Whether this doctrine applies to state of ficers or to state funds in the state treasury has been considered but twice, so far as we have been able to ascertain. In the case of Jones v. Reed, 3 Wash. 63, 27 Pac. 1069, the supreme court of Washington held that the doctrine does not apply. Four of the justices concurred, and one dissented. In the case of Butler v. Ellerbe, 44 S. C. 283, 22 S. E. 437, the supreme court of South Carolina held that the doctrine does apply. Two of the justices concurred, and one dissented. Such a suit was entertained by the people or the state at large, the court's action can only be invoked by such executive officers of state as are by law intrusted with the discharge of such duties." In Sears v. James, 47 Or. 50, 82 Pac. 14, a suit by a taxpayer to enjoin the superintendent of the state penitentiary from making certain expenditures, the court said: "For the purposes of this appeal the averments of the complaint must be taken as true, and the single question is whether plaintiff can maintain the suit. That a taxpayer may invoke the interposition of a court of equity to prevent the illegal disposition of public funds is no longer open to question in this state." But the injune tion was denied on the ground that the defendant had no authority under the law to pay any bills, or handle or disburse any state funds, as his accounts must be presented to and audited by the secretary of state, who was not a party to the action, and the court must assume that he would discharge his duty. In McKinney v. Watson, Or. - 145 Pac. 266, an action by a resident, citizen, and taxpayer to enjoin the secretary of state from auditing, and the state treasurer from paying, claims for salaries incurred by another defendant who was corporation commissioner, the act under which he was appointed being claimed to be unconstitutional, the court said: "It is well established by precedents in this state that a taxpayer whose enforced contribution to the public funds will be increased has a right to resist by litigation in his own name the enforcement of an unconstitutional statute, or the misapplication of public money." The court denied the injunction on the ground that the plaintiff did not show that his burden of taxation would be increased by the administration of the statute under consideration, as it did not appear that he contributed to the fees out of which the expenditures were to be made, or that his taxes would be otherwise increased. -Pennsylvania. In Mott v. Pennsylvania R. Co. 30 Pa. 9, 72 Am. Dec. 664, it was held that canal commissioners and taxpayers and loan creditors of the state had a right to enjoin the governor and other state officials from proceeding under a statute which enabled a certain corporation to make a contract by latter court in Evans v. Tillman, 38 S. C. 238, 17 S. E. 49; Robertson v. Tillman, 39 S. C. 298, 17 S. E. 678, but without the point here in question having been raised or considered. Several courts have been unwilling to adopt this doctrine even in the case of a municipal corporation. As applied to a municipal corporation, it is founded in part upon the corporate relation supposed to exist, or in reality existing, between the inhabitants of the municipality and the municipality. The inhabitants are likened which it would be exempted forever from taxation to the state. -Tennessee. 427, 37 Am. Dec. 563, residents and citizens In Bradley v. Powell County, 2 Humph. of a territory proposed to be included in a new county were allowed an injunction against the commissioners appointed by an act of the legislature to establish such new county, the grounds of the decision being that the new county did not contain the necessary area prescribed by the constituapply for the remedy. The court did not tion, and that any person aggrieved might discuss the question of expense. that resident citizens and taxpayers might In Lynn v. Polk, 8 Lea, 121, it was held enjoin a state board from carrying out the provisions of a refunding act which would increase the taxes, the court holding that the taxpayers properly brought the action, that they were not compelled to wait for the tax before attacking the act, and that the board acting by authority of the state. the suit was not against the state, nor were -Colorado. In Frost v. Thomas, 26 Colo. 222, 77 Am. St. Rep. 259, 56 Pac. 899, the court sustained a proceeding to restrain the defendant, in his capacity as governor of the state, from appointing officers for a recently created county, upon the ground that the act creating that county and providing for the appointment of its officers was unconstitutional. The status of the plaintiffs does not appear, but it seems that they alleged that injuries would result to them and others similarly situated if the act were carried into effect. -Kansas. In Martin v. Ingham, 38 Kan. 641, 17 Pac. 162, the court sustained on principle the right of a resident taxpayer and elector to enjoin the governor from the performance of certain acts in the organization of a new county, but denied the relief on the merits; the governor, however, while not waiving the authority of the court to inquire into the matter, did waive any objec tion as to the capacity of the plaintiff to bring suit. This case was followed in the similar case to the shareholders of a private corporation, | very far already to allow mere private and the municipality is likened to their trustee. See Dill. Mun. Corp. 3d ed. § 914 (731). This foundation for the doctrine, needless to say, does not exist in the case of a suit involving state affairs. By no possibility can the state, in her relations with her citizens, be likened to a private corporation. Between the state and a private corporation there is in that connection no analogy whatever. And, even apart from this, it is going of Martin v. Lacy, 39 Kan. 703, 18 Pac. 951, where the plaintiff alleged, as a qualification to maintain the action, that he was a resident and legal elector; but the gov ernor consented that the action might proceed in the name of the plaintiff, and waived objection to his capacity to prosecute the same. The action not allowed. The action is not allowed in New York, Louisiana, South Dakota, and Washington; the same has been held in a Federal court and in Porto Rico. -New York. In Thompson v. Canal Fund Comrs. 2 Abb. Pr. 248, the plaintiff sued to enjoin the commissioners from borrowing money, claiming that the act was unconstitutional and alleging that he was the owner of a considerable portion of a loan under an earlier statute, and also that he was a taxpayer. The court refused an injunction on ground that officers of the state ought not to be enjoined from carrying out the law of the legislature, even if it was unconstitutional, and stated that the plaintiff had attempted to sue in a double capacity, both in regard to an injury peculiar to himself and as a taxpayer. The court seems to think that these objections to such a course in the nature of his action if he intended of proceeding must lead to a correction to proceed. persons to invoke the aid of the judiciary to interfere with the management of public affairs, even in the case of a municipal corporation. Even that far the courts have gone only with hesitation, and some have refused to go. They ought not, we think, to extend the doctrine further, and apply it to the affairs of the state itself. So far as plaintiff's interest as a mere citizen is concerned, apart from his interest as a taxpayer, nothing is better settled than that such a general interest as that, the acts of another department of government, simply because he is one of many such citizens and taxpayers." In Hutchison v. Skinner, 21 Misc. 729, 49 N. Y. Supp. 360, the court denied an injunction asked for against the superintendent of public instruction of the state, by a taxpayer, in relation to appointment of teachers in a certain locality and as to instructions to a local board of education as to proceeding with schools, etc., holding that the statute permitting taxpayers' actions should apply only to municipalities, and apparently taking the view that it was only the statutes that gave the taxpayer any right to bring an action. The Hutchison Case was followed in Long V. Johnson, 70 Misc. 308, 127 N. Y. Supp. 756, where it was held that an individual taxpayer who has no special rights or grievances aside from the great mass of taxpayers cannot enjoin a state board or commission authorized by statute to select the site and build a prison (but the court did not seem to admit that the commission had done more than show favoritism or lack of economy or errors in judgment). This case was followed in Whitbeck v. Hooker, 73 Misc. 573, 133 N. Y. Supp. 534, denying an injunction sought in a taxpayers' action against the state board of highway commissioners, to restrain them from entering into a contract covering the this case that the injunction ought to have construction of a part of the state highway (but the court did not seem to think in been granted on the merits). -Louisiana. SUTTON V. BUIE denies the right of a citizen and taxpayer to enjoin the payment of In Schieffelin v. Komfort, 212 N. Y. 520, L.R.A. 106 N. E. 675, it was held that a citizen taxpayer could not bring an action against the officials of all the counties in the state, and against the secretary of state, to restrain them from taking steps pre-state funds. liminary to the nomination and election of delegates to a constitutional convention pursuant to an election for the purpose of determining whether such a convention should be held, which election was in accordance with an act of the legislature al leged to be void. The court said: "This court has not refrained, and will not refrain, from declaring a statute unconstitutional when it is asserted in a controversy where the question becomes a judicial one, but we repeat that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review -South Dakota. In State ex rel. Cranmer v. Thorson, 9 S. D. 149. 33 L.R.A. 582, 68 N. W. 202, the court dismissed an action brought on the relation of an elector taxpayer to enjoin the secretary of state from certifying to the officials of the county a certain question as a constitutional amendment, on the ground that the legal steps necessary as a prerequisite therefor had not been carried out. The court gave as its reasons that any additional burden that might relate to the held by him in common with all the citizens of the state, does not afford him a basis for contesting the constitutionality of an act of the legislature. Cooley, Const. Lim. chap. 7, p. 196. Having concluded that the plaintiff is without pecuniary interest, and therefore without standing, to maintain this suit, we do not reach, and therefore do not pass upon, the question of whether this is not a suit against the state, and therefore not maintainable even if plaintiff had a pecuniary interest in the premises. relator as a taxpayer by reason of submitting the question to the people at a general election was too trifling, fanciful, and speculative for serious consideration; and that, having failed to show that he would be injured by the intended action of the defendant, he was not entitled to have the intended action of the defendant enjoined or its regularity investigated in this action; and also that the court had no jurisdiction to enjoin the making of an unconstitutional law, or the making of an unconstitutional amendment to the Constitution. In Davenport v. Elrod, 20 S. D. 567, 107 N. W. 833, the court dismissed a writ of prohibition brought by a resident taxpayer against a state commission, holding that the statute under which they acted was constitutional, etc., but not it seems discussing the right of the plaintiff to bring the ac tion. -Washington. In Jones v. Reed, 3 Wash. 57, 27 Pac. 1067, cited in SUTTON V. BUIE, it was held that the doctrine that a citizen and taxpayer might enjoin the officers of a municipality could not be extended to the state officers, as the state was sovereign. In Birmingham v. Cheetham, 19 Wash. 657, 54 Pac. 37, the court declined to enjoin the state grain inspector and the state treasurer in regard to certifying and paying out inspection fees, on the ground that the plaintiff, a citizen and taxpayer, had not shown that he would be pecuniarily and directly injured by the acts complained of. en It is therefore, ordered adjudged, and decreed that the judgment appealed from be affirmed. O'Niell, J., concurs in the decree. I am of opinion that, upon the case presented, the courts are vested with no authority to interfere in the manner proposed by the plaintiff, with another independent department of the state government in the discharge of its functions, and I therefore concur in the conclusion herein reached. the state and belonging to the common school fund of the state. In Bilger v. State, 63 Wash. 457, 116 Pac. 19, it was held that "courts of equity will not inquire into the action of state officers accused of misappropriating public funds on the complaint of a citizen and taxpayer, as the attorney general of the state is the proper person to institute suits where there has been a wrongful disposition of the public revenue." -Federal cases. This note does not consider the general question of the jurisdiction of the Federal courts to enjoin state officers. In Morgan v. Graham, 1 Woods, 124, Fed. New York who was a taxpayer of Louisiana Cas. No. 9.801, it was held that a citizen of could not restrain the governor of Louisiana and other state officers from executing and issuing certain state bonds which the legislature had by special act authorized and required them to issue,-on the ground that the state Constitution limited the debts of the state to an amount which had already been exceeded; that the bonds were donations to a railroad company, and that the legislature had no power to make such donations. The court stated that it was a general rule that a man could not maintain a private suit for an injury which he sustained in common with every other. In Navarro v. Post, 5 Porto Rico Fed. Rep. 61, the court, while holding that the acts intended were lawful, held also that "no private citizen or taxpayer,--and that is all that these two complainants are, because their allegation that they are members of the house of delegates adds nothing to their right to sue in this court,has any right to sue or enjoin the state (insular) officials, or to in any impede or hamper them, in the exercise of their official functions." manner Unsettled or doubtful jurisdictions. In Tacoma v. Bridges, 25 Wash. 221, 65 Pac. 186. it was held that a city, and a citizen taxpayer therein, could not join the state commissioner of public lands from leasing them to parties who, it was alleged, were about to commit nuisances thereon which would operate injuriously to the health of the complainant individual and city, as the threatened injury was too remote. The court does not notice in its opinion a further allegation of the complaint, that the defendant threatened to file a plat of certain land of the state, dividing the same into blocks, streets, etc., apparently intending to dedicate the streets to the public without any right or authority, In Peeples v. Byrd, 98 Ga. 688, 25 S. E. the land in question being the property of 677, where the plaintiff claimed a special in a number of jurisdictions; in Wisconsin The cases seem inconclusive or doubtful there is a local peculiarity not free from obscurity. -Georgia. interest, the court held he had not such upon which we might have summarily disspecial interest, and that, as a citizen and posed of it. It is the settled law of this taxpayer, he could not enjoin the state re- state, if anything can be settled by repeated porter from carrying out a contract made adjudications, that an executive officer of by the reporter and the governor, because the state is not subject to the control or (1) the state would be a necessary defend- interference of the judiciary in the performant and it could not be sued, and (2) while ance of duties belonging to him as an executhe governor was not a nominal party, the tive officer and that no act done, injunction would suspend a contract which threatened to be done, by him in his official he officially participated in making in his capacity, can be brought under judicial condiscretion, and (3) that, further, the plain-trol or interference by mandamus or in tiff had not shown that the act complained of would increase taxes, or make his taxes any higher. In Smith v. Magourich, 44 Ga. 163, where the court affirmed the right of citizens to enjoin commissioners appointed by the legislature from locating the county seat of a new county at a place alleged not to be not validly selected, the commissioners were probably not considered as more than county officials. -Michigan. While the court did not seem to go into the question of the funds that would be necessary to carry out the provisions of the statutes declared to be invalid, reference may be made in this connection to Giddings v. Blacker, 93 Mich. 1, 16 L.R.A. 402, 52 N. W. 944, where it was held that a citizen and elector had a right to apply for a mandamus against the secretary of state to prevent him from giving notice of the election of senators under one apportionment act, and to compel him to give it instead under an earlier act, on the ground that the later act was unconstitutional. The court held, however, that both acts were invalid, and directed that the secretary must issue his notice under a still earlier act, unless a new apportionment should be made by the legislature before the time expired for giving the notice. It was insisted by the attorney general that the relator had no standing in court because, prior to filing his petition, he made no application to the prosecuting attorney of his county, the attorney general, or other public officer, to apply to the court for a mandamus touching the matter This was overruled by the court on the ground that the attorney general himself appeared to be adverse to the position taken by the relator. here in issue. -Minnesota. In Rippe v. Becker, 56 Minn. 100, 22 L.R.A. 857, 57 N. W. 331, the court sustained the right of a citizen, freeholder, and taxpayer to restrain the board of railway and warehouse commissioners from building a state elevator pursuant to a statute declared to be unconstitutional. But in Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519, where the status of the plaintiff does not appear, the court, in denying on the merits a suit to restrain the state treasurer from paying out of the funds of the state the interest about to become due upon state bonds alleged to be illegal, said: "There was another ground or junction; that this is the rule, even when the act is purely ministerial.” -North Carolina. The question was not litigated in Galloway v. Jenkins, 63 N. C. 147, where an injunction was granted restraining the state treasurer from subscribing for stock of a railroad, and delivering the bonds of the state to the railroad, on the ground that the statute under which he proposed to act was unconstitutional. It was admitted that, for the purposes of the action, the plaintiff, as a taxpayer and property owner, had a right to bring it, all parties wishing to have the constitutional question settled. -Oklahoma. 944, affirmed in 221 U. S. 559, 55 L. ed. 853, In Coyle v. Smith, 28 Okla. 121, 113 Pac. and a citizen and taxpayer of the state, 31 Sup. Ct. Rep. 688, a resident of Guthrie, was denied an injunction to prevent the removal of the capital from Guthrie, where he claimed to have large property interests, to Oklahoma city. The decision was on the ground that the removal was valid, and the court did not discuss the right of the plaintiff to bring the action. -South Carolina. It may be said in limine that, as will be seen below, the court in SUTTON v. BUIE goes too far in stating that in Butler v. held that the doctrine of the right of the Ellerbe, infra, the South Carolina court taxpayer to enjoin the illegal disposition of municipal funds "does apply" to state funds, for the question was waived in the his dissenting opinion, thought the plainButler Case, although the chief justice, in tiff had a right to bring the action. It will be seen that in the early case of Auditor v. Treasurer, infra, the court apparently recognizes the right of the citizen to bring the action, but the later cases do not seem to sustain it, and the Duncan Case, infra, apparently denies the right. In Auditor v. Treasurer, 4 S. C. 311, where an action was sustained brought in the name of the state by the state auditor, relator, against the state treasurer and county treasurers, to enjoin the state treasurer from issuing and putting in circulation illegal scrip, and to enjoin him and the other defendants from receiving such scrip for taxes past due or to become due, and from paying out such scrip, it was claimed "that no right of action subsists in the plaintiff to pray the injunction sought for." The court said inter alia: "There is an other view which may be taken of the objection thus urged.. A public officer having the charge or care of the property or money of the state, as to its proper preservation and disposition, occupies, in regard to it, the relation of a trustee. He must hold it alone in strict devotion to the purposes of the agency which his office confers. The state, as a cestui que trust, may enforce the trust and save the subject of it from conversion to an object not within its scope. A private citizen and taxpayer has such an equity as will authorize him, on behalf of himself and all others who will be prejudiced by the proposed wrongful act of the officer, in respect either to the money or the property, to resort to judicial proceedings for its prevention. Even if the plaintiff, in his official capacity as auditor, could not sustain his complaint against the state treas urer and the county treasurers to the extent of the entire relief which he seeks under it, the court may still entertain his application, looking to his rights as a member of the community in the trust of which the principal defendants are trustees, hold ing the money of the state on conditions and for purposes subject only to the constitutional contract of the legislature. His absolute and personal rights in the premises cannot be lost, because he asks for their protection in an official, in place of an individual, relation." In Evans v. Tillman, 38 S. C. 238, 17 S. E. 49, referred to in SUTTON V. BUIE, an injunction against the governor and state treasurer by a taxpayer was denied on the ground that the officers were not acting beyond their powers as laid down by the statute in question. the case of McCullough v. Brown had been overruled in so far as it held the dispensary law unconstitutional by the subsequent case of State ex rel. George v. Aiken, 42 S. C. 222, 26 L.R.A. 345, 20 S. E. 221, stated also that that case did not affect the question of the right to sue; and in the Butler Case he refers to various authorities which seem, however, to relate simply to a right to proceed against the officers of municipalities or against a municipality. In Butler v. Ellerbe, supra, cited in SUTTON V. BUIE, where the court denied an ap plication by a citizen and taxpayer to restrain state officers from paying supervisors of registration and other officials for services in what was claimed to be an unconstitutional election, it appears that the decision was made waiving the question as to the right of the petitioner to equitable relief, although the dissenting opinion of Chief Justice McIver holds that the plaintiff had a right to bring the action. In Duncan v. State Bd. of Edu. 74 S. C. 560, 54 S. E. 760, affirmed sub nom. Duncan v. Heyward, 78 S. C. 227, 58 S. E. 1095, where the court denied an injunction to prevent the state board of education from carrying out a contract which the court held to be not beyond their power, and the action was brought by a taxpayer and patron of the public school, the court said: "The injury which the petitioners allege they would suffer does not differ in kind from that which would be suffered by the people at large patronizing the public schools, and if there had been any cause of action, the suit should have been instituted by or on behalf of the state. Manson v. South Bound R. Co. 64 S. C. 120, 41 S. E. 834. That aside from that, the personal interest of the petitioners is exceedingly small, it being impossible that it could amount to more than five or six dollars each (The Manson Case, supra, related Robertson v. Tillman, 39 S. C. 298, 17 S. E. 678, also referred to in SUTTON V. BUIE, was an application by a citizen, bond-year." holder, and taxpayer to restrain the issu- to a municipality. ance of state bonds under the contract adjudged valid in Evans v. Tillman, upon the ground that the act purporting to authorize such issue was unconstitutional and void, and the injunction was denied on ground that the act was constitutional. the In McCullough v. Brown, 41 S. C. 220, 23 L.R.A. 410, 19 S. E. 458, the county board of control under the dispensary act were restrained from opening a dispensary, at the suit of taxpayers, residents, and freehold voters. The court stated that, without considering at any length the question of mere procedure, it seemed to it that the remedy by injunction was appropriate, and that the real object of the action was to prevent certain persons from engaging in a business involving the use of public funds derived from taxation, under an act of the legislature claimed to be unconstitutional. The authorities to which the court refers briefly on this question seem to be those relating to municipalities. The opinion was delivered by the chief justice, who, in his dissenting opinion in Butler v. Ellerbe, 44 S. C. 256, 22 S. E. 425, while stating that -West Virginia. the statute attacked was held to be consti In Slack v. Jacob, 8 W. Va. 612, where tutional, it seems to have been held that the governor, at all events until the statute a court of first instance could not enjoin had been found to be unconstitutional. -Wisconsin. In Wisconsin the matter depends to some extent upon the constitutional provision that the supreme court "shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same." In State ex rel. Bolens v. Frear, 148 Wis. 456, L.R.A. 1915B, 569, 134 N. W. 673, 135 N. W. 164, Ann. Cas. 1913A, 1147, the court, while dismissing the complaint, holding the income tax laws which were attacked to be valid, and refusing an injunc tion to restrain state officers from carrying out the statute, considered at great length |