sue $200,000 of bonds in aid of the construc- | personnel of the loan commission had been tion of the Arizona Narrow Gauge Railroad Company, to which company the bonds were made payable. The entire issue was declared to be void by this court in Lewis v. Pima County, 155 Ú. S. 54, 39 L. ed. 67, 15 Sup. Ct. Rep. 22. This decision was pronounced in October, 1894.

Prior to this decision, however, owing to doubts that were entertained as to the validity of bonds issued in aid of railroads, the legislature of Arizona in 1887 and Congress in 1890 passed certain acts authorizing the refunding of territorial bonds, which had been authorized by law, and, in compliance with a memorial submitted by the legislature of Arizona, Congress passed a further act in 1896 authorizing the refunding of all outstanding bonds of the territory, and its municipalities, which had been authorized by legislative enactments, and also confirm ing and validating the original bonds, which by the 1st section were authorized to be refunded.

wholly changed; that the act authorizing the employment of loan commissioners had been repealed and no longer existed, and numerous defenses which had not been made or set up in the original answer or return. Petitioners thereupon moved to strike the amended return from the files on the ground that the same had been filed without leave of the court, and that under the decision of this court in Utter v. Franklin no new defenses could be considered. The supreme court of the territory, however, overruled the motion and permitted the amended return to be filed, to which ruling petitioners excepted. But, instead of applying to this court for a writ of mandamus to carry its mandate into effect, they proceeded with the case in the supreme court of the territory, and filed a reply to the amended return. A referee was appointed, testimony taken, and the supreme court of the territory made a finding of facts set out in the record, and awarded a peremptory writ of mandamus directing the refunding of the bonds. From this judgment defendants appealed to this court.

Messrs. Rochester Ford, John G. Carlisle, and C. F. Ainsworth for appellants. Messrs. John F. Dillon, Harry Hubbard, John M. Dillon, and William H. Barnes for appellees.

Thereupon, and on December 31, 1896, James L. Utter and Elizabeth B. Voorhies filed the petition involved in this case for a writ of mandamus to compel the loan com- Meantime, however, Elizabeth B. Voormissioners to issue refunding bonds in ex-hies, one of the petitioners, had died, and change for those originally issued by the her executors were ordered by this court to county of Pima in aid of the Narrow Gauge be substituted. Railroad Company. Defendants demurred to the petition, and for answer thereto averred that the bonds of Pima county, held by the petitioners, had been declared, both by the supreme court of the territory, and by this court, to be void, and therefore that the petition should be dismissed. They also interposed a plea of res judicata. The petition being denied by the supreme court of Arizona, the relators appealed to this court, which reversed the order of the supreme court of the territory, and remanded the case to that court for further proceedings. Utter v. Franklin, 172 U. S. 416, 43 L. ed. 498, 19 Sup. Ct. Rep. 183. This decision was made in January, 1899.

Thereupon, and on June 1, 1899, after the case was remanded to the supreme court of Arizona, respondents, by leave of the court, filed an amended return to the effect that the bonds and coupons sought to be refunded were not delivered by anyone authorized by Pima county to do so; that the county never acknowledged the validity of the bonds or paid interest thereon; that the railroad, the construction of which the legislature in tended to promote by the issue of the bonds, was never constructed, equipped, or operated; that Pima county never received any consideration whatever for the bonds; that they had been declared void by this court; that petitioners were not innocent holders of them; that the bonds and coupons were not sold or exchanged in good faith, and in compliance with the act of the legislature by which they were authorized, and that they were not intended to be included, and were not included, in the act of Congress of 1896, or any act or memorial of the legislative assembly of the territory. The return also set up the statute of limitations; that the

Mr. Justice Brown delivered the opinion of the court:

While upon the former hearing of this case, under the name of Utter v. Franklin, 172 U. S. 416, 43 L. ed. 498, 19 Sup. Ct. Rep. 183, the order of the supreme court of Arizona denying a writ of mandamus was reversed, and the case remanded for further proceedings, we expressed the opinion "that it was made the duty of the loan commissioners by these acts to fund the bonds in question." The logical inference from this was that a writ of mandamus should issue at once. True, the case was argued upon demurrer, but as the demurrer was accompanied by a plea of res judicata, which was expressly held to be untenable (p. 424, L. ed. p. 501, Sup. Ct. Rep. p. 186), it is a serious question whether the defendant should have been permitted to set up new defenses without the leave of this court. Re Potts, 166 U. S. 263, 267, 41 L. ed. 994, 996, 17 Sup. Ct. Rep. 520; Ex parte Union S. B. Co. 178 U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. 904; Wayne County v. Kennicott, 94 U. S. 498, 24 L. ed. 260; New Orleans v. Warner, 180 U. S. 199, 203, 45 L. ed. 493, 495, 21 Sup. Ct. Rep. 353; Stewart v. Salamon, 94 U. S. 434, 24 L. ed. 275; Gaines v. Rugg, 148 U. S. 228, sub nom. Gaines v. Caldwell, 37 L. ed. 432, 13 Sup. Ct. Rep. 611. The reason for such a course applies with special cogency to this case in view of the statute of Arizona (Rev. Stat. 1887, § 734), declaring

suit. 3. Matters denying the sufficiency of the complaint, or of any cause of action therein, by demurrer, general or special. 4. Matters in bar of the action. 5. Matters of counterclaim and set-off."

that the "defendant in his answer may plead | ficer, and the duty be an official one, still as many several matters, whether of law or the writ is aimed exclusively against him as fact, as may be necessary for his defense, a person, and he only can be punished for and which may be pertinent to the cause, disobedience. The writ does not reach the but such pleas shall be stated in the follow-office. It cannot be directed to it. It is, ing order, and filed at the same time: 1. therefore, in substance a personal action, Matters denying the jurisdiction of the and it rests upon the averred and assumed court. 2. Matters in the abatement of a fact that the defendant has neglected or refused to perform a personal duty, to the performance of which, by him, the relator has a clear right. It necessarily follows from this that, on the death or retirement from office of the original defendant, the writ must abate in the absence of any statutory provision to the contrary. When the personal duty exists only so long as the of-✦ fendant to perform it after his power to perform has ceased. And if a successor in office may be substituted, he may be mulcted in costs for the fault of his predecessor, without any delinquency of his own." This language has evidently but an imperfect application to a case where the delinquency is not personal, but official, and the action is not that of an individual, but of a body of men in their collective capacity.

Of the numerous defenses upon the merits set up in the amended return, but two are pressed upon our attention, namely, whether the petition abated by a change office is held, the court cannot compel the dethe personnel of the loan commission, or by a repeal of the act abolishing the commission altogether.

1. The court was correct in holding that the change in the personnel of the commission did not abate the proceeding, which was not taken against the individuals as such, but in their official capacity as loan commissioners. The original petition was entitled and brought by Utter and Voorhies, plaintiffs, against "Benjamin J. Franklin, C. P. Leitch, and C. M. Bruce, loan commissioners of the territory of Arizona," and the prayer was for a writ of mandamus requiring the defendants, "acting as the loan commissioners of the territory," to issue the refunding bonds.

The question when a suit against an individual in his official capacity abates by his retirement from office has been discussed in a number of cases in this court, and a distinction taken between applications for a mandamus against the head of a department or bureau for a personal delinquency, and those against a continuing municipal board with a continuing duty, and the delinquency is that of the board in its corporate capacity. The earliest case is that of The Secretary v. McGarrahan, 9 Wall. 298, sub nom. Cox v. United States ex rel. McGarrahan, 19 L. ed. 579, which was a writ of mandamus against Mr. Browning, then Secretary of the Interior, in which it appeared that Mr. Browning had resigned some months before the decision of the court was announced. It was held that the suit abated by his resignation, because he no longer possessed the power to execute the commands of the writ, and that his successor could not be adjudged in default, as the judgment was rendered against him without notice or opportunity to be heard. The same question was more fully considered in United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721, in which it was held that a mandamus against the Secretary of the Treasury abated on his death or retirement from office, and that his successor could not be brought in by way of amendment or order of substitution. Said Mr. Justice Strong: "But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus is the personal obligation of the individual to whom it addresses the writ. If he be an of

These were followed by Warner Valley Stock Co. v. Smith, 165 Ú. S. 28, 41 L. ed. 621, 17 Sup. Ct. Rep. 225, wherein a bill in equity against the Secretary of the Interior and the Commissioner of the General Land Office, by their personal names, to restrain them from exercising jurisdiction with respect to the disposition of certain public lands, and to compel the Secretary to issue patents therefor to the plaintiff, was held to abate, as to the Secretary, upon his resig nation from office, and could not afterwards be maintained against the Commissioner alone.

In United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 42 L. ed. 873, 18 Sup. Ct. Rep. 441, it was held that a suit to compel the Commissioner of Patents to issue a patent abates by the death of the Commissioner, and cannot be revived so as to bring in his successor, although the latter gives his consent. See also United States ex rel. Warden v. Chandler, 122 U. S. 643, 30 L. ed. 1244; United States ex rel. International Contracting Co. v. Lamont, 155 U. S. 303, 39 L. ed. 160, 15 Sup. Ct. Rep. 97; United States ex rel. Long v. Lochren, 164 U. S. 701, 41 L. ed. 1181, 17 Sup. Ct. Rep. 1001.

It was doubtless to meet the difficulties occasioned by these decisions that Congress, on February 8, 1899, passed an act (30 Stat. at L. 822, chap. 121) to prevent the abatement of such actions.

We have held, however, in a number of cases, that if the action be brought against a continuing municipal board it does not abate by a change of personnel. Thus, in Leavenworth County v. Sellew, 99 U. S. 624, 25 L. ed. 333, which was an application for a mandamus against a board of county commissioners and its individual members to compel them to levy a tax to pay a judg ment, it was held that the action would lie, though the terms of the members had ex

pired, and the case of Boutwell was distin-bership, and that the individuals constitut guished upon the ground that the county ing the board at the time the peremptory commissioners were "a corporation created writ was issued may be compelled to obey and organized for the express purpose of per-it. As we said in Thompson's Case, 103 U. forming the duty, among others, which the S. 480, 26 L. ed. 521, "the proceedings may relator seeks to have enforced. The alter- be commenced with one set of officers, and native writ was directed both to the board terminate with another the latter being in its corporate capacity and to the individ-bound by the judgment." ual members by name, but the peremptory

It is true the loan commissioners were not writ was ordered against the corporation made a corporation by the act constituting alone." Said the Chief Justice: "One of the the board, but they were vested with power, objects in creating such corporations, cap-and were required to perform a public duty; able of suing and being sued, and having per- and, in case of refusal, the performance of petual succession, is that the very inconven- such duty may be enforced by mandamus, ience which manifests itself in Boutwell's under § 2335 of the Revised Statutes of AriCase may be avoided. In this way the of- zona of 1887, which provides that "the writ fice can be reached and the officer compelled of mandamus may be issued by the supreme to perform its duties, no matter what or district court to any inferior tribunal, changes are made in the agents by whom the corporation, board, or person, to compel the officer acts. The board is in effect the of performance of an act which the law speficer, and the members of the board are but cially enjoins." As, under the act of Conthe agents who perform its duties. While gress, as well as the territorial act, the board the board is proceeded against in its corpo- was made a continuing body with corporate rate capacity, the individual members are succession, the fact that it is not made a corpunished in their natural capacities for fail-poration by name is immaterial. ure to do what the law requires of them as the representatives of the corporation."

2. Respondents, however, relied largely upon the fact that as the loan commission of Arizona was abolished prior to the judgment of the supreme court in this case, there are now no persons upon whom the duty rests to fund the bonds in question, or against whom the writ of mandamus can go. There is no doubt that the legislature of Arizona did, on March 13, 1899, pass an act "to Abolish the Loan Commission," hereinafter set forth in full. But, in order to determine the effect of such act, it will be necessary to give a synopsis of the prior acts, both territorial and congressional, upon the same subject.

This was followed by Thompson v. United States, 103 U. S. 480, 26 L. ed. 521, which was a petition for a mandamus to compel the clerk of a township to certify a judgment obtained by the relator against the township, to the supervisor, in order that the amount thereof might be placed upon the tax roll. It was held that the proceeding did not abate by the resignation of the clerk upon the appointment of his successor; citing People ex rel. Shaut v. Champion, 16 Johns. 61, and People ex rel. Case v. Collins, 19 Wend. 56. See also Re Parker, 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708. To meet certain objections that had been We think these cases control the one un-raised to the validity of bonds issued in aid der consideration, and that they are clearly distinguishable from the others. The loan commission of Arizona was originally created by an act of the territorial legislature of 1887 (Laws of 1887, title 31), the 1st section of which reads as follows:

"2039 (Sec. 1.) For the purpose of liquidating and providing for the payment of the outstanding and existing indebtedness of the territory of Arizona, the governor of the said territory, together with the territorial auditor and territorial secretary, and their successors in office, shall constitute a board of commissioners, to be styled the loan commissioners of the territory of Arizona, and shall have and exercise the powers and perform the duties hereinafter provided."

Congress, by an act approved June 25, 1890, re-enacted this statute substantially verbatim. 26 Stat. at L. 175, chap. 612. As the members of this commission and their successors in office were constituted a loan commission for the express purpose of liquidating and providing for the payment of the outstanding indebtedness of the territory, and subsequently by the act of Congress of 1896 (29 Stat. at L. 262, chap. 339), of its counties, municipalities, and school districts, we think it must be treated as a continuing body, without regard to its individual mem

of railroads (which objections were subsequently sustained by this court in Lewis v. Pima County, 155 Ú. S. 54, 39 L. ed. 67, 15 Sup. Ct. Rep. 22) the legislature of Arizona on March 18, 1887, passed an act consisting of fourteen sections, the 1st section of which (above cited) constituted the gover nor, auditor, and secretary of the territory loan commissioners of the territory, for the purpose of providing for the payment of the existing territorial indebtedness of the territory due, and to become due, and for the purpose of paying and refunding the exist ing or subsisting territorial legal indebtedness, with power to issue negotiable bonds therefor. This power was limited to the legal indebtedness of the territory, and apparently had no bearing upon the indebtedness of its municipalities, certainly not upon indebtedness which had been illegally contracted.

On June 25, 1890, Congress passed an act (26 Stat. at L. 175, chap. 614) providing that the above-mentioned funding act of the territory of Arizona "be, and is hereby, amended so as to read as follows, and that as amended the same is hereby approved and confirmed, subject to future territorial legislation." The 1st section of this act is an exact copy of the 1st section of the territor

*105

ial act of 1887, with an immaterial addition | of 1870 operated as a repeal of the act of here printed in italics, and reads as follows: 1813, and that all criminal proceedings "Par. 2039 (Sec. 1.) For the purpose of li- taken under the former act failed; and that quidating and providing for the payment of even where two acts are not, in express the outstanding and existing indebtedness terms, repugnant, yet if the latter act covers of the territory of Arizona and such future the whole subject of the first, and embraces indebtedness as may be or is now authorized new provisions plainly showing that it was by law, the governor of the said territory, intended to be a substitute for the first act, together with the territorial auditor and ter- it will operate as a repeal of that act-citritorial secretary, and their successors in ing a number of prior cases. office, shall constitute a board of commis- We think that case is controlling of the sioners, to be styled the loan commissioners one under consideration, notwithstanding of the territory of Arizona, and shall have the cases of Miners' Bank v. Iowa ex rel. Disand exercise the powers and perform the trict Prosecuting Attorney, 12 How. 1, 7, 13 duties hereinafter provided." Then follow❘ L. ed. 867, 870, and Lyons v. Woods, 153 U. thirteen other sections, which are also cop- S. 661, 38 L. ed. 858, 14 Sup. Ct. Rep. 959, ies of the corresponding sections of the ter- relied upon by the respondents, which are ritorial act, with a few immaterial changes readily distinguishable. In the first case, as to the rate of interest, the form of the re- the territorial legislature of Wisconsin funding orders, and the maturity of the chartered the Miners' Bank. Afterwards, bonds, etc., and followed by an additional an act of Congress annulled the charter in section (15), providing against any further certain particulars, but left other provisions increase of indebtedness, with certain excep- in force. Thereafter, the territory was ditions, beyond that limited by a former act.vided by an act of Congress, and the terriThe first question to be considered is as to tory of Iowa erected over that former part the relation of these two acts. Is the act of of the territory of Wisconsin in which the Congress to be considered as an amendment bank was located. Later, the territorial or a repeal of the territorial act? It is true legislature of Iowa repealed the charter, and the preamble speaks of the territorial act directed the settlement of the affairs of the as being amended, and, as amended, ap- corporation by trustees under the superviproved, and confirmed. But the language sion of the court. It was held that the anis not that of an amending act, but that of a nulment of several of the provisions of the repeated and substituted act. No attention bank's charter did not make the charter of is called to the amendments, which are not the bank a congressional charter, but that even introduced in brackets, and a careful it still remained a creation of the legislature reading and comparison of the two acts are of Wisconsin, and that no Federal question required to discover where and how the ter- arose from the repeal of that charter by the ritorial act is amended. It stands as an legislature of Iowa. The case is totally dif original piece of legislation, although its dif- ferent from the one under consideration, and ferent sections contain the numbers taken that of Lyons v. Woods is equally so. from the Revised Statutes of Arizona, as There is a plain distinction between an act well as from the original act of 1887. Both of Congress amending a territorial act by acts are complete in themselves, and each is, adding or striking out particular provisions, upon its face, independent of the other. It and one re-enacting it substantially in all is impossible to say that, if the territorial its provisions. act were repealed, the act of Congress passed We therefore are constrained to hold, as three years later would also fail in conse-did the supreme court of the territory, that quence thereof, because the latter is not only the territorial act of 1887 was repealed by the later, but the paramount, act. They the act of Congress of 1890, and that the must either stand together as two independ- latter act is still in force. ent pieces of legislation, or the general, and Returning now to the subsequent legislaperhaps the sounder, rule stated in United tion, it appears that on March 19, 1891, the States v. Tynen, 11 Wall. 88, 20 L. ed. 153, territory passed an act "supplemental to be applied, that where there are two acts on the act of Congress" approved June 25, 1890, the same subject, and the latter act embraces and in compliance with the permit given by all the provisions of the first, and also new Congress for future territorial legislation, provisions, and imposes different or addi- the 1st section of which declared that the tional penalties, the latter act operates, act of Congress "be, and the same is hereby, without any repealing clause, as a repeal of now re-enacted as of the date of its ap the first. In that case, the defendant was proval," and enacted that the loan commisindicted under an act passed in 1813 for ut- sioners "shall provide" for the funding of tering and counterfeiting a certificate of cit- the outstanding indebtedness "of the terriizenship, purporting to have been issued by tory, the counties, municipalities, and school a California court. Upon a demurrer being districts within said territory, by the issufiled to the indictment, the judges differed in ance of bonds of said territory as authorized opinion, and the case was sent to this court by said act;" and also provided* (§ 7) that upon a certificate of division. While pend-"any person holding bonds, warrants, or any ing here, in 1870, Congress passed another act, embracing the whole subject of fraud against the naturalization laws, including all the acts mentioned in the law of 1813, and many others. It was held that the act

other evidence of indebtedness of the terri tory, or any county, municipality, or school district within the territory, may exchange the same for the bonds issued under the provisions of this act."

*106

*108

In the following year, and on July 13, | pealed, is the 1st section of the territorial 1892, Congress passed another act amending act of 1887, whereby the territorial goverthe act of June 25, 1890, in several imma-nor, auditor, and secretary were constituted terial particulars, not necessary to be fur- loan commissioners; that § 1 of act No. 79 ther noticed, and on August 3, 1894, it was the territorial act of March 18, 1891, passed another act amending the act of 1890, re-enacting the act of Congress of June 25, also in immaterial particulars. 1890, which, as before stated, was a substituted copy of the territorial act of 1887. Act No. 33 and act No. 74 have no bearing upon this case. The former referred only to territorial indebtedness, and the latter merely remedied defects in the records of the loan commissioners.

It seems, however, as stated in Utter v. Franklin, 172 U. S. 416, 420, 43 L. ed. 498, 500, 19 Sup. Ct. Rep. 183, that the existing legislation upon the subject was not deemed adequate by the territorial legislature, since in 1895 it adopted a memorial, urging Congress to pass such curative legislation as would protect the holders of all bonds issued under authority of its acts, the validity of which had been acknowledged, and relieve the people from the disastrous effects of re-him that the act was void so far as attemptpudiation.

In compliance with this memorial, Congress on June 6, 1896 (29 Stat. at L. 262, | chap. 339), passed an act extending the provisions of the act of June 25, 1890, and the amendatory act of 1894 the 1st section of which provided that the above acts "are hereby amended and extended so as to authorize the funding of all outstanding obligations of said territory, and the counties, municipalities, and school districts thereof, as provided in the act of Congress approved June 25, 1890," etc.; provided that such evidences of indebtedness "have been sold or exchanged in good faith in compliance with the terms of the act of the legislature by which they were authorized," and also providing that they "shall be funded with the interest thereon," etc. The 2d section provided that all bonds and other evidences of indebtedness heretofore funded by the loan commission of Arizona under the act of 1890, "are hereby declared to be valid and legal for the purposes for which they were issued and funded, and all bonds and other evidences of indebtedness heretofore issued under the authority of the legislature of said territory, as hereinbefore authorized to be funded, are hereby confirmed, approved, and validated, and may be funded as in this act provided, until January 1, 1897."

Upon this repealing act being presented to Governor Murphy, one of the defendants, for his approval, he submitted it to the attorney general for his opinion, and was advised by

ing to abolish the loan commission was concerned. He advised the governor that, so far as the bill attempted to repeal § 1 of the territorial act of 1887, it was nugatory, as there was no such section to repeal, Congress having re-enacted it and having repealed all acts or parts of acts in conflict with it, and that if it were the intention of the repealing act to repeal the act of 1887 as approved and confirmed by Congress, it was beyond the province of the territorial legislature to do so. Upon this opinion the governor returned the act without his approval, but the legislature proceeded to pass it over his veto by a two-thirds vote.

Had the territorial statute of 1887 been the sole authority for the appointment of loan commissioners, there would be much force in the argument that the repeal of this statute, as well as that of 1891, in 1899, terminated their official existence and operated even on pending cases (Merchants' Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540; Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264; Re Hall, 167 U. S. 38, 42 L. ed. 69, 17 Sup. Ct. Rep. 723); but, as we have already indicated, we think the congressional act of 1890 had already operated as a repeal of that act. Unless we are to take the position that the repeal of a territorial act operates as a repeal of an act of Congress covering the same subject, it is impossible to deny that the congressional act of 1890 is still in force. Had the latter been a mere amendment of the territorial act, the result would have been different, and a repeal of the original operated as a repeal of the congressional amendment.

This act was held in Utter v. Franklin to require the refunding of the bonds involved in the case under consideration. There is no suggestion of any attempt having been made to repeal it. This opinion was pronounced January 3, 1899, and on March 13 of the same year the legislature passed a territorial act abolishing the loan commis- It is true that the preamble of the act of sion. This act is in the following language:1890 declares that the funding territorial "An Act to Abolish the Loan Commission act of 1887 "is hereby amended," and "as and to Repeal Sundry Laws Relating amended the same is hereby approved and Thereto. confirmed, subject to future territorial leg"Be it enacted by the legislative assembly islation," and it is insisted that, under this of the territory of Arizona. Sect. 1. That power to amend, it was competent for the par. 2039, sect. 1, chapter one, title 31, of territorial legislature to repeal the act altothe Revised Statutes of the territory of Ari-gether, and that such repeal would operate zona; also that sect. 1 of act No. 79, Session also to repeal the congressional act of 1890. Laws of the 16th legislative assembly of the That, as the legislature, before the approval territory of Arizona, also act No. 33, and by Congress of the act of 1887, had the unact No. 74, Session Laws of the 18th legis-doubted power to abolish the commission lative assembly of the territory, are hereby which it had created, and as the act of 1887 repealed." was declared by Congress to be "subject to

It will be observed that I 2039, thus re-future territorial legislation," it had the