has been shown to be invalid, and it still desires to use the property, or any part of it, for the purposes to which it is now devoted, it may purchase such property by fair negotiation, or condemn it by a judicial proceeding, in which a just compensation shall be ascertained and paid according to the constitution.

If it be said that the proposition here established may subject the property, the officers of the United States, and the performance of their indispensable functions to hostile proceedings in the state courts, the answer is that no case can arise in a state court where the interests, the property, the rights, or the authority of the federal government may come in question, which cannot be removed into a court of the United States under existing laws. In all cases, therefore, where such questions can arise they are to be decided, at the option of the parties representing the United States, in courts which are the creation of the federal government. The slightest consideration of the nature, the character, the organization, and the powers of these courts will dispel any fear of serious injury to the government at their hands. While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive, and removable at his pleasure, with no patronage and no control of purse or sword, their power and influence rests solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives. From such a tribunal no well-founded fear can be entertained of injustice to the government or purpose to obstruct or diminish its just authority.

The Circuit Court was competent to decide the issues in this case before the parties that were before it. In the principles on which these issues were decided no error has been found, and its judgment is affirmed.

Mr. Justice GRAY delivered a dissenting opinion, in which the CHIEF JUSTICE, Mr. Justice BRADLEY, and Mr. Justice WOODS concurred.3

3 See observations of Justice Bradley in Carr v. United States, 98 U. S. 433, 437, 438, 25 L. Ed. 209 (1878); Hare, Constitutional Law, lecture 40, p. 887.

Followed: Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137 (1897).

See Herr v. Central Kentucky Lunatic Asylum, 97 Ky. 458, 462, 30 S. W. 971 (28 L. R. A. 394, 53 Am. St. Rep. 414) (1895): “As a necessary consequence of exemption of the state from suit without its consent, an action nominally against an officer, but really against the state, to enforce performance of its obligation in its political capacity, cannot be maintained. But if of

SECTION 43.-INJUNCTION-IN GENERAL

The following brief report indicates the use of injunctions against the action of administrative authorities at an early period:

BOX v. ALLEN, 1 Dickens, 49 (April 26, 1727): "Bill to be relieved against an order of the commissioners of sewers. Demurrer to so much of the bill as sought to alter any of the orders of the commissioners, or to return any money by them received, for that the remedy was at law, and no equity to be relieved in this court. The demurrer was overruled."

Generally speaking, however, such use is of relatively recent origin. See Kerrison v. Sparrow, Cooper's Cases in Chancery temp. Lord Eldon, 305 (1815); Movers v. Smedley, 6 Johns. Ch. (N. Y.) 28 (1822), Kent, Ch.: "This is not the case of a private trust, but the official act of a political body; and in the whole history of the English Court of Chancery there is no instance of the assertion of such a jurisdiction as is now contended for."

In many cases the remedy in equity has been applied without being questioned. See Cook Co. v. C., B. & Q. R. Co., 35 Ill. 460, 467; C., B. & Q. R. Co. v. Cole, 75 Ill. 591; Porter v. R., R. I., etc., R. Co., 76 Ill. 561; Hersey v. Board of Supervisors, 37 Wis. 75; Bank of Utica v. Utica, 4 Paige (N. Y.) 399, 27 Am. Dec. 71; Noble v. Union River Logging R. R., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123, post, p. 638 (see Cruickshank v. Bidwell, 176 U. S. 73, 80, 20 L. Ed. 280, 44 L. Ed. 377); Minnesota v. Hitchcock, 185 U. S. 373, 22 Sup. Ct. 650, 46 L. Ed. 954 (see Oregon v. Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935).

ficers or agents of the state invade private right in a mode not authorized by statute under which they claim to act, or if such statute is invalid, unquestionably the person injured has at least a preventive remedy, although the state may be affected by the proceeding, yet not a party to it."

See Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303, 88 N. E. 753 (1909): "It may be conceded that the state was in possession through the agency of its forest commission; but nevertheless an action of ejectment brought against the commission would be in effect an action against the state itself, judgment wherein would operate to deprive it of the property it had acquired by purchase."

As to what constitutes a suit against the state, see, further, In re Ayers. 123 U. S. 443, 501, 8 Sup. Ct. 164, 31 L. Ed. 216 (1887); Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535 (1899); Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932 (1908); and an article by Judge Jacob Trieber in 41 Am. Law Review. p. 844, on "Suability of States by Individuals in the Courts of the United States."

Robertson, Civil Proceedings by and against the Crown, p. 332: "It is clear from the statements made above that a petition of right lies for the recovery of lands, but instances outside of the Year Books have not been numerous.”

SECTION 44.

SAME TO RESTRAIN POLITICAL ACTS

AND REMOVAL FROM OFFICE

STATE OF GEORGIA v. STANTON.

(Supreme Court of United States, 1867. 6 Wall. 50, 18 L. Ed. 721.)

This was a bill filed April 15, 1867, in this court, invoking the exercise of its original jurisdiction, against Stanton, Secretary of War, Grant, General of the Army, and Pope, Major General, assigned to command of the Third military district, consisting of the states of Georgia, Florida and Alabama (a district organized under the Act of Congress of the 2d March, 1867, entitled "An act to provide for the more efficient government of the rebel states," and an act of the 23d of the same month supplementary thereto), for the purpose of restraining the defendants from carrying into execution the several provisions of these acts, acts known in common parlance as the "Reconstruction Acts." Both these acts had been passed over the President's veto. * * *

*

NELSON, J. * * By the second section of the third article of the Constitution "the judicial power extends to all cases, in law and equity, arising under the Constitution, the laws of the United States," etc., and, as applicable to the case in hand, "to controversies between a state and citizens of another state," which controversies, under the judiciary act, may be brought, in the first instance, before this court in the exercise of its original jurisdiction; and we agree that the bill filed presents a case which, if it be the subject of judicial cognizance, would, in form, come under a familiar head of equity jurisdiction—that is, jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another, where the danger, actual or threatened, is irreparable, or the remedy at law inadequate. But, according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity.

The remaining question on this branch of our inquiry is whether, in view of the principles above stated, and which we have endeavored to explain, a case is made out in the bill of which this court can take judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution cer

4 Only a portion of the opinion is printed.

tain acts of Congress, inasmuch as such execution would annul and totally abolish the existing state government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the state, by depriving it of all the means and instrumentalities where by its existence might, and otherwise would, be maintained.

This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government, as contemplated in these acts of Congress, which, it is charged, if carried into effect by the defendants, will work this destruction. But they are grievances, because they necessarily and inevitably tend to the overthrow of the state as an organized political body. They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them, and the resulting threatened mischief. So in respect to the prayers of the bill. The first is that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the state, which is or may be directed or required of them, by or under the two acts of Congress complained of; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed.

That these matters, both as stated in the body of the bill and in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court.

It is true the bill, in setting forth the political rights of the state and of its people to be protected, among other matters, avers that Georgia owns certain real estate and buildings therein, state capitol and executive mansion, and other real and personal property, and that putting the acts of Congress into execution, and destroying the state, would deprive it of the possession and enjoyment of its property. But it is apparent that this reference to property and statement concerning it are only by way of showing one of the grievances resulting from the threatened destruction of the state, and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground nor is it noticed. at all in the prayers for relief. Indeed, the case, as made in the bill, would have stopped far short of the relief sought by the state, and its main purpose and design given up, by restraining its remedial effect simply to the protection of the title and possession of its

property. Such relief would have called for a very different bill from the one before us.

Having arrived at the conclusion that this court, for the reasons above stated, possesses no jurisdiction over the subject-matter presented in the bill for relief, it is unimportant to examine the question as it respects jurisdiction over the parties defendants. Bill dismissed for want of jurisdiction."

* * *

In re SAWYER et al.

(Supreme Court of United States, 1888. 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402.)

Albert L. Parsons, police judge of the city of Lincoln, Neb., had been subjected to proceedings on the part of the mayor and the city council of said city looking to his removal from office. Claiming that such proceedings violated the provisions of the Constitution of the United States forbidding that any person should be deprived of life, liberty, or property without due process of law, as well as certain other provisions, he filed his bill in equity in the Circuit Court of the United States for the District of Nebraska, and obtained a pre

5 "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves. It is true that a state may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received by us. It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a state. The motion for leave to file the bill is therefore denied." State of Mississippi v. Johnson, 4 Wall. 475, 500, 18 L. Ed. 437 (1866).

In Wisconsin, the Supreme Court exercises original jurisdiction in equity for the purpose of determining the legality of the action of the Secretary of State in recognizing one of two rival factors as the regular party organization. State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964 (1904).