Mr. Justice MILLER, dissenting.
In the case of Gelpcke v. Dubuque, reported in 1st Wallace, I felt called upon to point out the evil consequences likely to flow from the doctrine there asserted for the first time, that the construction given by the State courts to their own constitutions and statutes, could be disregarded and overruled by the Federal courts sitting in the same States and deciding the same controversies.
These consequences are now apparent in the judgments just rendered, whereby the State officers are commanded to disobey an injunction of a State court, rendered in regular judicial proceedings, to which they were proper parties, in a matter of which that court had undoubted jurisdiction, concerning the levy of a tax under State laws.
It may not be inappropriate to review the steps by which this court has gradually arrived at the conclusion that it can do this, for the purpose of enforcing the payment of bonds, issued without authority of law, out of the property of those who never consented to their issue or agreed to pay them.
In almost all the cases where municipal corporations have any authority at all to issue such bonds, the statutes which give the authority require that there shall first be a vote of the majority of the people of the municipality, approving the purpose for which they are issued, and authorizing their issue. Of course the law fixes the manner of taking this vote; and I believe that, until this court decided to the contrary, no court had ever held that such bonds were valid without a substantial compliance with the statutes on that subject.
But in the case of the Commissioners of Knox County v. Aspinwall, 21 Howard, it was held that the commissioners, whose duty it was to issue these bonds in the event that a majority voted them, were to be the exclusive and final judges of their own authority. It was said that because it became their duty to determine whether the bonds had been legally voted or not, before they issued them, therefore the fact that they had issued them was conclusive of the vote and of their own authority, and precluded all inquiry into that question.
These commissioners were merely the agents of the people of the municipality. Their authority depended on no private instructions, but on the public statutes of the State, which every person who dealt with them could examine. The proceedings for a vote were all of record, as well as the return of the officers taking the vote.
Yet, in the face of all this, when these agents transcend their authority, and attempt to bind upon the people of the county a load of debt which may absorb all their property, and heavily burden them for years, we are told that the agents were the final and exclusive judges of their own authority. When the highest court in the land renders a judgment or a decree, any other court before which the matter may come has a right to inquire into its authority to pass such judgment; but these mere agents of the people, whose powers are limited by law, may, by merely asserting their authority, pass a decree which no court can examine, because none can dispute their jurisdiction.
After this de ision, no matter how illegal, fraudulent, or unauthorized were corporation bonds, no defence could be made to them in the Federal courts, and, of course, they were all sued upon in those courts.
But when judgments were obtained, it was found that the ordinary executions did not always produce the money, and some new device was to be resorted to for this purpose. Accordingly, we find Mr. Aspinwall applying for a writ of mandamus to compel the board of commissioners to levy the tax necessary to pay his judgment. This court held, in 24th Howard, that he was entitled to the writ. This was decided only seven years ago, and is the first instance in which a Federal court ever issued a writ of mandamus to a State officer in the history of this government.
I shall examine into its authority to do so hereafter, but merely note it in passing as among the new doctrines which this court has found it necessary to establish to enforce payment of county bonds.
The next step was the decision already mentioned of Gelpcke v. Dubuque, in which the court held that the later decisions of a State court on the construction of its own constitution, although unanimous, would be disregarded in this court in county bond cases, in favor of earlier decisions made by a divided court.
