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although the state cannot be sued, yet persons remain responsible, and may be made subject to every proper process. It has heretofore been deemed a sound maxim in ethics, that whatever could not be lawfully done directly, could not be justIf this maxim ly effected by indirect means. be regarded, as the state never could be directly proceeded against in the circuit court, without a violation of the constitution; every indirect mode of proceeding ought to be considered inadmissible; but in fact, and substantially, this is not a proceeding against individuals.

A court of chancery proceeds against the person, and against the subject: in technical language, in personam and in rem. The proceeding in this case, is not against Ralph Osborn, and Samuel Sullivan, for any matter in which they have an individual or personal concern. It is only in the performance of official duties, that the process of the court interferes to control them; it was not for himself, or upon his individual account, that Ralph Osborn, issued his warrant, to collect a tax from the bank of the United States. It was for the state and in his character as Auditor, that he acted; it is not in the transaction of individual business, or upon his own contracts, that Samuel Sullivan is forbid to dispose of, or part with, particular funds. He is inhibited from paying away money received by him as treasurer, held by him as such and for the disbursement of which he is officially responsible to the state.

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A state in the abstract is an intangible entity like a corporation; in substance, it is a community of individuals; it can only act by individual agents, and its power of action is completely destroyed, when these agents are restrained from acting. It is solemn trifling to admit that a state cannot be sued in the circuit court, and at the same time insist, that every agent that the state employs may be controlled and restrained from performing his official functions, by the same circuit court.

The auditor of state is a ministerial agent in the executive department of the government; it is his duty to superintend the collection of the revenue; he acts direct for the whole people upon each; in every one of his official acts, he exercises a portion of the sovereign power; and when he is restrained from acting officially, it is the sovereign power of the state that is restrained.

Injunctions to stay proceedings in the courts of law, are founded upon a different principle. They act upon the party and not upon the court, and call in question the conduct of the party, not the justice, or integrity of the judges. The people, too frequently called the government, never intend that one individual shall use their power to do injustice to another. Courts of chancery are instituted, not to control the courts of law, but to con trol individuals, who may have obtained unconscionable advantages in the law courts. The proceedings of the chancery courts, is the act of the people; but it does not operate upon the people

themselves, in and through the courts of law. It only withdraws the subject from the judgment of the people in their law court, to their judgment in their court of chancery, upon the principle that adequate justice cannot be administered else

where.

This injunction operates through the Auditor, upon the whole people of the state. He is their agent his acts are their acts; he proceeds under their direction, and for their sole benefit. They are responsible for his errors, and are bound to protect him from unjust responsibility.

If the injunction was intended, and did in fact, operate upon Ralph Osborn alone, his resignation or removal from office, would render it unavailing. His successor in office, would be at liberty to act, notwithstanding the injunction. But that this was not the intention, and is understood not to be the effect of this injunction, is placed beyond all doubt. The bill prayed not only, that Ralph Osborn, Auditor of state, but that all others whom it concerned, should be enjoined-and so the order of injunction was made. The court have judicially de clared, that this order did not extend to Ralph Osborn and his agent alone; but to all who might act upon the subject. By resigning his office, after notice of an application for the injunction, Ralph Osborn would have ceased to have any concern in the subject of it. Yet we are distinctly given to understand, that his successor in office was

enjoined, as well as every other agent or officer whom the law might appoint to perform any duty connected with the collection prohibited. This fact, alone, would seem decisive, that the proceeding is not personal against Ralph Osborn, but is direct against the Auditor of state.

It is charged in the supplementary bill, that the money collected was delivered to Hiram Mirrick Currey, to keep upon deposit, and by him delivered to Samuel Sullivan, to keep in like manner; it is also charged, that at the time of receiving the money, Currey was treasurer of the state of Ohio, and at the time of delivering it to Sullivan, he was the successor of Currey; and the bill prays that Currey, as late treasurer, and Sullivan, as present treasurer, and also in their individual capacities, may be made defendants; the bill also prays, that Sullivan may be enjoined from disposing of the specific monies, received by him upon account of the tax. This injunction too, is granted, upon the suggestions contained in the bill without any evidence that the money was paid to Sullivan, as alleged.

This proceeding is not merely personal against the treasurer, it is direct against the subject; and that subject is money in the state treasury, received by the treasurer as revenue of the state; receipted for as such, and as such carried into his official accounts. But this is not a proceeding against the state; because the complaints allege, that the nature and character of the whole trans.

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action, forbids the supposition that the money was received by the defendants, in the capacity of Treasurer. Thus the court are called to determine the whole transaction, to be illegal'; and then to invest themselves with jurisdiction to reach the specific funds, by shutting their eyes to the real facts of the case, and supposing a state of things that never did exist.

When a state was liable to be sued before the supreme court, the process issued against the state, and the court directed a service to be made upon the governor, for the time being. If the proceedings in the present case are correct, it is now sufficient to issue process against the

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person who may happen to be treasurer, and name him both as treasurer and as an individual, and upon such pro cess, at the mere suggestion of a complaint, prohibit him from using, for the benefit of the state, any moneys paid to him officially, which it may be alleged were collected illegally. In due season a decree may be passed, for the specific restitution of the money thus claimed, and this decree will bind the treasurer, that may be in office when it is pronounced, and subject him to the responsibili ties of a defendant. If he refuse to pay the money, the court may attach him for a contempt; if he does pay it without a legislative appropriation, he is liable upon his bond, and subject to impeachSuch might have been the consequence of a judgment against a state, in the supreme court; and it was no doubt an apprehension of such result,

ment.

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