The opinion o£ the Court was delivered by
Bermudez, C. J.
These two cases, consolidated by consent, are to be determined by the same judgment.
The first case has £or its object an injunction, which was to serve as a foundation for the other suit; the second case contemplates a mandamus, for the enforcement of rights intended to be protected by the injunction.
Their purpose was to prevent the State Auditor and the State Treasurer from disposing of certain public monies, in the State treasury, to which'plaintiff lays claim, and to compel those officers to pay, out of said monies, the amount demanded by the plaintiff, as due to him, viz : $75,000.
The complainant substantially avers, in his two petitions, blended together and taken as one—
That, by Act No. 3 of the year 1874, the State of Louisiana was authorized, for the purposes stated therein, to issue bonds for the sum of fifteen millions of dollars ($15,000,000) ; that he is the holder and owner of a large number of coupons, which were detached from bonds issued under that authority, and which fell due on the first of January, 1880 ; that provision was made by said act for the punctual and full [501]*501payment of the bonds and coupons issued thereunder, until the final retirement of the same ; that, under the terms of said act, taxes were to be and were actually levied and raised, to be appropriated exclusively to the payment of said debt ; that a large sum of such taxes, some $700,000 has been collected, and has been received by the State Treasurer and is in his keeping, custody and control as such ; that he has applied to the State Auditor to warrant on the State Treasurer for the payment of said coupons out of said sum ; that he has called upon the State Treasurer to pay said coupons out of said funds; that both the Auditor and the Treasurer have refused, the former to audit, the latter to pay, said coupons out of said funds; that he has good reasons to fear that, upon the pretended authority of an ordinance of the State Constitution, now in force, 'the said Auditor and the said Treasurer will illegally divert the sums so collected and on deposit, and’ in their control and disposition, and apply the same to purposes other than those eontemjplated by said act No. 3, of 1874 ; that there exists a formal contract between him and all bond and coupon holders, similarly situated, and the State of Louisiana, which contract is shielded from impairment by section 10 of article 1st of the Constitution of the United States ; that it is the duty of the Auditor to warrant, and of the Treasurer to pay, his said • coupons, regardless of said constitutional provision ; that he is entitled to an injunction against said State officers to prevent them from disposing, to his prejudice, of the sums aforesaid, and to a mandamus to compel them to audit and pay him the said coupons; and he prays for the process of the court against them only in their official capacity; and, after due course of law, that the injunction be perpetuated, and the mandamus be made peremptory.
The State Auditor and the State Treasurer made appearance.
After pleading to the jurisdiction of the court o.ver them, as executive officers of the government, they aver that the funds under their control and in their custody have come into their possession as State officers and as agents ;'that they have no power to draw the same from the State treasury, except in pursuance of specific appropriation made by law; that they have no power by law to audit the claim set up, allow and pay the same; that they have no right to decide whether the State is chargeable with them or not ; that the laws making appropiation of public monies do not provide for the payment of the claim set forth ; that the Constitution in force directs and orders that the fund out of which the plaintiff seeks to be paid be used to defray the expenses of the State government; that the State of Louisiana is a necessary party to these proceedings, which are directed against her property, and that no adjudication can be had herein.
The view which we have taken'of this case, does hot require that [502]*502we should pass upon the plea to the jurisdiction of the judiciary over them, set up by the respondents.
It is established by the evidence that, under the laws of the State collections upon assessments of taxes, largely exceeding the sum claimed by plaintiff, have been made and were to be, for the payment of the interest on the consolidated bonds mentioned in the petition ; that the payment of the taxes and the delivery of the amounts thereof into the State Treasury took place after the adoption of the Constitution now in force.
It appears that, under article 3 of the ordinance therein, relative to the State debt, whereby the coupon of said bonds falling due the first of January, 1880, was “remitted” thednterest taxes collected to meet said coupon were transferred to defray the expenses of the State government, and the funds so appropriated have been disposed of to some extent for the payment of the general expenditures of the State and of the interest for the public debt, not including the instalment maturing on January 1st, 1880.
The petitioner claims that all the laws, organic and legislative, and all administrative arrangements which remit said coupon, and which direct the transfer’and application of said interest taxes to defray the expenses of the State government, must be disregarded, as impairing the obligations of the contract in favor of the bond and coupon holders. He insists, that it is the imperative duty of the Auditor and of the Treasurer, regardless of those provisions, after the receipt of the money from the source mentioned, to dispose of it for the sole purpose of paying the coupons of said bonds; that there can be no valid abrogation of the law imposing that duty upon them, and that their functions in that regard are above and beyond the power of the people and of the government of the State.
The plaintiff manifestly avers the validity of an existing executory contract, in which the State is the only obligor; he charges a violation of it by the State, and he asks an enforcement of it by the State judiciary against the State out of the property of the State within reach.
Practically, he demands that the State judiciary decree that he is a creditor of the State; that the property of the State, which is in the State treasury, shall be appropriated to the payment of the claim which he sets up; that the judiciary shall compel that appropriation, although the custodians of that property declare that it has not been appropriated by law to pay that claim, but has been, by formal and supreme command, ordered to be applied to other purposes of vital importance.
It may well be, as averred by the plaintiff, that the contract which he alleges is valid; that it is protected from impairment by the Constitution of the United States, and is binding upon the State of Louisiana; [503]*503that an attempt has been made by the State to violate that contract; nay, that the State has violated it. It may well be, that the funds which, he says, were collected to pay his claim and are in the State treasury, should be applied, under the terms of his contract, to the payment of his coupons; but, whatever his rights may be, how can he call upon this Court to enforce them, unless contradictorily with the obligor, the State, who is the only party interested, whose rights are involved, whose property is at stake.
The humblest citizen could not be deprived of his property unless by due course of law, after compliance with the law of the land, which hears before it condemns, which proceeds upon inquiry, which renders judgment only after trial, because every citizen holds his life, his liberty, his property and immunities, under the protection of the general rules which govern society. Webster, Dartmouth College ease.
Maura Chabta declares:
“ Nidlus liber homo capietur vel imprisonatur, aid disaisietur, aut relegatur, aut exulatur, aut aligno modo destruotur, nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terree.”
It is a principle laid down by Lord Bacon, that “ when the king’s right is questioned, he must be a party, for this, res ipsa loguitur, vel poiius claimat. The king shall not be surprised, nor stricken upon his back, nor made accessorium quidem to the suit of another.”
It is also laid down: “ The rule ever holds between the king and the subject, that the king’s right shall not be tried, except he be a party.
“ And the judges make a wonder of it, when they are pressed and asked, what would you have us do by the king’s right, without making him a party.”
Collect. Jurídica 1, p. 174.
How, then, could we proceed to judgment in this ease, enforcing plaintiff’s demand, when the State of Louisiana is not a party to this important suit.
We do not see, that the process of the court was asked against the State, nor do we discover that the State has entered any appearance, nor that any one has appeared in her behalf.
The money which is in the State treasury, from whatever source it is derived, is money which was due, which was paid, which belongs to and which is the property of, the State. It is money which cannot be drawn from that treasury, except in pursuance of specific appropriation made by law.
Const, of 1879, article 47, 30 An. 1312.
This suit has clearly for its object the appropriation in favor of a [504]*504private individual, who claims to be a creditor of the State, of money belonging to the State, which is in the State treasury, and which the State has ordered, by constitutional provision, shall not be applied to him, but shall be used to defray the general expenses of the government.
It is an undeniable proposition, that whenever the property of the State is judicially claimed, action is virtually against the State, which cannot be done unless with her formal consent.
The Supreme Court of the United States has said: “ It is a familiar doctrine that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy.
“ There is no distinction between suits against the government directly and suits against its property.” The Syren, 7 Wall. 152.
The principle is of such antiquity that the memory of man runneth not to the contrary.
Under the feudal system, the maxim was: "Boy nest lié par ascun statute, sil ne se soit expressement nosmé.” Jenk. Cent. 307. “ The nature of things opposes the opinion, that the judicial tribunals should be competent to determine that the government is a debtor.”
3 Proudhon Dom. propriétá. No. 826, pp. 67-70; Chassat (des statuts) p. 249; Accolos. Man. de droit civ. I, VII; L. B. 32, 33.
" It is in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and practice of mankind; and the exemption, as one of the attributes of sovereignty, is enjoyed by the government of every State of the Union.”
Hamilton, Federalist, No. 81.
The Court of King’s Bench, in a late case, said: “ Over the sovereign, we can have no power. In like manner, when parties are acting for the sovereign, whose servants they are, these are not amenable to our prerogative jurisdiction. When the money is paid, it is paid to the servants of the crown.” L, B. 33.
The United States have always enjoyed the immunity. 9 U. S. R. 433, 486; 9 L. R. Ch. D. 351.
It is useless further to extract from authorities. It suffices to refer to the line of decisions to show how firmly settled is the principle; U. S. vs. Clark, 8 Pet. 444; U. S. vs. Ringold, 8 Pet. 150; The Syren, 7 Wall. 152; The Davis, 10 Wall. 15; Reside vs. Walker, 11 How. 272; Life Boats, 11 Allen (Mass.) 157; Bank of Washington vs. Ark. 20 How. 530; 16 Wall. 203, 317; 43 Ga. 365; 54 Ala. 67; 77 N. C. 142; 8 S. C. 207; 59 Tenn. 395; 57 Ala. 67; 43 N. Y. 399; 3 S. C. 124; 2 Wh. 233; 14 An. 636; 9 Wh. 738; 18 How. 331; 1 Bl. 436; 16 How. 432, 369; 6 Cal. 256; 3 Rich. S. C. 372; 18 How. 380; 1 Tex. 764; 2 Tex. 31; 24 Tex. 317; Federalist 81, p. 405; VI Webster’s Works, 537.
[505]*505Oases have sometimes occurred in which States were summoned to appear; but, when formally made a party to a judicial proceeding, without their consent, the States have declined to do more than protest against the jurisdiction and to instruct their counsel not to argue the case. Before such defense, the courts have to abstain. 17 How. 417, 518, 520.
When the judiciary department of the government was instituted to expound the law and to distribute justice among individuals, the State was not subjected to its authority. She cannot be assimilated to an individual citizen. The mission of the State is to take care of the universal or the general interest. She cannot be brought to the bar of justice and sentenced like an individual, still less forced to perform what might be considered to be an obligation. Olear cases of an administrative character may sometimes be submitted to the tribunals. Officers or agents may be arraigned for breach of actual duty, or for malfeasance in office, but only so long as the will of the State'has not been expressed to the contrary. However numerous the exceptional cases may be, the rule unquestionably is that the State cannot be called without her formal consent before civil tribunals as individuals are, and that the judiciary cannot take cognizance of suits the object of which is to declare the State to be a debtor and to force the State to pay her debts, and that State officers cannot be compelled to act against the real will of the State. There is no instance of a suit commenced on a contract, for the performance of duty or payment of a debt, in which judgment was ever rendered against a State to coerce either.
It is well established by law and jurisprudence that even in proceedings in rem, in which title to the thing vests in a known or unknown owner, an actual or constructive notice to such owner is essentially necessary before condemnation, sale and distribution of proceeds. The rule applies even to mortgages. No adjudication can take place in the absence of the essential parties, whose rights are to be tested. 14 Wall. 94, 29; 16 How. 1; 3 Otto, 150; 1 Pet. 299; 1 Pet. 110; 8 Pet. 5; 3 Story, 335; 6 Wall. 280; 9 Wall. 364; 17 Wall. 78; 19 Wall. 563; 9 Cranch, 19; 2 Woods, 22; 3 L. 523; 5 L. 105, 122, 329; 6 L. 53, 119, 459; 17 L. 517; 3 R. 26, 140; 4 R. 140; 5 R. 500, 224; 6 R. 299, 351; 7 R. 181; 8 R. 171; O. R. 519, 387; 13 An. 201; 23 An. 617; 26 An. 608; 30 An. 177, 328, 576, 1119; 31 An. 305.
The answer of the plaintiff to the application of those principles is, that this Court has not been called upon to determine whether the State is a debtor or not; that the only requirement upon the Court is to compel the State Auditor and the State Treasurer to perform their duties in the premises; that it is not necessary to make the State a party eo nomine; that she is a willing party to the proceeding in the persons of [506]*506the Auditor and Treasurer, who are the legal custodians of her treasury, and who are bound in duty under a contract with the State to pay him; that the law in force at the time the bonds were issued, coupons whereof plaintiff holds, could not be and was not abrogated; that the Court has the power to adjudicate upon the claim contradictorily with those authorized representatives of the State, and that the judgment will be conclusive and irrevocable. Plaintiff further insists, as a last ground of relief, that this is a proceeding at the instance of the State herself, for the enforcement by her recreant officers of her acknowledged obligations under the contract which he has propounded and upon which he relies.
We do not understand this to be the signification of these proceedings. We consider that the petition asserts as a substantive and existing fact, which is the ground of the proceeding, that there is not concordance between the State in her sovereign authority and the active government of the State; that the executive agents of the State refuse to execute the will of the State, and are not in accord with their duty. The requirement upon the Court is to determine that the State is a debtor by the issue of bonds and coupons, some of which are produced and submitted to examination; that those bonds and coupons, or the latter, are to be paid out of the monies in the State treasury, that those officers are charged with the custody and control of that treasury and are bound to perform that duty, although the will of the State has been indisputably expressed to the contrary in an ordinance of the State Constitution.
The reply is, that from whatever standpoint it may be viewed, this is a proceeding against the State, either directly or indirectly; that its property is levelled against, and that this Court is called upon to order the defendants to take it from the State treasury against the will of the State, and to give it to the plaintiff; in other words, to compel the defendants to act beyond their powers.
It is established by authority beyond question, that as a State cannot be sued directly without her consent, she cannot be brought into court indirectly by proceedings against a State agent, a nominal defendant, by a private 'individual claiming to be her creditor, in an action really involving an interest of the State, a question of title to property; and that the courts will not permit such a claim to be enforced circuitously by mandamus against a treasurer. Printup vs. Cherokee R. R. Co., 43 Ga. 365; Horner vs. DeYoung, 1 Tex. 764; 51 Me. 461; 2 Tex. 497; 22 Tex. 31; 24 Tex. 317.
The dilemma is this : If the suit is against the defendants in their official capacity, and the claim is made upon them in their official capacity, the State may be considered a party to the record. If the suit is against the officers as individuals merely, and the offices they hold are [507]*507given solely to describe their persons, they have no interest, and no decree should be rendered against them. Madrago vs. Georgia, 1 Pet. 110; McCauley vs. Kellogg, 2 Woods C. C. 22.
If the questions involved can be tried and decided contradictorily with the Auditor and Treasurer, then the State can be coerced and sued. It is, in fact, to permit the petitioner by the writs of mandamus and injunction, to seize the money in the treasury of the State, and to apply the same to the satisfaction of his claim as a creditor of the State, without hearing the State and against her expressed will. The State was not made a party, the State cannot be made a party, the State has not made herself a party; the Court is without power to make her a party against her will; and in her absence it cannot adjudicate upon the claims set up adversely to her in defiance of what she has thought proper to command in the local, fundamental'and paramount law.
The defendants are State functionaries, clothed with such powers only as the State chooses to confer upon them. Like all other principals, the State has a perfect right to recall the powers which she may have delegated to her mandataries, to enlarge or restrict their functions, to direct them in the management of her interests, in the disposition of her moneys, revenues, rights and property. R. O. C. 3027.
We are aware of no principle which excepts the relations .of States to their constituted official agents from the general rule of revocability, which applies to all other mandates.
Acting in her sovereign capacity through a Constitution framed by representatives direct from the people for the purpose, and ratified by the latter, the State has revoked and withdrawn from the Auditor and Treasurer the power of attorney which they formerly held from her, and under which they were previously authorized and directed to perform as her agents the functions sought to be enforced. The effect of this revocation has been a withdrawal and termination of these powers from those agents as to this subject and an assumption of the same by the State.
If the State herself were subject to suit, she might be informed by her courts of her obligation to perform those duties;.since she acts only through agents, these, when authorized to represent her, might be compelled to execute the judgment of the court, which then would be against the State; but how can it be held that an agent whose powers have been revoked by his principal can any longer represent that principal, particularly when he is sought to be made to perform acts against which his principal has in unmistakable language formally set his will.
In a case bearing great analogy to the present one, this Court once said:
“ As to the question whether the State by her legislation has im[508]*508paired the obligations o£ her contract with the relator, we are of opinion that the matter cannot be decided in this- controversy, because the State is not a party to the suit, and the Auditor has no interest in the solution of the question. The same authority which prescribed the duty could, and did revoke it.” State ex rel. McCauley vs. Clinton, Auditor, 27 An. 430; Succession of D’Aquin, 9 An. 400; Ex parte State, 52 Ala. 231; People vs. Supervisors, 64 N. Y. 600; State vs. Bishop, 42 Mo. 504.
We have been shown no law or authority which authorizes -the respondents to stand in judgment and to represent the State when claims are urged to money belonging to her, in the State Treasury, which the State has formally directed, by an article in her Constitution, to be applied to objects other than those sought to be attained by the complainant, and we are at a loss to know what law makes it now their duty to apply the funds aimed at to the satisfaction of the demand of plaintiff.
We have been referred to authorities, to the effect that where an officer pleads the authority of an unconstitutional law as a justification for the non-performance or violation of his duty, this will not prevent the issue of the writ. 9 Wh. 859; 16 Wall. 220. This may be so where the authority invoked is a statute unconstitutional under the State Constitution, but it is differently where the authority is an article in the Constitution itself.
No officer of the State can be compelled by mandamus to do for, or on behalf of, the State anything against the will of the State that he should not do so.
The theory on which the writ issues in the name of the State is, that the officer refusing to execute the will of the State, the power of the State is resorted to in order to compel him to execute that will.
The provision of the Constitution of 1879, attacked by the petitioner, may be violative of the Constitution of the United States. It may be that, if the State were suable, she could furnish no defense against the claims of creditors, the obligations of whose contracts she may have impaired; that, if invoked between such creditors and private or corporate persons, the constitutional provision involved would be brushed away, as being of no effect; but however that may be, it cannot be disputed that it expresses the will of the State, the direct voice of the people, in whom the State sovereignty resides, and by whom it can be announced and exercised.
As an expression of the will of the State, it stands on an entirely different footing from an unconstitutional statute of a State Legislature, which is not the will of the State herself, but only that of the agents of the State, whose utterances have effect only while they act within the powers confided to them. The State has not conferred on her legislative [509]*509agents the power of violating her constitutional provisions. Statutes thus passed being mere enactments, lifeless forms, are not expressions of the will of the State in any sense.
When, as in the Virginia case recently decided by the Supreme Court of the United States (Hartmann vs. Greenhow, Treasurer City of Richmond, No. 154), an officer is sought to be compelled to execute the will of the State, that will is ascertained without reference to such unconstitutional statute, which is not an expression of the State, but is an act of her agents, entirely ultra vires, and in no manner representative of the State.
So, when a question affecting the validity even of a provision of the State Constitution itself, on the ground of conflict with the Federal Constitution, arises in a litigation between parties amenable to judicial process, and whose rights are subject to judicial determination, courts may, and must determine such question, and deny effect to the provision, if it be found to be violative of the paramount law. But, though a State impair, nay, repudiate the obligation of her own contracts, and though if she were liable to suit, courts might annul her acts in that direction, yet, as she is not amenable to suit, it does not lie within the sphere of judicial power to compel her to perform her obligations. When the State herself, acting primarily, expresses her will and makes it mandatory to her own executive officers in their action, in matters affecting exclusively her own business, it would be absurd to suppose that she leaves to anybody the right to sue in her name, to compel such officers to disobey her will.
None of the cases cited sustain the contention of the relator, that the contracts of a State can be enforced by judicial proceedings against her, through process served on officers who have no interest, and are, therefore, nominal parties.
We have attentively read and considered not only the act relied upon by the plaintiff, but also those defining the duties of the State Auditor and of the State Treasurer, and we do not And in them any delegation of authority to them by the State to represent her in a case of this description.
Had such power been conferred, it would still remain an important question to be solved, whether it could be considered as irrevocably conceded, or as conferred to last only during the State’s good pleasure. In this regard, in connection with what we have previously said, we add that it has been decided that statutes permitting the State to be sued, are mere matters of grace, conferring not rights but privileges, which can be withdrawn by the State at pleasure. Ex parte State, 52 Ala. 231; State vs. Clinton, 27 An. 430.
It has been besides held, that where a State becomes voluntarily a [510]*510party to an action in her own courts, she may be informed and advised by the court as to her rights and obligations; but that with the exposition of the same, the powers of the court terminate, and that the judgment so rendered cannot be enforced against her by the process of the court. Dabney vs. Bank of the State, 3 S. C. 124; Garr vs. Bright, 1 Barb. N. Y. ch. 157; Maning vs. State, 14 How. (N. Y.) pr. 517.
• A reference to the statutes of the State shows that the State can be represented before courts of justice in civil eases by her Attorney General alone, and eventheD, in proper cases only. R. S. 131; 9 An. 400; 5 N. S. 527; 25 An. 434; 29 An. 774.
The petition in this case is not presented by the State in her own name and for her benefit, and is not signed by the Attorney General. Had this been done, the authority, for such a course, might have been disputed by the defendants, who could have successfully questioned the institution and prosecution of such a suit. Ex parte Drum, 8 S. C. 207.
“ The power of appearing for another in judicial proceedings is a very grave power, and one which the law scrutinizes in the cases of individuals, and the importance of such a power is obviously not to be less appreciated in the case of the State. The consequence of a power to appear for another in a court of justice is the irrevocably binding force of the thing adjudged, upon the party for whom the appearance is made; and, where the interests of the State, which are the interests of all its citizens, are involved, a court of justice should not pass upon those interests unless the State is properly before it through the officers recognized as its representatives by the constitution or law.”
Succession of D’Aquin, 9 An. 400; 11 Wall. 199.
It cannot, with any shadow of plausibility, be claimed that the plaintiff and his counsel have the right to represent the State, and to maxe in her name judicial admissions, intended to be conclusive upon h'er, of the character of those embraced in the petition. No such power was ever conferred. If it were only required that averments be made, in her name, in courts of justice, by any one claiming to be her creditor, in order to justify a mandamus against her disbursing officers, her treasury would never retain a copper of the revenues which the law has created for the existence and support of the government. 22 An. 298, 379.
It is a matter which is not free from doubt, whether a party who applies for the process of mandamus, can use the name of the State even to place himself in court. The only proper parties to such a proceeding are the petitioner or petitioners claiming to be interested in the performance of the alleged duty, and the party upon whom it is charged that the duty devolves by law. 7 S. C. 275; 3 Houst. Del. 27; 1 Otto, 343; [511]*51151 Miss. 406; C. P. 840; 11 An. 141; 29 An. 793; 30 An. 1312. It has not unfrequently occurred, however, that the applications have been made in the name of the State on the relation of the interested party, and such is the general practice. The law does not require or authorize the petition to be made in the name of the State. It is the order only, when granted, that so issues. C. P. 840, 829. Whatever the practice or the right, if any, may be, it cannot be permitted to be extended further than to allow the use of the name of the State for a nominal purpose only, in cases where the will of the State is presumed and invoked.
In no instance can it be tolerated for the purpose of making the State a real party plaintiff in the proceeding. The privilege can surely not be enjoyed in a ease against State officers, whose powers have been recalled, where the rights and pretensions set up by private individuals are disputed and controverted, and when the property of a State, money of the State in her treasury, is at stake, and when the State is not actually or constructively made a party, and is not therefore properly represented, and has expressed an adverse will.
Finally, by not being allowed the summary relief which the plaintiff claims at our hands, it does not appear to us that he has any just cause of complaint.
“ The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretense to a compulsive force. They convey no right of action independent of the sovereign.” Hamilton, Fed. 81.
“ The true definition of public debt is a property subsisting in the faith of the government. Its essence is promise. Its definite value depends upon the reliance that the promise will be definitely fulfilled.” Hamilton, v. 3, Pub. Credit, p. 517.
In the case of the Bank of Washington vs. Arkansas, 20 How. 530, Chief Justice Taney said:
“ Those who deal in the bonds and obligations of .a sovereign are aware that they must rely altogether on the sense of justice and good faith of the State, and that the judiciary of the State cannot enforce the contracts without the consent of the State, and the courts of the United States are expressly prohibited from exercising such jurisdiction.”
The plaintiff and all others similarly situated, knew of those superior immunities, and must be presumed to have been aware of the high prerogative of a State to recall at pleasure the powers delegated by her to her executive officers, and to resume the exercise of the same.
We do not understand, if the State is under obligations to the plaintiff and to others asserting like rights, that by enacting the debt ordinance, so loudly denounced, she has repudiated a debt said to be legally and morally binding upon her. She virtually admits, for the time being, [512]*512her inability under the pressure of some imperious necessity, to satisfy the plaintiff’s claim, and postpones or remits payment of the same to better and more prosperous times. 43 N. Y. 399; 20 How. 527, 532; 17 Ark. 518; 52 Ala. 231; 3 S. C. 124; 59 Tenn. 395. But, in a case like this, where is the judicial power which can ascertain and proclaim a liability, when the State herself has not been and cannot be made a party; and even then, where is the power to enforce the execution of this obligation by the State, when she has solemnly proclaimed her "inability, or even her unwillingness, for reasons of her own, of the sufficiency of which she is the sole judge ?
We do not consider that the Auditor and Treasurer have a right to assert and vindicate the title of the State to the ownership of the money in the treasury, out of which the petitioner seeks to be paid, for that would be admitting in them the right of representing the State, a right which they have not. 43 Geo. 365; 9 An. 400; 27 An. 430.
It is enough for the respondents to aver and show that the money in question is the property of the State, and was not appropriated by the Constitution or by law to the payment of the plaintiff’s claim; that the will of the State is adverse to his demand, and that the petitioner does' not show that it is actually their clear duty to apply it to his demand, in order to justify the court in declining to pass upon the questions raised by the plaintiff, so as to allow his demand. 64 N. Y. 600; 66 N. C. 386; 50 Mo. 34; 24 Tex. 317; 17 How. 284; 6 How. 92; 12 Pet. 524; 14 Pet. 417; 11 How. 270; High on Ex. Leg. Rem. 33, 36, 42, 80, 107, 110.
After a full examination of the laws conferring jurisdiction upon the Civil District Court, by which this case was originally tried; we are constrained to decline the assumption of the supreme and sovereign power which the plaintiff invokes.
No Constitution or law of this State has ever clothed the District Court or this Court with authority to entertain the claim of any individual to support a suit against the State, and to award judgment for the payment of the same, or to force her to make indemnity for breach of her obligations or duties, in her dealings, without her consent formally expressed,, which is found totally lacking in the present case, in which her adverse will manifestly appears.
The general sense and common usage of states and nations has been, and still is, to withhold from the judiciary department a cognizance of all such demands as are presented without such consent. This is not a suit or process against a municipal corporation through its officers, whose contracts stand on the same footing with those of private individuals, and are equally protected by the Constitution of the United States from impairment by any act of the State. Such corporations are liable to suit at the demand of any creditor contradictorily with them; [513]*513all questions of law, statutory or fundamental, affecting rights and obligations, arising under contracts, can be litigated and subjected to the determination of courts. The precedents applicable to actions against such corporations have no application to the present proceeding, which aims at the enforcement of obligations of the State herself, against whom no judicial coercion can in any form be exercised.
We wish it distinctly understood, that we do not, in any-manner, pass upon the rights of the petitioner under the contracts set up by him; that we do not decide whether such contracts do or not exist, or whether or not the obligations thereof have been impaired by any action of the State.
We simply decide that under the laws, jurisprudence and system of practice prevailing in this State, and regulating the powers of Louisiana courts, the remedies invoked by the plaintiff in these cases, are such as no courts of this State possess, or ever possessed, the power to grant in a proceeding of the character of that presented.
The District Judges who tried and determined these cases have exceeded the bounds of their jurisdiction in passing in any manner upon the merits of the cause.
The judgment perpetuating the injunction is erroneous. The judgment refusing the mandamus is correct.
It is, therefore, ordered, adjudged and decreed that the judgment rendered in case No. 8163, perpetuating the injunction asked, be reversed, and that the petition for such injunction be refused.
It is further ordered, adjudged and decreed that the decree rendered in case No. 8122, declining the writ of mandamus, be affirmed, the plaintiff, in the two cases, to pay the costs in both the lower and appellate courts.