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series is concerned, having been bought prior to the indorsemont 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. 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 indorsed 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 proceeds 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 indorsed by the state, and not mortgages of indemnity to save the state harmless against liability incurred by her indorsement. 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 indorsed 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 & Brunswick Railroad indorsed 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 indorsed bonds; and that the state bonds so exchanged should themselves be treated as the proceeds of the sale of the railroad, and divided pro rata among all the holders of both series of state indorsed 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 mort

gages, 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 consti. tutional 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 recognize 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 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 the 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 U. S. v. Lee, 106 U. S. 196; [S. C. 1 SUP. CT. REP. 240.] 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 under

stand that the property in controversy was then, and for more than 10 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 main. tained 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 an encroachment upon the powers intrusted 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 U. S. 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 U. S. v. Lee we also referred with approval to the decision in Osborn v. Bank of U. S. 9 Wheat. 738. That was a suit by the

Bank of the United States against the 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 U. S. v. Lee the language just quoted from Osborn v. Bank of U. S. was distinctly approved, and the adjudged cases were held to show that the proposition, 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, 106 U. S. 196; [S. C. 1 Sup. Cr. REP. 240.] As I concurred in the opinion and judgment in the latter case, I am constrained to withhold my assent to the present decision. In U. S. 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 indorsed 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 go 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 U. S. v. Lee, but in all the prior decisions therein referred to as authority for the judgment in that case. The court say that the judgment in U. S. v. Lee did not conclude the United States. So it may be said here, 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."

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