Bledsoe v. International Railroad

40 Tex. 537

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinions

J. W. Ferris, Special Justice.

This case is brought here by an appeal from the judgment of the District Court of Travis county awarding a peremptory mandamus against the appellant, A. Bledsoe, Comptroller of the State of Texas, and commanding him to countersign and register five hundred State bonds, calling for one thousand dollars each.

The action is based upon an act of the Legislature of this State, passed August 5, 1870, entitled, “An act to incorporate the International Railroad Company, and to provide for the aid of the State of Texas in constructing the same,” and more particularly upon the 9th Section thereof, which is as follows:

“Sec. 9. In order to secure and promote the rapid construction of said railway, and thereby afford cheap and necessary facilities for emigration into the State, as well as speedy communication between the northeastern and southwestern boundaries, and with the Eastern and ¡Northern States, and to meet, as soon as practicable, the Avants of the people of this State in promoting the settlement of the vacant lands and development of its resources, the State of Texas consents, binds and obligates itself to donate, and hereby grants to said company, the bonds of the State of Texas to the extent and amount of ten thousand dollars per mile for each mile of said railroad constructed under this charter; said bonds to be of the denomination of one thousand dollars each, payable to the company or bearer in thirty years from the date thereof, with interest at thó rate of eight per cent, per annum, payable semi-annually, viz., on the first day. of January and the first day of July of each year; said bonds to have coupons attached, for each installment of interest which may become due — which said coupons shall be made payable upon presentation at the city of New York, through such agents of the State as the Governor may select and appoint to pay the same; said bonds shall be signed by the Governor and the Treasurer of the State of Texas, and countersigned and registered by the Comptroller, with the séal of the State of Texas affixed thereto, and shall be delivered by the Governor to the president or such other officer of said company as shall be specially appointed to receive and receipt for the same, on the sworn statement of the chief engineer of.' said company, and the written report of such officers or agents of the State as the Governor may have appointed for that purpose, that ten miles of said railroad have been completed in a thorough and substantial manner; which affidavit and report, together with the receipt for said bonds, shall be filed in the office of ■ the Secretary of State; provided, that no bonds under this act shall be issued to said company until it shall have completed at least twenty miles of said railroad, whereupon said bonds shall be issued and delivered 'for that amount of said railroad, and thereafter for every ten miles, according to the .terms and conditions of this charter. The Comptroller of the State shall cause to be assessed a tax upon all taxable property, real and personal, in the State, and upon all occupations, proportioned to the taxes levied by general law on such property and occupations, a sum sufficient annually to pay the accruing semi-annual interest on §aid bonds, and two per cent, as a sinking fund; which said sum shall be assessed and collected, and deposited in the treasury of the State, subject to the order of the Governor, to meet the payment of the interest coupons and the principal of said bonds as soon as- and whenever the same shall become due ; provided, that no greater tax shall be assessed and collected by authority of this section than may be needed from time to time’ to pay said interest and sinking fund.”

In the petition of the appellee it is represented that' the International Railroad Company is a body politic and corporate, created and established under said act that there was granted to said company the right to construct and own a railroad, and to maintain the same, across the State of Texas, and upon a line designated in said act; that after being duly organized the said company raised the necessary means and completed fifty-two-miles of railroad and fully equipped the same within the time required by said act; that the same was duly reported to the Governor, who thereupon appointed two persons as agents of the State to examine and report-upon the work; that it appeared from the sworn statement of the chief engineer of said company and the report of said agents that said fifty-two miles of railroad, work was of a superior quality, and was in full compliance with the requirements of said act; that thereupon-the said Governor, under said 9th Section of said act-,, caused five hundred bonds of the State of Texas, each, for the sum of $1000’, to be prepared, the same having-coupons attached and to run for thirty years ; that the-said Governor signed said bonds, and transmitted them to the Treasurer, who also signed them; that when the-same were transmitted by the Treasurer to the Comptroller, he failed and' absolutely refused to countersign and register the same; that it was the duty of said officer under said 9th Section to countersign and register said bonds (a copy of one of the bonds and a coupon attached being brought into court); that said company has no other remedy bub that which can be afforded by the writ of mandamus commanding the said Comptroller to countersign and register said bonds, and thereupon a peremptory mandamus is prayed for at the hearing in the District Court.

There were general and special demurrers to the petition, and an answer to the merits by the defendant. After the several demurrers were overruled, a trial was had on the facts; and upon a jury verdict judgment final was rendered against the defendant. There was also an intervention by the State of Texas, but as the same has been .abandoned no further notice need be taken of it.

The questions which first properly come up for consideration by the court, and which have been frilly and ably ■discussed by the counsel, arise upon the demurrers, and are these:

1. Does the record present a proper case for a mandamus, considered on general principles ?

2. Has the District Court the power and authority to compel the Comptroller of the State of Texas to countersign and register the State bonds ?

It is unnecessary to give an account of the origin and use of the writ of mandamus in England. It has been more or less employed in all the courts of America for many years, and the principles applicable to its use have been much discussed. It is sufficient to say that the proceeding by mandamus has for'its object the enforcement of a duty, and that it has ever been regarded as an extraordinary remedy, subject to important restrictions. A mandamus will issue to an officer of the government only when the duty to be performed is ministerial in its character ; and when a duty is imposed upon the officer requiring the exercise of judgment or discretion a mandamus will not lie. (5 Texas, 478; 12 Pet. R., 524, 609; 7 Cr. R., 504; 6 Wheat., 598; 6 How., 92.)

It was said by Justice Wheeler: “ The distinction between ministerial and judicial and other official acts seems to be, that when the law prescribes and defines the-duty to be performed with such precision and certainty as to, leave nothing to the exercise of discretion or judgment, the act is ministerial; but when the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial. (5 Texas, 479.)

This, perhaps, defines the rule as clearly as it can be-done, yet it must be admitted that "the use of terms-handed down from a country where a different government and different laws obtain is calculated to make it difficult of application to particular cases. The word “ministerial” has reference generally to an act done under authority of a superior; and in this sense it could never apply to the chief executive with respect to anything required by the legislative authority. The word “discretion” strictly applies to but few acts. The Grovernor has a discretion in the exercise of the pardoning power, and sometimes a court in determining the amount of a fine; but the instances are few indeed where an officer, executive or judicial, in exercising the functions of his office is left to act solely at his discretion. “ The discretion of a judge is said to be the law of tyrants.” (Bouvier.) So also the word “judgment” most generally has reference to some determination by a judicial tribunal. It is evident, then, that these words are not to be used in a restricted sense. Where the line of demarkation lies between a ministerial act and an act involving the exercise of judgment is not always easy to determine. In the case of Decatur v. Paulding, 14 Peters, 518, Justice Catron said: “Any sensible distinction applicable to-all cases it is impossible to lay down; such are the refinements and mere verbal distinctions'as to leave an almost unlimited discretion to the court. How easily the doctrine may be pushed and widened, to any extent, the case furnishes an excellent illustration. The process of' reasoning adopted by those who maintain the power to ^assume jurisdiction is, that where a right exists by law to •demand money of an officer and he refuses to paytthe •court can enforce the right by mandamus, and to ascertain the existence of the right it is the duty of the court ■to construe the law; and if by such construction the right is found and the refusal to pay ascertained to have been a mistake, then the officer will be coerced to pay ■out the money as a-ministerial duty.” This reasoning is' then pronounced an assumption which cannot be recognized.

. In this case it is contended, that under the 9th Section •of the act incorporating the International Railroad Company, the part to be performed by the Comptroller of the State, to-wit, countersigning and registering the bonds, is ¡a mere clerical or ministerial duty, in regard to which nothing is left to his discretion or judgment. There is discretion or judgment to be exercised somewhere, and by some person or persons; for it is expressly provided •“that no bonds shall be issued to said company until it ishall have completed at least twenty miles of said railroad,” etc.; and in the 13th Section of the same act it is provided that “the railroad of said company shall be thoroughly and substantially built; its iron rails shall be of weight not less than fifty pounds,” etc. It is evi•dent that the sworn statement of the engineer and the report of the agents were intended to furnish evidence only upon which the proper tribunal might act. It is said that this tribunal is the Governor; but it is difficult to see wherein the authority to decide is granted more to him than to the Treasurer or Comptroller. The injunction is, that “no bonds shall be issued” until a given amount of railroad work is completed, whereupon “ the bonds shall ;be issued and delivered,” etc. How, there .is a separate provision requiring, that the bonds be delivered by the Governor to the president of the company after they are executed ; why, then, use the expression “issued and delivered” in this prohibitory clause ? If by issued was intended only delivery, what would prevent the execution of the bonds and the accumulation of interest thereon long before the determination upon the work and the delivery?

It is more reasonable to conclude that the prohibition of the issuance of the bonds included also their execution ; and that, as it is necessary for the Governor, Treasurer and Comptroller to participate in their execution, it is the dirty of each one to see to it that the proper and necessary work is first performed; when, if in their judgment the law should be complied with by the company, the proper bonds could be issued, and by the Governor delivered to the company. The three highest executive officers of the State are brought to this work, involving a large financial operation, and it is evident that they are jointly and severally charged with the duty of protecting the interests of the State, involving more than can be properly said to be a mere clerical or ministerial duty.

Again, the act of countersigning and registering the State bonds by the Comptroller, as provided for by the law in this case, is an official act pertaining to one of the principal executive departments of this State, and ilecessarily calls for the exercise of judgment. It is believed that this position is well sustained by the best author ties.

In the case of Decatur v. Paulding, 14 Peters, 515, which was a proceeding for mandamus against the Secretary of the Navy of the United-States to enforce the payment of a half pension fixed by a special law of Congress, Chief Justice Taney, delivering the opinion of the court, said: “The duty required by the resolution was to be performed by the head of one of the executive departments of the government in the ordinary discharge of his official duties. In general such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion.. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is from time to time required to act. If he doubts, he has a right to call on the Attorney-General to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments unless their duties were regarded as executive, in which judgment and discretion were to be exercised.” The court cannot “by mandamus act directly upon such officer, and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties.”

The same doctrine was distinctly announced in the case of Kendall v. The United States, 12 Peters, 610, a leading case on this subject. The court then said: “The mandamus does not seek to direct or control the Postmaster General in the discharge of any official duty,” etc. And it was held in that case that “all room for the exercise of any discretion, official or otherwise, was shut out. by the direct or positive command of the law,” etc.

The-same principle is still more strongly stated in the later case of the United States v. Guthrie, 17 Howard, 303, when Justice Daniel, in delivering the opinion of the court, said: “It would occur a priori to every mind that a treasury not fenced round or shielded by fixed and established modes and rules of administration, but which could be subjected to any number or description of demands, asserted and sustained through the undefined! and undefinable discretion of the courts, would constitute-a feeble and inadequate provision for the great and inevitable necessities of the nation. The government, under such an absence of all rule, would, if practicable at all, be administered, not by the great departments ordained by the constitution and laws, and guided by the modes therein prescribed, but by the uncertain and perhaps contradictory action of the courts in the enforcement of their views of private interests.” The same court then proceeds to say that, “The power of the courts of the United States to command the performance of any duty by either of the principal executive departments, or such as is incumbent upon any executive officer of the government, has been strongly contested in this court, and in so far as that power may be supposed to have been conceded, the concession has been restricted by qualifications which would seem to limit it to acts or proceedings by the officer not implied in the several and inherent functions or duties incident to his effice — acts of a character rather extraneous, and required of the individual rather than of the functionary.” (See other authorities; 5 Texas, 479; Arberry v. Beavers, 6 Texas, 466.)

The Constitution of the State of Texas expressly names the Comptroller of Public Accounts as an executive officer of the government. (Art. 4, Sec. 1.) It assumes to define the powers and duties pertaining to his office. (Art. 4, Sec. 20.) “He shall superintend the fiscal affairs of the State; keep all the accounts of the State; audit all the claims against the State; draw warrants upon the Treasurer in favor of the public creditors, and perform such other duties as may be prescribed by law.” It provides that the Treasurer of the State “shall receive and take charge of all public money paid into the treasury; countersign all warrants drawn by the Comptroller; pay off the public creditors upon the warrant of the Comptroller,” etc. (Sec. 21.) It also provides that the Attorney-General shall give legal advice in writing to all officers of the government. (Sec. 23.)

The control and management of the fiscal affairs of a government is of the very highest importance. This power is given to the Comptroller. “He shall superintend,” which includes the power of directing under the law. True, he must “perform such other duties as may be prescribed by law,” but only such as are in conformity with the Constitution, and are compatible with his powers under it.

The Comptroller being thus placed at the head of the fiscal department, clothed with the power of directing the same, and entitled to bring to his aid able counsel, surely it was intended that in all matters pertaining to the duties of his office, under the Constitution, he should exercise judgment and discretion.

To countersign and register State bonds would manifestly be an official act, and one pertaining to his general duties under the Constitution; for that done, and the bonds would stand as audited and perfected claims against the government, and would perhaps operate as warrants on the Treasurer.

Furthermore, the Comptroller should determine, before countersigning and registering the bonds, whether they in all respects conform to the law; and should consider also the different provisions of the law as they relate to his obligations under the Constitution.

1. The bonds presented to him in this case, as appears from the record, are made payable in the city of New York, so also the coupons; when the act of incorporation' provides only that the coupons should be made payable in that city.

2. The act provides that he shall assess a tax on all the taxable property in the State, to meet the accruing interest on said bonds and to raise a sinking fund ; when no tax for that purpose appears to have been levied by the legislative authority.

3. The act provides that the fund raised by taxation, and deposited in the treasury, shall be subject to the order of the Gtovernor to meet the payment of the debt; when by the Constitution the - superintendence and direction of all ¡the fiscal affairs are given to the Comptroller.

All these and more are proper matters for the exercise of judgment, both upon the facts and in expounding the law, by an officer, touching the duties of his office, and with reference to a subject of such vital interest to the State. If, then, it is- considered by the courts of the United States that the heads of the executive departments, created by law only, and not by the "Constitution, are authorized to expound the law, and that the general duties pertaining to their office are not ministerial, is there not a greater reason for the rule as applied to an executive officer of this State, holding his trust directly from the people, and whose office is created by the Constitution, with its powers expressly defined therein ?

Again, “to entitle a party to this remedy by mandamus he must show a clear legal right in himself, and a corresponding obligation on the part of the officer; for if the right or the obligation be doubtful, the court will not interfere by this process.” (Arbery v. Beavers, 6 Texas, 473.) The fact alone that the bonds were made payable in New York, when the law does not authorize it, would show no obligation on the part of the Comptroller to countersign them.

Second. It is considered that the District Court has not the power and authority under the Constitution to compel an officer of the executive department of the government to perform an. official duty. This conclusion must follow from the structure of our government, and the distribution of power under the Constitution between the three independent departments of government.

This question was first raised and elaborately discussed in the United States Court, in the case of Kendall v. The United States, before referred to. And in the opinion of the court it was announced that, “The theory of the Constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the Constitution, the departments may be regarded as independent of each other.” (12 Peters, 609.) In the same case Chief Justice Taney, delivering a separate opinion, declined to discuss the question, saying that- “ the office of Postmaster General is not created by the Constitution, nor are its powers or duties marked out by that instrument. The office was created by act of Congress, and it may limit its powers and regulate its proceedings.” (12 Peters, 625.) It is noticeable, however, that the court in its ruling in that case, and in all the cases since that time touching the subject, has disclaimed any interference with the powers and official duties properly appertaining to the heads of the executive department of the government. (14 Peters, 515; 17 How., 303; 6 Wheat., 349.) This right of interference was expressly disclaimed by the court, as before shown, in the case of the United States v. Guthrie, 17 Howard, 303, and it .was then said that whenever the court has assumed to exert its power against any executive officer, it was only as “to acts of a character extraneous and required of the individual lather than of the functionary.” (17 Howard, 303.) It would seem that where a want of power in the courts to enforce a mandamus against a high executive officer has not been conceded, nearly the same end has been practically reached by a liberal construction as to the judgment and discretion necessary and proper to be exercised by such officer.

The question may be said to have been authoritatively settled in this State under the Constitution of 1845, in the case of the Houston Tap and Brazoria Railroad Company v. Randolph, 24 Texas, 335. The opinion appears to have been-rendered'after a contest showing research and ability, and by a full court. The following quotation from the opinion is here made, to-wit:

“The 2nd Article of the Constitution provides that ‘the powers of the government of the State, of Texas shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.’ Here is a direct prohibition of the blending of the departments. It contemplates that the persons employed in each department will be wise enough and honest enough to discharge the duties entrusted to them without the aid or interference of the others. And it is a full warrant for each department to disregard and repel such interference; for, as before said, each one of these departments acts under a delegated limited authority, and if one exceed its authority by usurping powers not belonging to it, its act is a nullity, not binding the other departments, and may be totally disregarded by them. If the Governor were to dictate to the judges the judgment to be pronounced, and enforce obedience by his power over the militia, the usurpation would be startling indeed, and too plain for discussion. Hot any more so in principle, however, than for the District Court of Travis county, or the Supreme Court of the State, to require by its mandate that the Governor of the State shall sign a patent to land, or the Comptroller shall audit an account, or the Treasurer of the State shall pay a draft upon the treasury.”

Since that ruling was published two constitutions of the State of Texas have been made (that of 1866 and that of 1869), and the same inhibition as to the exercise of power by persons of the different departments of government is retained, and doubtless with a full knowledge of the ruling of the court on this important question. And, as if it were intended by the framers of the Constitution now in force to leave no room for judicial construction, that instrument is made to expressly define the different executive offices which constitute the executive department, one of which is the Comptroller of Public Acccounts. (Art. 4, Sec. 1.) And with reference to the Comptroller, among others, it.expressly defines his powers and marks out the line of his duties (Art. 4, Sec. 20), which was never done before in any Constitution of this State. It is observable, also, that whereas under the old Constitution the supreme executive power was vested in the chief magistrate, under the present Constitution it is vested in the entire magistracy composing the executive department, with the powers of each separately defined. Are all these changes meaningless ? Surely not. They must have been intended to more clearly define the boundaries of power between the three great departments of the government, and also between the different offices composing the executive department.

These considerations furnish additional and very strong reasons why the court should adhere to the ruling made in the above case of the Houston Tap and Brazoria Railroad Company v. Randolph.

In the .different States of the Union the executive power is vested in the Governor, while in this State, as before stated, it is vested in the magistracy composing the executive department. The authorities are numerous sustaining the independence of the executive department. (Dennett, Pet., 32 Maine, 508; Mauran v. Smith, 8 R. I., 192; State v. The Governor, 1 Dutcher, N. J., 331; Law v. Towns, 8 Ga., 360; Hawkins v. The Governor, 2 Ark., 570.)

If there is no other remedy than by mandamus against the Comptroller for the non-performance of official duties, the same could be said of the Governor, and of a judge of the court. It is as reasonable to suppose that one officer would act up to the performance of duty as faithfully as another. Evidently this independence of power in the different departments was intended to act as a cheek and restraint against usurped authority.

The decisions of the Supreme Court of this State are relied on as authority in support of the jurisdictional right of the court to award a peremptory mandamus in this case. It may be well to determine the weight of such authority by examining into their origin and history. First, it must be considered that a petition for a writ of mandamus has never been sustained in this State against the Governor, Secretary of State, Comptroller, Treasurer, or Auditorial Board, though many have been filed and prosecuted. They have been sustained against the Commissioner of the General Land Office in very few instances —perhaps three or four out of the numerous cases wherein it has been attempted. (Horton v. Brown, 2 Texas R., 78; Ward, Commissioner, v. Townsend, 2 Texas R., 581; H. & G. N. R. R. Co. v. Kuechler, 36 Texas R., 382.)

In the first case, the suit above referred to was between two claimants, and the writ was incidental. In the second, there was no statement of facts, and the rule was adopted that ‘' in their absence the legal intendment is in favor of the correctness of the judgment.” In neither of the two first cases referred to was the question of the right to the writ argued by counsel, or discussed by the court. The early cases afterwards" determined by this court, in which the principles were énunciated as applicable to the remedy by writ of mandamus, were cases in all of which it was held that the writ could not be sustained. And the principles announced were assumed to be drawn mainly from the decisions in these two cases, and from the decisions of the Supreme Court of the United States upon that subject. (Glasscock v. Commissioner General Land Office, 3 Texas, 53; Bracken v. Wells et al., 3 Texas, 90; Commissioner General Land Office v. Smith, 5 Texas, 477; Arberry v. Beavers, 6 Texas, 464, and others.)

The rule announced by Justice Wheeler in delivering the opinion of the court in the case of Commissioner General Land Office v. Smith, as the conclusion thus arrived at, was that “a mandamus may issue to compel the Commissioner of the Greneral Land Office to issue a patent when it shall hate been made- to appear to the court that the right of the party is clear.” (5 Texas, 480.) Thus holding that, however complex the facts, or confused the law in the construction of it, when, after investigation in a court, the right is made to appear to be clear, the writ of mandamus would issue. That this was the exact position assumed may be seen by reference to his opinion in 5 Texas, 479. This, it is believed, extended the remedy far beyond the decisions quoted from the Supreme Court of the United States. Indeed, it has been held by that court that a mandamus could not issue against the Commissioner of the Greneral Land Office of the United States, in a case wherein there were complex facts to be examined into, requiring judgment, and which “ calls for the exercise of the judicial functions of the officer.” And upon the question as to whether a mandamus can be issued in any case against the Commissioner, it is said in that opinion, “we have found no case in which this power has been exercised. Patents are to be signed by the President in person, or in his name by a secretary, under his direction, and countersigned by the recorder of the G-eneral Land Office.” (United States v. The Commissioner, 5 Wall., 565.)

It must be recollected that this remedy was introduced in Texas mainly as an incident to suits between private litigants in the different counties of the State, which caused a statute to be passed requiring such suits against the heads of departments or bureaus to be brought in Travis county. (Act of 1846, Hartley’s Digest, Art. 643, p. 237.) However such act may have recognized the legality of such suits, it could not be held, either in its terms or by implication, to have enlarged and extended the remedy by mandamus beyond the enforcement of a merely ministerial act by any of such officers, while they were regarded as high executive officers of the State. (5 Texas, 478.)

It must be considered, also, that the office of Commissioner of the General Land Office, previous to the Constitution of 1869 (which made it a constituent portion of the executive department), was a mere commission to aid in perfecting and preserving land titles, and that the Commissioner was regarded and treated by the courts as merely a ministerial officer, whose office was created and shaped, and whose duties in said office were prescribed, entirely by the acts of the Legislature, and all of whose official acts and determinations, whether involving the exercise of judgment or not, were subject to be enquired into in a suit by mandamus. (Norton’s S. v. The Commissioner, etc., 2 Texas, 362; Com. G. L. O. v. Smith, 5 Texas, 479-80; Glasscock v. Com. G. L. O., 37 Texas, 53.) The limitations of the remedy to purely ministerial acts, as announced in the decisions of the Supreme Court of the United States (in 1 Cranch, 12 and 14 Peters, 6 Wheat., 6 Howard, 5 Wallace), though quoted as a basis, were never practically applied to the Commissioner in any of the decisions as it was applied to the acts of the heads of departments in the government of the United States. It must be observed, also, that none of those decisions in reference to the Commissioner consider or discuss the question of the division of the powers of government — treating the Commissioner as part of, or subject to, the executive department of the government.

The last case, wherein the writ was issued to the Commissioner, though decided since the Commissioner has been made a constituent portion of the executive department of the State by the Constitution of 1869, is rested upon previous decisions and general principles. (Railroad Co. v. Commissioner, 36 Texas, 382.)

Under the view here presented, it is not perceived that the decisions relating to the Commissioner of the General Land Office can be of any great weight of authority in this case.

At the late session of the State Legislature a compromise act, or act of adjustment, with the International Railroad Company was passed, and other questions have been presented for our consideration as if an adjudication thereon was contemplated by said act. There is a provision in the act that the same shall not be considered as in any way interfering with the litigation in this case. Moreover, there is no expression recognizing the State of Texas as a party to the suit. It having been already decided that the court has no jurisdiction over this case, any further opinion on the questions presented would be extra-judicial and without authority.

For the reasons given, it is considered by the court that the judgment of the court below be reversed and that the cause be dismissed.

Reversed akd dismissed.