1. The State of Georgia endorsed the bonds of a railroad
company, taking a lien upon the railroad as security. The company
failing to pay interest upon the endorsed bonds, the governor of
the state took possession of the road and put it into the hands of
a receiver, who made sale of it to the state. The state then took
possession of it and took up the endorsed bonds, substituting the
bonds of the state in their place. The holders of an issue of
mortgage bonds issued by the railroad company subsequently to those
endorsed by the state, but before the default in payment of
interest, filed a bill in equity to foreclose their own mortgage
and to set aside the said sale and to be let in as prior in lien,
and for other relief affecting the property, and set forth the
above facts and made the governor and the treasurer of the state
parties. Those officers demurred.
Held that the facts in
the bill show that the state is so interested in the property that
final relief cannot be granted without making it a party, and the
court is without jurisdiction.
2. Whenever it is clearly seen that a state is an indispensable
party to enable the court, according to the rules which govern its
procedure, to grant the relief sought, it will refuse to take
jurisdiction.
3. The cases at law and in equity in which the court has taken
jurisdiction when the objection has been interposed that a state
was a necessary party to enable the court to grant relief examined
and classified.
4. The case of
United States v. Lee, 106 U.
S. 196, examined, and the limits of the decision
defined.
5. The case of
Davis v. Gray,
16 Wall. 203, questioned.
Bill in equity by holders of second mortgage bonds of a railroad
company, to foreclose their own mortgage and to set aside a
previous sale of the railroad to the State of Georgia under the
foreclosure of the first mortgage, and for other relief. Bill
dismissed below on demurrer for want of jurisdiction, and the
plaintiff below appealed. The facts appear in the opinion of the
Court.
Page 109 U. S. 447
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the decree of the Circuit Court for the
Southern District of Georgia dismissing the bill of complainant on
demurrer. The bill is filed by Cunningham a citizen of the State of
Virginia, against Alfred H. Colquitt, as Governor of the State of
Georgia, J. W. Renfroe, as treasurer of the state, the Macon &
Brunswick Railroad Company, and A. Flewellen, W. A. Lofton, and
George S. Jones, styling themselves directors of said railroad
company, John H. James, a citizen of Georgia, and the First
National Bank of Macon.
The bill sets out, with reasonable fullness and with references
to exhibits which make its statements clear, what we will try to
state as far as necessary in shorter terms.
It alleges that on the 3d day of December, 1866, the Assembly of
Georgia passed an act authorizing the governor to endorse the bonds
of the Macon and Brunswick Railroad Company to the extent of
$10,000 per mile, and that under this authority, the governor
endorsed bonds to the amount of $1,950,000 which were afterwards
negotiated by said company. The statute under which this was done
made the endorsement of these bonds to operate as a prior mortgage
upon all the property of the company, which could be enforced by a
sale by the governor upon default in payment of the bonds so
endorsed, or interest on them as it fell due. In addition to this,
the company executed and delivered to the governor, on the 22d of
June, 1870, a written mortgage confirming the lien created by the
statute, which was duly acknowledged and recorded.
October 27, 1870, the legislature, by an act amending the Act of
December 3, 1866, authorized the governor to endorse an additional
$3,000 per mile of the bonds of the company, which was done, and of
this series of bonds the complainant became the holder and owner of
nineteen for $1,000 each.
It is then alleged that on July 1, 1873, the company failed
Page 109 U. S. 448
to pay its interest coupons upon both these sets of endorsed
bonds, and that in a few days thereafter, the governor, under the
power vested in him by the act of 1866, took possession of the road
and the property of the company and placed them in the hands of
Flewellen as receiver, and that on the first Tuesday in June, 1875,
he sold said road to the State of Georgia for the sum of
$1,000,000, and made a conveyance of it to the state accordingly, a
copy of which is filed as an exhibit to the bill. It is also
alleged that the State of Georgia has taken up since that time the
entire issue of $1,950,000, giving her own bonds in place of the
bonds which she had so endorsed.
The bill assails this transaction because the governor, in
advertising the sale, gave notice that he would accept in payment
for bids bonds of the state at par, of bonds of the first series of
$1,950,000 at their market value, or cash, and would not receive
any of the second series of $600,000 in payment. Also because the
sale was made improvidently at a bad time, as the governor was
informed by his agent, Flewellen, and because the governor was not
authorized to bid for the property, and the state had no
constitutional power to make the purchase.
And it is further alleged that if the sale is not absolutely
void, it is voidable because, under the statutory and executed
mortgages, the state is trustee of the property mortgaged for the
benefit of the bondholders, and her purchase can be set aside by
the beneficiaries under the trust when they elect to do so. The
bill insists that by the taking up and payment of the first series
of endorsed bonds, their lien on the property is extinguished, and
that of the second series is now become paramount, and this suit is
brought to foreclose that mortgage lien. And if the court shall be
of opinion that the sale was valid, then the bill insists that the
holders of the second series were entitled to the paid
pro
rata under that sale, and that when the Legislature of Georgia
appropriates any money to pay the bonds which it gave in exchange
for $1,950,000 of the endorsed railroad bonds, the amount so
appropriated should be divided
pro rata between these
bonds and the $600,000 of the second series of endorsed bonds.
The prayer of the bill is for the appointment of a receiver,
Page 109 U. S. 449
to whom all the property of the company shall be delivered; that
the mortgage be foreclosed and the proceeds applied to payment of
the bonds of the second series so far as necessary for that
purpose. Or, if the court shall be of opinion that the sale was
valid, that Renfroe be enjoined from paying the coupons of interest
on the state bonds exchanged for the first series of bonds, and
that the holders thereof be made parties to the suit and be
compelled to account to the holders of the $600,000 series of bonds
for their
pro rata share of said exchanged bonds, and the
bill prays that Colquitt, the governor, and Renfroe, the treasurer,
and the three directors of the company be compelled by subpoena to
appear and answer it and certain interrogatories in it and produce
certain papers, and that Renfroe be enjoined from paying the
coupons on the state bonds, exchanged for the endorsed bonds, and
that the State of Georgia may come in and make herself a party
defendant to this bill if she should wish to do so, and there is a
prayer for general relief.
To this bill there was filed by Flewellen, Lofton, and Jones,
the directors, a demurrer and plea, as it is called. The plea is to
the effect that they have no interest in the road otherwise than as
agents of the State of Georgia, for which they hold and control the
Macon and Brunswick Railroad and all its property and franchises of
every description, and the plea and demurrer both rely on the
proposition that the court has no jurisdiction of the case, because
it cannot proceed without the state as a party, and that the court
cannot compel the state to become a party to the suit.
Renfroe, the treasurer, filed a similar plea, and Colquitt, the
governor, filed a demurrer and a plea separately.
The ground of demurrer stated by the governor is that it is
apparent on the face of the bill that the court cannot take
cognizance of the matters and things set up in said bill as against
the defendant, because it appears that he has no personal interest
in the same, but that it is an attempt to make the State of Georgia
a party to the suit through the defendant as governor, so as to
bind the state by the judgment and decision of the court in the
case.
Page 109 U. S. 450
On this demurrer of Colquitt and the joint demurrer of the three
trustees the case was decided and the bill dismissed. MR. JUSTICE
WOODS, in dismissing it, said:
"The bill is to all intents and purposes a suit against the
state. It is mainly her property, and not that of Alfred H.
Colquitt or J. W. Renfroe, that is to be affected by the decree of
this Court. It is the title of the state that is assailed. The
attack is not made against the state directly, but through her
officers. This indirect way of making the state a party is just as
open to objection as if the state had been named as a
defendant."
3 Woods' R. 426.
The failure of several of the states of the Union to pay the
debts which they have contracted and to discharge other obligations
of a contract character, when taken in connection with the
acknowledged principle that no state can be sued in the ordinary
courts as a defendant except by her own consent, has led, in recent
times, to numerous efforts to compel the performance of their
obligations by judicial proceedings to which the state is not a
party. These suits have generally been instituted in the circuit
courts of the United States, or have been removed into them from
the state courts.
The original jurisdiction of this Court has also been invoked in
the recent cases of
New Hampshire v. Louisiana and
New
York v. Louisiana. These latter suits were based on the
proposition that the constitutional provision that states might sue
each other in this Court would enable a state whose citizens were
owners of obligations of another state to take a transfer of those
obligations to herself and sue the defaulting state in the court.
The doctrine was overruled in those cases at the last term by the
unanimous opinion of the Court. In the suits which have been
instituted in the circuit courts, the effort has been, while
acknowledging the incapacity of those courts to assume jurisdiction
of a state as a party, to proceed in such a manner against the
officers or agents of the state government, or against property of
the state in their
Page 109 U. S. 451
hands, that relief can be had without making the state a
party.
The same principle of exemption from liability to suit as
applied to the government of the United States has led to like
efforts to enforce rights against the government in a similar
manner. And it must be confessed that in regard to both classes of
cases, the questions raised have rarely been free from difficulty,
and the judges of this Court have not always been able to agree in
regard to them. Nor is it an easy matter to reconcile all the
decisions of the Court in this class of cases.
While no attempt will be made here to do this, it may not be
amiss to try to deduce from them some general principles,
sufficient to decide the case before us.
It may be accepted as a point of departure unquestioned that
neither a state nor the United States can be sued as defendant in
any court in this country without their consent, except in the
limited class of cases in which a state may be made a party in the
Supreme Court of the United States by virtue of the original
jurisdiction conferred on that court by the Constitution.
This principle is conceded in all the cases, and whenever it can
be clearly seen that the state is an indispensable party to enable
the court, according to the rules which govern its procedure, to
grant the relief sought, it will refuse to take jurisdiction. But
in the desire to do that justice, which in many cases the courts
can see will be defeated by an unwarranted extension of this
principle, they have in some instances gone a long way in holding
the state not to be a necessary party, though some interest of hers
may be more or less affected by the decision. In many of these
cases, the action of the Court has been based upon principles whose
soundness cannot be disputed. A reference to a few of them may
enlighten us in regard to the case now under consideration.
1. It has been held in a class of cases where property of the
state, or property in which the state has an interest, comes before
the court and under its control, in the regular course of judicial
administration, without being forcibly taken from the possession of
the government, the court will proceed to discharge
Page 109 U. S. 452
its duty in regard to that property. And the state, if it choose
to come in as plaintiff, as in prize cases or to intervene in other
cases when she may have a lien or other claim on the property, will
be permitted to do so, but subject to the rule that her rights will
receive the same consideration as any other party interested in the
matter, and be subjected in like manner to the judgment of the
court. Of this class are the cases of
The
Siren, 7 Wall. 157;
The
Davis, 10 Wall. 20, and
Clark v. Barnard,
108 U. S. 436.
2. Another class of cases is where an individual is sued in tort
for some act injurious to another in regard to person or property,
to which his defense is that he has acted under the orders of the
government. In these cases, he is not sued as, or because he is,
the officer of the government, but as an individual, and the court
is not ousted of jurisdiction because he asserts authority as such
officer. To make out his defense, he must show that his authority
was sufficient in law to protect him.
See
Mitchell v.
Harmony, 13 How. 115;
Bates v. Clark,
95 U. S. 209;
Meigs v.
McClung, 9 Cranch 11;
Wilcox v.
Jackson, 13 Pet. 498;
Brown v.
Huger, 21 How. 305;
Grisar
v. McDowell, 6 Wall. 393.
To this class belongs also the recent case of
United States
v. Lee, 106 U. S. 196, for
the action of ejectment in that case is, in its essential
character, an action of trespass, with the power in the court to
restore the possession to the plaintiff as part of the judgment.
And the defendants, Strong and Kaufman, being sued individually as
trespassers, set up their authority as officers of the United
States, which this Court held to be unlawful, and therefore
insufficient as a defense. The judgment in that case did not
conclude the United States, as the opinion carefully stated, but
held the officers liable as unauthorized trespassers, and turned
them out of their unlawful possession.
3. A third class, which has given rise to more controversy, is
where the law has imposed upon an officer of the government a well
defined duty in regard to a specific matter, not affecting the
general powers or functions of the government, but in the
performance of which one or more individuals have a distinct
interest capable of enforcement by judicial process.
Page 109 U. S. 453
Of this class are writs of mandamus to public officers, as in
Marbury v.
Madison, 1 Cranch 137;
Kendall v.
Stokes, 3 How. 87;
United States v.
Schurz, 102 U. S. 378;
United States v.
Boutwell, 17 Wall. 604. But in all such cases, from
the nature of the remedy by mandamus, the duty to be performed must
be merely ministerial, and must involve no element of discretion to
be exercised by the officer.
It has, however, been much insisted on that in this class of
cases, where it shall be found necessary to enforce the rights of
the individual, a court of chancery may, by a mandatory decree or
by an injunction, compel the performance of the appropriate duty,
or enjoin the officer from doing that which is inconsistent with
that duty and with plaintiff's rights in the premises.
Perhaps the strongest assertion of this doctrine is found in the
case of
Davis v. Gray,
16 Wall. 203. In that case, the State of Texas having made a grant
of the alternate sections of land along which a railroad should
thereafter be located, and the railroad company having surveyed the
land at its own expense and located its road through it, the
commissioner of the state land office and the governor of the state
were, in violation of the rights of the company, selling and
delivering patents for the sections to which the company had an
undoubted vested right. The circuit court enjoined them from doing
this by its decree, which was affirmed in this Court.
Judge Hunt did not sit in the case, and Justice Davis and Chief
Justice Chase dissented on the ground that it was in effect a suit
against the state. Though there are some expressions in the opinion
which are unfavorably criticized in the opinions of both the
majority and minority of this Court in the recent case of
United States v. Lee, supra, the action of the Court has
not been overruled.
But it is clear that in enjoining the governor of the state in
the performance of one of his executive functions, the case goes to
the verge of sound doctrine, if not beyond it, and that the
principle should be extended no further. Nor was there in that case
any affirmative relief granted by ordering the governor
Page 109 U. S. 454
and land commissioner to perform any act toward perfecting the
title of the company.
The case of the
Board of Liquidation v. McComb,
92 U. S. 531, is to
the same effect. The board of liquidation was charged by the
statute of Louisiana with certain duties in regard to issuing new
bonds of the state in place of old ones, which might be surrendered
for exchange by the holders of the latter. The amount of new bonds
to be issued was limited by a constitutional provision. McComb, the
owner of some of the new bonds already issued, filed his bill to
restrain the board from issuing that class of bonds in exchange for
a class of indebtedness not included within the purview of the
statute, on the ground that his own bonds would thereby be rendered
less valuable. This Court affirmed the decree of the circuit court
enjoining the board from exceeding its power in taking up by the
new issue a class of state indebtedness not within the provisions
of the law on that subject.
In the opinion in that case, the language used by MR. JUSTICE
BRADLEY well and tersely thus expresses the rule and its
limitations:
"The objections to proceeding against state officers by mandamus
or injunction are first that it is in effect proceeding against the
state itself and second that it interferes with the official
discretion vested in the officers. It is conceded that neither of
these can be done. A state, without its consent, cannot be sued as
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 settled that where a
plain official duty requiring no exercise of discretion is to be
performed, and performance is refused, any person who will sustain
a personal injury by such refusal may have a mandamus to compel
performance, and when such duty is threatened to be violated by
some positive official act, any person who will sustain personal
injury thereby, for which adequate compensation cannot be had at
law, may have an injunction to prevent it."
It is believed that this is as far as this Court has gone in
granting relief in this class of cases. The case of
Osborn v.
Page 109 U. S. 455
Bank of the United States, 9 Wheat. 738, often referred
to, was upon this principle, and goes no further, for in that case
a preliminary injunction of the court forbidding the state officer
from placing the money of the bank, which he had seized, in the
treasury of the state, having been disregarded, the final decree
corrected this violation of the injunction by requiring the
restoration of the money thus removed.
See Louisiana v.
Jumel, 107 U. S. 711.
On the other hand, in the cases of
Louisiana v. Jumel
and
Elliott v. Wiltz, 107 U. S. 711,
decided at the last term, very ably argued and very fully
considered, the Court declined to go any further.
In the first of these cases, the owners of the new bonds issued
by the board of liquidation, mentioned in
McComb's Case,
above cited, brought their bill in equity in the circuit court of
the United States to compel the auditor of state and the treasurer
of the state to pay out of the treasury of the state the overdue
interest coupons on their bonds and to enjoin them from paying any
part of the taxes collected for that purpose for the ordinary
expenses of the government. They at the same time applied to the
state court for a writ of mandamus to the same officers, which suit
was removed into the circuit court of the United States. In this
they asked that these officers be commanded to pay out of the
moneys in the treasury the taxes which they maintained had been
assessed for the purpose of paying the interest on their bonds, and
to pay such sums as had already been diverted from that purpose to
others by the officers of the government.
The circuit court refused the relief asked in each case, and
this Court affirmed the judgment of that court.
The short statement of the reason for this judgment is that as
the state could not be sued or made a party to such proceeding,
there was no jurisdiction in the circuit court, either by mandamus
at law or by a decree in chancery, to take charge of the treasury
of the state, and, seizing the hands of the auditor and treasurer,
to make distribution of the funds found in the treasury in the
manner which the court might think just.
Page 109 U. S. 456
THE CHIEF JUSTICE said:
"The treasurer of the state is the keeper of the money collected
from this tax, just as he is the keeper of other public moneys. The
taxes were collected by the tax collectors, and paid over to him --
that is to say, into the state treasury -- just as other taxes were
when collected. He is no more a trustee of these moneys than he is
of all other public moneys. He holds them only as agent of the
state. If there is any trust, the state is the trustee, and unless
the state can be sued, the trustee cannot be enjoined. The officers
owe duty to the state alone, and have no contract relations with
the bondholders. They can only act as the state directs them to act
and hold as the state allows them to hold. It was never agreed that
their relations with the bondholders should be other than as
officers of the state, or that they should have any control over
this fund except to keep it like other funds in the treasury, and
pay it out according to law. They can be moved through the state,
but not the state through them."
We think the foregoing cases mark with reasonable precision the
limit of the power of the courts in cases affecting the rights of
the state or federal governments in suits to which they are not
voluntary parties.
In actions at law, of which mandamus is one, where an individual
is sued as for injuries to person or to property, real or personal,
or in regard to a duty which he is personally bound to perform, the
government does not stand behind him to defend him. If he has the
authority of law to sustain him in what he has done, like any other
defendant he must show it to the court and abide the result. In
either case, the state is not bound by the judgment of the court,
and generally its rights remain unaffected. It is no answer for the
defendant to say I am an officer of the government and acted under
its authority unless he shows the sufficiency of that
authority.
Courts of equity proceed upon different principles in regard to
parties. As was said in
Barney v.
Baltimore, 6 Wall. 280, there are persons who are
merely formal parties without real interest, and there are those
who have an interest in the suit, but which will not be injured by
the relief sought, and there
Page 109 U. S. 457
are those whose interest in the subject matter of the suit
renders them indispensable as parties to it. Of this latter class
the Court said in
Shields v.
Barrow, 17 How. 130,
"they are persons who not only have an interest in the
controversy, but an interest of such a nature that a final decree
cannot be made without affecting that interest, or leaving the
controversy in such a condition that its final disposition may be
wholly inconsistent with equity and good conscience."
"In such cases,' says the Court in
Barney v. Baltimore,
supra, 'the court refuses to entertain the suit when these
parties cannot be subjected to its jurisdiction."
In the case now under consideration, the State of Georgia is an
indispensable party. It is in fact the only proper defendant in the
case.
No one sued has any personal interest in the matter or any
official authority to grant the relief asked. No foreclosure suit
can be sustained without the state, because she has the legal title
to the property, and the purchaser under a foreclosure decree would
get no title in the absence of the state. The state is in the
actual possession of the property, and the court can deliver no
possession to the purchaser. The entire interest, adverse to
plaintiff, in this suit is the interest of the State of Georgia in
the property, of which she has both the title and possession.
On the hypothesis that the foreclosure by the governor was
valid, the trust asserted by plaintiff is vested in the state as
trustee, and not in any of the officers sued.
No money decree can be rendered against the state, nor against
its officers, nor any decree against the treasurer, as settled in
Louisiana v. Jumel.
If any branch of the state government has power to give
plaintiff relief, it is the legislative. Why is it not sued as a
body, or its members by mandamus to compel them to provide means to
pay the state's endorsement?
The absurdity of this proposition shows the impossibility of
compelling a state to pay its debts by judicial process.
The decree of the circuit court is affirmed.
Page 109 U. S. 458
MR. JUSTICE HARLAN, dissenting.
The bill in this suit was filed by Cunningham, a citizen of
Virginia, in behalf of himself and all holders of the second series
of the bonds of the Macon and Brunswick Railroad Company, endorsed
by the State of Georgia, who may choose to be made parties to the
suit and share the expenses thereof.
The defendants are The Macon and Brunswick Railroad Company, a
corporation of Georgia; Edward A. Flewellyn, W. L. Lofton, and
George S. Jones, citizens of Georgia, and styling themselves
"Directors of the Macon and Brunswick Railroad;" J. W. Renfroe,
treasurer, and Alfred H. Colquitt, Governor, of the State of
Georgia, both citizens of that state; the First National Bank of
Macon, a corporation created under the laws of the United States
and located at Macon, Georgia, and John H. James, a citizen of
Georgia.
The suit relates to the Macon and Brunswick Railroad, of which
Flewellyn, Lofton, and Jones, as directors aforesaid, are in
possession, and which they are managing and operating in entire
disregard, as the bill alleges, of the rights of complainant and
other holders of the before-mentioned bonds.
But the suit has other features of which no notice is taken in
the opinion of the Court. The bill alleges that on or about July 2,
1873, the then Governor of Georgia not only seized the railroad and
all other property of the company, but certain other property
embraced in a deed of trust to one Whittle, which was not covered
by the statutory and executed mortgages, so far as the $1,950,000
series of endorsed bonds is concerned, because acquired by the
company, after the last of that series had been endorsed, with
funds other than the proceeds of the bonds, but which was covered
by the mortgages so far as the $600,000 series is concerned, having
been bought prior to the endorsement of those bonds. The property
covered by the deed of trust to Whittle was, the bill alleges,
transferred to the trustees therein named, with directions to
dispose of it, and with the proceeds to redeem certain fare bills
of the company; but the trust was never carried out, because the
fare bills were fully paid out of the earnings of the railroad.
Page 109 U. S. 459
The bill charges that the sale at which the Governor of Georgia
purchased the property for the state was void:
"1. Because neither the legislature nor the governor had the
right to exclude the $600,000 series of endorsed bonds from being
used as so much cash, in the purchase of said road at their face
value -- certainly they were entitled to be so used, in the event
of the exhaustion of the $1,950,000, which themselves should have
been received as cash at par."
"2. Because the governor was not authorized to bid on said
property for the state, and the state had no constitutional power
to make the purchase, or, if said sale is not void, it is certainly
voidable, because, under the statutory and executed mortgages, the
state is the trustee of the property mortgaged for the benefit of
the bondholders, and had no right to buy at her own sale, as such
trustee, without incurring the risk of having said sale set aside
at the instance of any beneficiary under the trust, and your
orator, as such beneficiary, elects to set aside such sale."
The suit proceed in part upon the general ground that the
mortgages in question are mortgages to the Governor of Georgia, as
trustee for the bondholders, to secure the payment of bonds
endorsed by the state, and not mortgages of indemnity to save the
state harmless against liability incurred by her endorsement. If,
however, the court should be of opinion that the mortgages are for
the indemnity of the state and that the sale of the railroad and
purchase by the state are valid, then the complainant insists that
both series of endorsed bonds stand upon an equal footing, and that
the sums paid by the treasurer of the state, in taking up the
coupons of the state bonds which have been exchanged for the
$1,950,000 series of the Macon and Brunswick Railroad endorsed
bonds, represent a portion of these proceeds, and should be paid
pro rata upon both series of bonds; that when the
Legislature of Georgia appropriates any sum for the principal of
the state bonds so exchanged, such sum should in like manner be
divided
pro rata among the holders of both series of
endorsed bonds, and that the state bonds so exchanged should
themselves be treated as the proceeds of the sale of the railroad,
and divided
Page 109 U. S. 460
pro rata among all the holders of both series of state
endorsed bonds.
The case went off in the court below on demurrer and pleas which
questioned the right of complainant to relief solely upon the
ground that the suit was against the state, which was not, and
could not be made, a party to the suit.
It is true, as stated in the opinion of the Court, that the
property to which the suit relates is in the actual possession of
some of the defendants, who assert no individual claim thereto, but
are acting for and on behalf of the state. It is also true that the
apparent legal title to the property embraced by the mortgages,
other than such as was covered by the deed to Whittle, stands in
the name of the state. But the suit proceeds upon the ground that
Georgia, by her officers, is not rightfully in possession, and that
no valid title passed to the state by virtue of the sale in
question. The issue is distinctly made by the bill that the
governor was not authorized to bid in the property, and that the
state had no constitutional power to make the purchase. But the
Court fails to consider or pass upon these questions. If the Court
had found that the sale under which the state claimed was valid,
and that the governor had legal authority to make the purchase in
virtue of which the officers of the state claim to be rightfully in
possession in her behalf; or had it been adjudged that the
complainant, and those united in interest with him, had no lien or
claim upon the property, I should not, perhaps, have expressed any
dissent, however much I may have differed with my brethren upon
such questions. In other words, if the state was ascertained to be
the lawful owner and entitled to the possession of the property in
question, I should recognized the legal difficulties in the way of
enforcing a lien thereon for any purpose in behalf of others, for
the enforcement of such lien would in the case supposed necessarily
disturb the rightful possession of the state, which could not be
sued against her will, and without whose presence in the suit a
final comprehensive decree could not be passed.
But such is not the case before us. The cause to be determined
is that made by the bill. Its averments are admitted
Page 109 U. S. 461
by the demurrer and are not controverted by the pleas. They show
that the property, although held by officers of the state as her
absolute property, is not rightfully so held. It is this aspect of
the present decision which constrains me to dissent from the
opinion of the Court. If the citizen asserts a claim or lien upon
property in the possession of officers of a state, the doors of the
courts of justice, whether the suit be at law or in equity, ought
not to be closed against him because those officers assert
ownership in the state. The Court should examine the case so far as
to determine whether the state's title rests upon a legal
foundation. If that title is found to be insufficient, and if the
state, claiming its constitutional exemption from suit, refuses to
appear in the suit as a party of record, the Court ought to proceed
to a final decree as between for complainant and those who are in
possession of the property, leaving the state to assert her claim
in any suit she might bring. This must be so, otherwise the citizen
may be deprived of his property and denied his legal rights simply
because the officers of a state take possession of and hold it for
the state.
Such was the ruling of this Court in
United States v.
Lee, 106 U. S. 196.
That was an action to recover the possession of what was formerly
known as the Arlington estate. The defendants held possession of
the property in no other capacity than as officers and agents of
the United States. The Attorney General of the United States
appeared, and in due form gave the Court to understand that the
property in controversy was then, and for more than ten years had
been, held, occupied, and possessed by the United States, through
their officers and agents, as public property for public purposes,
in the exercise of their sovereign and constitutional powers --
namely, as a military station and as a national cemetery
established for the burial of deceased soldiers and sailors of the
Union. Upon these grounds it was contended that no action could be
maintained which would disturb the control of those who were in
possession for the United States. The contention in behalf of the
government was that the United States could not be sued without
their consent, and that the maintenance of a suit against their
officers and agents for the purpose of ousting them from the
possession of the Arlington Cemetery would be
Page 109 U. S. 462
an encroachment upon the powers entrusted by the Constitution to
the legislative and executive departments.
But to this argument the response of this Court was that under
the American system of government, the people, called elsewhere
subjects, were sovereign; that their "rights, whether collective or
individual, are not bound to give way to a sentiment of loyalty to
the person of a monarch;" that
"the citizen here knows no person, however near to those in
power or however powerful himself, to whom he need yield the rights
which the law secures to him when it is well administered;"
that
"when he, in one of the courts of competent jurisdiction, has
established his right to property, there is no reason why deference
to any person, natural or artificial, not even the United States,
should prevent him from using the means which the law gives him for
the protection and enforcement of that right; . . . that no man in
this country is so high that he is above the law; no officer of the
law may set that law at defiance with impunity; all the officers of
the government, from the highest to the lowest, are creatures of
the law, and are bound to obey it."
Upon examination of the doctrine that except where Congress has
provided, the United States cannot be sued, we held that it had no
application to officers and agents of the United States who,
holding possession of property for public uses, are sued therefor
by a person claiming to be the owner thereof or entitled thereto;
but the lawfulness of that possession and the right or title of the
United States to the property may, by a court of competent
jurisdiction, be the subject matter of the inquiry, and adjudged
accordingly.
In the case just cited we quoted with approval the language of
Chief Justice Marshall in
United States v.
Peters, 5 Cranch 115, where, speaking for the
Court, he said that
"it certainly can never be alleged that a mere suggestion of
title in a state to property in possession of an individual must
arrest the proceedings of the court and prevent them looking into
the suggestion and examining the validity of the title."
In
United States v. Lee, we also referred with approval
to the decision in
Osborn v. Bank of the United
States, 9 Wheat. 738. That was a suit by the Bank
of the United States against the
Page 109 U. S. 463
Auditor, Treasurer, and other agents of the State of Ohio. The
state, by its officers, levied a tax upon the bank, which it
refused to pay. The state auditor seized the money of the bank in
payment of the tax and delivered it to the treasurer of the state.
The latter held it when the suit was brought, and the right of the
state to hold the money in discharge of its taxes was the
fundamental question in the case. The state was not made a party
because, by the Constitution, the judicial power of the United
States did not extend to a suit against one of the United States by
citizens of another state. It was conceded that the state was the
real party in interest. That of which the bank complained were the
acts of the defendants in their official character and done in
obedience to the statutes of Ohio. The contention, therefore, was
that as the state could not be sued, the suit must be dismissed.
But to this the Court, speaking by Chief Justice Marshall,
replied:
"If the State of Ohio could have been made a party defendant, it
can scarcely be denied that this would be a strong case for an
injunction. The objection is that as the real party cannot be
brought before the court, a suit cannot be sustained against the
agents of that party, and cases have been cited to show that a
court of chancery will not make a decree unless all those who are
substantially interested be made parties to the suit. This is
certainly true where it is in the power of the plaintiff to make
them parties; but if the person who is the real principal, the
person who is the true source of the mischief, by whose power and
for whose advantage it is done, be himself above the law, be exempt
from all judicial process, it would be subversive of the best
established principles to say that the laws could not afford the
same remedies against the agent employed in doing the wrong which
they would afford against him could his principal be joined in the
suit."
The relief asked was granted without the state becoming a party
to the record.
In
United States v. Lee, the language just quoted from
Osborn v. Bank of the United States was distinctly
approved, and the adjudged cases were held to show that the
proposition
Page 109 U. S. 464
that when an individual is sued in regard to property which he
holds in his capacity as an officer or agent of the United States,
his possession cannot be disturbed when that fact is brought to the
attention of the court has been overruled and denied in every case
where it has been necessary to decide it.
In my judgment, it is impossible to reconcile the decision here
with the ruling in the
Arlington case. As I concurred in
the opinion and judgment in the latter case, I am constrained to
withhold my assent to the present decision. In
United States v.
Lee, the judicial power was deemed ample to oust officers of
the United States from the possession of property claimed by them,
not as individuals, but as the representatives of their government.
The possession of the government by its officers did not prevent
the Court from inquiring into the alleged title of the United
States, and from awarding possession to those who claimed it as
their property. But in the case before us, the State of Georgia is
allowed an exemption which the Court did not feel at liberty to
extend to the United States. The claim of complainant is that he
and others, holding bonds endorsed by that state, have a lien upon
property in the possession of certain individuals. The latter
assert a valid, complete title and the right of exclusive
possession in the state. But the complainant contends that the
alleged title of the state is not good in law; that the sale in
virtue of which the state asserts title and holds possession was
not a valid sale; that in any event the state or her governor holds
the title merely as a trustee for others.
In effect, my brethren say that they will not determine these
matters, and that because it appears that the state is a
substantial party in interest, and that the defendants are only her
officers in possession in her behalf, the complainant and those
united in interest with him must to out of court. It seems to me
that the grounds upon which the Court proceeds would have led to a
different conclusion not only in
United States v. Lee, but
in all the prior decisions therein referred to as authority for the
judgment in that case.
The Court says that the judgment in
United States v.
Lee did not conclude the United States. So it may be said
here,
Page 109 U. S. 465
that no decree rendered would have concluded the State of
Georgia had she declined to appear in the suit. But as in the
former case the Court did not decline to give relief because of the
mere assertion of title in the United States, so in this case the
mere assertion of title in the state should not have prevented an
adjudication as to complainants' claim. Had the Court ascertained
that the property in contest was in the rightful possession and
control of the state then, but not before, the question would have
arisen whether the bill must not be dismissed, so long as the state
refused to become a party to the suit.
The Court in its opinion reviews numerous other cases, and
states the principles upon which, in its judgment, they were
decided. I content myself with saying that the correctness of that
review is not conceded.
Limitations and qualifications are now placed upon former
decisions which their language, I submit, does not justify. A doubt
is now expressed as to whether
Davis v.
Gray, 16 Wall. 215, did not go beyond the verge of
sound doctrine -- this notwithstanding the decision in the
Arlington case was made to rest largely upon
Davis v.
Gray. In the
Arlington case, we quoted from
Davis
v. Gray, a suit in equity, the following statement of the
doctrine applicable to suits in the determination of which a state
is interested:
"Where the state is concerned, the state should be made a party
if it can be done. That it cannot be done is a sufficient reason
for the omission to do it, and the court may proceed to decree
against the officers of the state in all respects as if the state
were party to the record. In deciding who are parties to the suit,
the court will not look beyond the record. Making a state officer a
party does not make the state a party,
although her law may
have prompted his action, and the state may stand behind him as a
real party in interest. A state can be made a party only by
shaping the bill expressly with that view, as where individuals or
corporations are intended to be put in that relation to the
case."
The only comment made in the
Arlington case upon this
language was
"that though not prepared to say now that the
Page 109 U. S. 466
Court can proceed against the officer 'in all respects' as if
the state were a party, this may be taken as intimating in a
general way the views of the Court at that time."
But I especially dissent from the statement by the Court of the
question involved in
Louisiana v. Jumel, 107 U.
S. 711. Had the Court there denied relief upon the
ground that granting it would be
"to take charge of the treasury of the state and, seizing the
hands of the auditor and treasurer, to make distribution of the
funds found in treasury in the manner which the court might think
just,"
I should not in that case have expressed and dissent from the
action of my brethren. I am unwilling by silence to accede to the
suggestion that the substantial relief asked in
Louisiana v.
Jumel could not have been granted without taking charge of the
treasury of the state. There were in the hands of the Treasurer of
Louisiana money raised by taxation under certain constitutional and
statutory provisions. It was money which, by contract with
creditors of the state, was set apart and appropriated to the
payment of the interest due on designated bonds of the state. The
records of the state treasurer's office showed the exact amount
obtained by taxation for that purpose. It was in the power of the
officers of the state to have paid that money out in discharge of
her contract obligations without the slightest confusion in the
accounts of the state treasurer. The contrary was not claimed by
those officers. But the treasurer and other officers declined to
apply the money in their hands for the purpose to which it had been
dedicated. They rested their refusal upon an ordinance passed by
the state, which was conceded, on all hands, to be a palpable
violation of the Constitution of the United States, and therefore
null and void. As a reason for not discharging a plain official
duty imposed by law, those officers referred to a void provision in
the Constitution of Louisiana, and it was held that there was no
power in the courts of the Union to compel the performance of that
duty. The court declined to give any relief against the state
officers of Louisiana, partly upon the ground that the relief
asked
"will require the officers against whom the process is issued to
act contrary to the positive
Page 109 U. S. 467
orders of the supreme political power of the state, whose
creatures they are, and to which they are ultimately responsible in
law for what they do."
"They must," proceeded this Court,
"use the public money in the treasury and under their official
control in one way when the supreme power has directed them to use
it in another, and they must raise more money by taxation, when the
same power has declared that it shall not be done."
Thus, the Constitution of the United States, which is the
supreme law of the land, anything in the Constitution or laws of
any state to the contrary notwithstanding, was, as I then thought
and still think, subordinated to "the supreme political power" of
the State of Louisiana.
My brethren declare it to be impossible to compel a state to pay
its debts by judicial process. As no decree was asked against the
state on the bonds held by complainant, and since the state was not
made a party to the record, it is difficult to perceive why it was
deemed necessary to make that declaration. But if thereby it was
meant that no state can be sued as a party to the record, and no
judgment rendered against it as a party defendant, the proposition
will not be disputed. I submit, however, that under our system of
government, the citizen may demand that the courts shall determine
his claim to, or his alleged lien upon, property by whatever
individuals that property may be held, and that he cannot be denied
an adjudication and enforcement of that claim merely because the
individuals sued assert right of possession and title in the
government they represent. The hardship and injustice of a
different rule is well illustrated in the present case, especially
as respects the property embraced by the deed of trust to Whittle.
The bill alleges, and the demurrer admits, that that property was
not covered by the statutory and executed mortgages upon which the
state rests its claim. If these averments are true, the State of
Georgia has no pretense of right, by its officers, to hold that
property. But my brethren adjudge -- if I do not misapprehend the
opinion -- that the assertion by defendants of title in the state
is sufficient to preclude judicial inquiry into the rightfulness of
their possession or the validity of the state's title.
Page 109 U. S. 468
My brethren say that
"on the hypothesis that the foreclosure by the governor was
valid, the trust asserted by plaintiff is vested in the state as
trustee, and not in any of the officers said."
But may not the Court inquire whether that hypothesis be sound?
Must it be assumed to be sound because the officers of the state so
declare? Besides, if the alleged trust was vested in the state as
trustee -- if, as claimed by complainant, the state became the
trustee of the property mortgaged for the benefit of the
bondholders -- may not the Court proceed to a decree as between the
parties to the record? If the trustee cannot be made a party, and
refuses to appear, the Court ought not, for that reason, to permit
the interests of others to be sacrificed. If the officers of the
United States may be deprived of the possession of property held by
them for the government but the title to which is judicially
ascertained, in an action against them only, not to be legally in
the United States, I do not see why the courts may not at the suit
of the citizen enforce their claims upon property as against
officers of a state who may be judicially ascertained, in a suit
against them, not to be in rightful possession for such state. Such
relief would not conclude the rights of the state, but would leave
to her the privilege of asserting her claim in any court of
competent jurisdiction.
I am authorized by MR. JUSTICE FIELD to say that he concurs in
this opinion.