NORTH CAROLINA
v.
TEMPLE.
No. 392.
Supreme Court of United States.
Argued January 22, 23, 1890. Decided March 3, 1890. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA.*27 Mr. R.H. Battle and Mr. John W. Graham for appellants. Mr. T.F. Davidson, Attorney General of the State of North Carolina, and Mr. Thomas Ruffin were with them on the brief.
Mr. S.F. Phillips for appellee.
Mr. Edward L. Andrews also argued for appellee.
*30 MR. JUSTICE BRADLEY, after stating the case as above, delivered the opinion of the court.
We think it perfectly clear that the suit against the auditor in this case was virtually a suit against the State of North Carolina. In this regard it comes within the principle of the cases of Louisiana v. Jumel, 107 U.S. 711; Cunningham v. Macon & Brunswick Railroad Co., 109 U.S. 446; Hagood v. Southern, 117 U.S. 52; and In re Ayers, 123 U.S. 443. We do not think it necessary to consider that question anew.
The other point, the suability of the State, is settled by the decision just rendered in Hans v. The State of Louisiana, ante, 1.
To the question on which the judges of the Circuit Court were opposed in opinion, our answer is in the negative, namely, that the suit could not be maintained in the Circuit Court against the State of North Carolina by the plaintiff, a citizen thereof.
The decree of the Circuit Court is
Reversed and the cause remanded with instructions to dismiss the bill of complaint.
MR. JUSTICE HARLAN dissenting.
I dissent from so much of the judgment in this case as holds that this suit cannot be maintained against the auditor of *31 the State of North Carolina. The legislation of which complaint is here made impaired the obligation of the State's contract, and was therefore unconstitutional and void. It did not, in law, affect the existence or operation of the previous statutes out of which the contract in question arose. So that the court was at liberty to compel the officer of the State to perform the duties which the statutes, constituting the contract, imposed upon him. A suit against him for such a purpose is not, in my judgment, one against the State. It is a suit to compel the performance of ministerial duties, from the performance of which the state's officer was not, and could not be, relieved by unconstitutional and void legislative enactments.