Green v. State

53 Miss. 148 | Miss. | 1876

Chalmers, J.,

on the petition for re-argument, delivered the following opinion of the court: —

The error that underlies and runs through the petition for re-argument consists in the assumption that, because the Constitution and statutes make the State liable to all persons having claims against her, “ to the same extent as individual persons are liable to each other,” therefore the claimant is entitled, in every respect, to the same mode and measure of redress as he would be entitled to against a private person. In consonance with this view, it is urged that whether an auditor’s warrant be regarded as a judgment, or be likened to a bank-check, it must be equally the subject of suit, since both of these evidences of indebtedness can be made the foundation of an action against an individual.

Apart from the highest considerations of public policy, the most cursory reading of the statute shows two marked and important differences between suits against the State and those against individuals. Such suits cannot be brought without being preceded by demand of payment and refusal; and, when they have ripened into judgments, all steps for their satisfaction are prohibited, except a request to the legislature for their payment. Should that body make the appropriation, the bill for that purpose must be approved by the governor, or passed over his veto. It appears, therefore, that the citizen holding a claim against the State, which has been rejected by her ministerial officers, can only obtain payment by the concurrent assent of the judicial, legislative and executive departments of the government. It is evident that the judiciary acts in such a case merely as an appellate revisory board upon the action of the ministerial officer, or, perhaps more properly,' as a court of claims, to determine the justice and legality of the demand.

If the claimant successfully runs the gauntlet of all these departments of State, he presents himself, ,with his judgment and the legislative act of appropriation, before the auditor of public accounts, and receives from that officer a warrant on the treasury. In other words, after years of expense and trouble to himself and the State, he receives just what the plaintiffs hold here, — an auditor’s warrant; upon which, if the appellee’s theory be correct, he can instantly institute another suit, and thus go through, ad infinitum, the same tedious and fruitless process. As courts are organized for beneficial purposes, and suits entertained to further some practical end, the consideration, that a suit upon an auditor’s warrant can result only in obtaining an auditor’s warrant, seems to us an argument against entertaining such suits, which should be as cogent and convincing as it is said by counsel to be novel and surprising. Nor is there any force in the suggestion, by way of analogy, that a court will not decline to entertain a suit against an individual upon the ground that he is insolvent. We refuse to permit a suit upon a warrant, not because the State is insolvent, but because, however solvent it may be, we are powerless to advance the plaintiff any further on the road to a satisfaction of his demand than he already is.

But it is said, that while it may be generally true that such suits cannot be maintained, yet that, where after the issuance of the warrant it has been repudiated by the legislature, a suit should be permitted, in order to test its legality, or the validity of the act of repudiation. We respond by asking, Oui bono ? If the act is unconstitutional, it is as if not written, and the proper remedy is by mandamus on the treasurer. But if, as in the case at bar, there has been no formal act of repudiation, but simply a legislative command to the treasurer not to pay certain warrants until further action, how can this court aid the holders of such instruments ? They already possess the highest evidence of debt known to the State. All that they lack is the legislative assent to its payment by a repeal of the prohibitory statute.

For this purpose they must resort to that body, which alone has power to administer relief.

-Tie-argument denied.