe v. Robinson, 52 Ala. 66; Tappan v. Gray, 9 Paige, 507; 7 Hill, 259; People v. Draper, 24 Barb. 265; People v. Mattier, 2 Abb. Pr. (N. S.) 289; State v. Jarrett, 17 Md. 309; State v. Wolpenden, 74 N. C. 103.

ing the trial of his right to the office, unless it is shown that an action at law for the salary would not avail. Colton v. Price, 50 Ala. 424.

An injunction may be granted to prevent commissioners under an act of the legislature for the purpose of creating a new county from proceeding in violation of Constitution of the state (Bradley v. Com'rs, 2 Humph. 428). If the county has been fully organized and put into operation, under the act of the legislature, a court of chancery cannot abolish it or restrain its officers from performing their functions. Ford v. Farmer, 9 Humph. 152.

A department and its agents may be restrained from doing a public work in an improper manner Avery v. Fox, i Abb. U. S. 246.

Where a town has voted to loan its surplus revenue in an illegal and unauthorized manner, the trustees may be enjoined from complying with such vote. Pope v. Halifax, etc., 12 Cush. 411.

In the case of Green v. Mumford, 5 R. I. 472 the court said, in regard to officers: "If they are departing from the power which the law has vested in them; if they are assuming to themselves a power over property which the law does not give them, this court no longer considers them as acting under their commission, but treats them as individuals."

By the same principle the President, when acting in opposition to the Federal Constitution, may be treated as an individual.

Does the bill present a case proper for the interposition of this court? The Constitution gives to the Federal judiciary equity jurisdiction, and it is a familiar principle that wherever jurisdiction is given over to a particular subject or a particular branch of jurisprudence, it is ample for all purposes connected with the subject or the branch of jurisprudence.

This bill presents several grounds, on either of which a court of equity may rightfully take jurisdiction and give the relief sought.

In the first place, the acts under consideration violate the Constitution of the United States in So many particulars that it is not necessary further to attempt to enumerate them. It does more; it annuls and abrogates the state government and state constitutions, and substitutes a mere military power. The Constitution is of course the chief object of protection with all courts; when it is about to be violated the Federal judiciary will interpose for its protection. Thus, in the case of Osborn v. The Bank of the U. S., Wheat. 738, the Federal court took jurisdiction for the sole purpose of protecting a constitutional right.

Story, Eq. 34, 48, 110; Hilliard, Inj. 389; State of Pa. v. Wheeling Bridge, 18 How. 421, 15 L. ed. 435; Martin v. Hunter, 1 Wheat. 304; Carroll v. Safford, 3 How. 441; Cohens v. Virginia, 6 Wheat. 264.

A court of equity will always protect a franchise by restraining a threatened abuse.

2 Story, Eq. 766; Hilliard, Inj. 311. In the next place, the bill presents the case of a breach of agreement made with the state of Georgia under the compact of 1802, and of Virginia under the Ordinance of 1787, as well as with the state of Mississippi on its admission into the Union. These compacts, which are made "unalterable" and "irrevocable," are public documents, and we merely refer to them. Courts of equity will always interpose, not only to enforce agreements or compacts when that can be done on a proper case made, but also to prevent their violation.

Casey v. Holmes, 10 Ala. 776.

Again; the bill presents a patent case of irreparable mischief, and in such cases equity will always interpose to prevent the mischief. Mr. A. H. Garland, in favor of the motion: According to the provision already cited, the state of Mississippi is properly before the court. The language of the Constitution is broad and covers every conceivable case in which a state could be a party.

Conk. Tr. 4th ed. 14, 15, 16; Law Tr. 12, 98, note 1; Curtis, Com. 144, 145 and 153, 155; 1 Kent, Com. 359.

By the very authorities cited as to the party complainant, it is certain that the defendants to this bill are proper parties. No exception whatever is made in the Constitution, and the

act of 1789 uses the language "exclusive jurisdiction in all controversies of a civil nature where a state is a party." The Constitution makes no exception, and the judiciary act making none, it is a familiar principle of law, that the courts can make none. The court takes the law as it is, and it must be regarded as settled by this court, that the Constitution and the act of 1789 mean just what they say, and leave no room for the court to diminish or circumscribe this jurisdiction. If a state is "either nominally or substantially a party," the case is made.

Fowler v. Miller, 3 Dall. 411, 5 Cranch, 115; New Jersey v. New York, 5 Pet. 284; Georgia v. Brailsford, 3 Dall. 1; 2 Dall. 419; Rhode Island v. Mass. 12 Pet. 657; Cherokee Nation v. Georgia, 5 Pet. 1.

It has been held for a long time that the two sections of article III. of the Constitution, contain a full and complete vesting of the judicial power of the United States. Martin v. Hunter, 1 Wheat. 304; and Cohens v. Virginia, 6 Wheat. 264.

And if this be true, there can be no doubt that a party defendant must be brought in, and the court would not lose its jurisdiction because there was no established mode of proceeding, or because it had no name to give its writ or process. It will create a mode and make and name the process too, to enforce its jurisdiction. The reasoning of this court in Florida v. Georgia, 17 How. 478, 15 L. ed. 181, supports this position.

In 3 Opin. Atty. Gen. 471 (Mr. Grundy) it was said that the President could not be enjoined from paying money over to certain parties under a treaty stipulation, because the treaty had concluded the whole matter and the President could not be held thus as a stakeholder or a garnishee for litigants. So Mr. Lagare (Ib. 667) held, and for the same reasons, but admits that the President can be enjoined as to acts merely ministerial, and refers to the opinion of Mr. Wirt (1 Ib. 681) and he refers also to the Kendall Case, 12 Pet. 524, and Decatur's Case, 14 Pet. 487. In Kendall's Case it is expressly ruled, that the Executive Department can be reached by appropriate process in the performance of ministerial acts, and all that the court then said was afterwards reiterated in Decatur's Case, and these cases must be held conclusive on this point. In Brashear v. Mason, 6 How. 101. 102, Judge Nelson sustained Decatur's Case and Kendall's, and drew the distinction between those acts, purely ministerial, and those involving the exercise of judgment and discretion, and recognized the doctrine that as merely the Executive, exercising no discretion or judgment in the ordinary discharge of his duty, the officer could be reached by process of the court. So Judge Woodbury held in Reside v. Walker, 11 How. 272; and still more recently Judge Daniel, in U. S. v. Guthrie, 17 How. 304, 15 L. ed. 106, held the same doctrine; and see especially Marbury v. Madison, 1 Cranch, 136, and the comments thereon in Curtis, Com. 108, 109, 110, 113, and 159.

In the present case there is nothing for the President to do (to find no law or fact) but to proceed as an agent, with no discretion or judgment to be exercised, in the legal acceptation of these terms, to enforce this law; and most clearly the power of the court extends to