Clifford v. Miller

• Decision Date: 14 March 1923
• Docket Number: 3944.
• Citation: 288 F. 537
• Parties: CLIFFORD, Superintendent of Department of Labor and Industries, et al. v. MILLER, Alien Property custodian.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F. 537

CLIFFORD, Superintendent of Department of Labor and Industries, et al. v. MILLER, Alien Property custodian.

No. 3944.

United States Court of Appeals, Ninth Circuit.

March 14, 1923

Rehearing Denied April 16, 1923.

Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E Cushman, Judge.

Suit in equity by Thomas W. Miller, Alien Property Custodian, against Edward Clifford, Superintendent of the Department of Labor and Industries of the State of Washington, and another. Decree for complainant, and defendants appeal. Affirmed.

Lindsay L. Thompson, Atty. Gen., and John H. Dunbar, Asst. Atty Gen., of State of Washington, and E. Heister Guie and Dallas v. Halverstadt, both of Seattle, Wash., for appellants.

H. G Rowland, of Tacoma, Wash. (Dix H. Rowland, of Tacoma, Wash., of counsel), for appellee.

Before GILBERT, MORROW, and RUDKIN, Circuit Judges.

RUDKIN Circuit Judge.

Speaking generally, the Workmen's Compensation Act of the state of Washington (Rem. Code 1915, Secs. 6604-- 1 to 6604-- 32) abolishes civil actions and civil causes of action as between employer and employee, in certain cases, and substitutes a system of compensation in their place. On or before January 15th of each year employers engaged in employments classed as extrahazardous are required to pay into the accident fund in the state treasury a fixed percentage of their total pay roll of that year, and a schedule of awards for injured employees, or their dependents, in case of death, is provided, payable from the accident fund. A department for the administration of the act is created, and claims for compensation must be filed with the department within one year. All claims thus presented are examined by the department, and a court review is provided for. Disbursements out of the accident fund can only be made upon warrants drawn by the state auditor upon vouchers therefor transmitted to him by the department and audited by him. Such warrants are paid by the state treasurer out of the accident fund upon which they are drawn. Rem. Code 6604--1 et seq.

Many claims for compensation arising under this act have been presented by alien enemies. In some cases warrants have been issued and are now in the custody of the defendants for delivery, while in other cases the claims have been allowed and approved by the department, and the state auditor is ready and willing to issue warrants upon the presentation of vouchers, but the defendants have refused and still refuse to issue or transmit the necessary vouchers. The present suit was instituted by the Alien Property Custodian to obtain possession of the warrants already issued and to compel the defendants to issue and transmit proper vouchers, so that the remaining warrants can be obtained. A list of the warrants issued and of the claims allowed and approved is attached to the complaint and final decree. The defendants interposed a motion to dismiss, on the ground that the suit was against the state of Washington, and that the court was therefore without jurisdiction over either the subject-matter of the suit, or the parties thereto. The motion was denied, the defendants refused to plead further, and a final decree was entered against them. The decree directed the defendants to forthwith deliver to the plaintiff the warrants heretofore issued and to issue and transmit vouchers for the claims allowed and approved. From the final decree this appeal is prosecuted, and the want of jurisdiction in the court below is the sole question presented for our consideration.

The question whether a suit against state officers is a suit against the state, within the meaning of the Eleventh Amendment, has been the subject of consideration by the Supreme Court in many cases. Discussing that question in Board of Liquidation et al. v. McComb, 92 U.S. 531, 541 (23 L.Ed. 623), the court said:

'On this branch of the subject the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against state officers by mandamus or injunctions are: First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is

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