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property and Haller's attempt to obtain it by release from the McReynolds and Meriweather trust. It was subsequently specifically covered in the conveyance in trust for Haller and Wood to Duke, and it is admitted in the answer of Wood and Talbott that it was the original intent to so place the building as to give room about it; the rights of Wood and Talbott are no higher or better as against either Warner or Grayson than Haller's from the facts presented in this

case.

3. Was the decree right in ordering the sale of the property in its entirety in the discretion of the trustees? Sales are thus ordered in entirety when the interests of the mortgagors and incumbrancers require it. Shepherd v. Pepper, 133 U. S. 626, 651, and the authorities there cited. In this case counsel for the Grayson trust states in his brief that he does not insist upon such sale as an entirety, and in the draft of a decree, as submitted by him, no such sale is provided for. In the view we have taken of this case we cannot see that the first incumbrance, the Warner trust, requires such a sale to protect that interest. There is no dispute as to the lien of the McReynolds trust upon the property described in their deed; as against it no casement is claimed. We see no reason why, with adequate protection for the McReynolds trust, in a sum to be found sufficient in the court executing the decree, to be retained out of the purchase money of the flats property with an easement in the ten-foot strip, the flats may not be sold with the ten-foot strip as one piece and the remainder of the property as another. Such a form of decree is suggestel in the brief of the counsel for the Grayson trust, and no incumbrancer seems to object to it, and the holders of the equity of redemption insist upon a separate sale. We think it would be the fairer way to all concerned to order the sale of the property as herein inclicated.

We, therefore, upon the whole case modify the decree of the Court of Appeals in respect to the Warner trust and the tenfoot strip, and as to the sale of the property as an entirety, as

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hereinbefore stated. . In other respects the judgment of the Court of Appeals is

Affirmed. This disposes of the appeals in Nos. 89 and 90, which were taken from the last and final decree in the Court of Appeals.. The appeal in No. 439 was taken from the decree of the Court of Appeals remanding the case to the Supreme Court, which was not final, and is therefore dismissed. The other appeals raise all the questions made in the case.

GUNTER, ATTORNEY GENERAL OF THE STATE OF

SOUTH CAROLINA, v. ATLANTIC COAST LINE)RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE DISTRICT OF SOUTH CAROLINA.

No. 88. Argued December 1, 4, 1905.-Decided January 15, 1906.

A suit against state officers to enjoin them from enforcing a tax alleged to

be in violation of the Constitution of the United States is not a suit against

a State within the prohibition of the Eleventh Amendment. While a State may not, without its consent, be sued in a Circuit Court of

the United States, such immunity may be waived; and if it voluntarily becomes a party to a cause and submits its rights for judicial determina

tion it will be bound thereby. An appearance “for and on behalf of the State" by the Attorney General,

pursuant to statutory provisions, in an action brought against county• officers, but affecting state revenues, in this case amounted to a a waiver by the State of its immunity from suit; and such immunity could not be invoked in an ancillary suit subsequently brought against the succes

sors of the original defendants to enforce the decree. A decree of the Circuit Court of the United States, having jurisdiction of

the cause and in which the State appeared, that a charter exemption existed in favor of a railroad company by virtue of a contract within the meaning of the impairment of obligation clause of the Federal Constitution is binding upon the State as to the existence and effect of the contract during the period of exemption, and the rule that a decree enjoining the collection of a tax is not res judicata as to the right to collect for a

subsequent ye:ur does not apply. Neither the Eleventh Amendment nor 8 720, Rev. Stat. control a court of

VOL. CC—15

Argument for Plaintiff in Error.

200 U.S.

the United States in administering relief where it is acting in a matter ancillary to a decree rendered in a cause over which it had jurisdiction; nor is a Circuit Court debarred from enforcing its decree by ancillary suit in equity restraining improper prosecutions of actions in the state courts because there is an adequate remedy at law by interposing defenses in

those actions. The rule that the collection of a tax should not be enjoined unless the

amount admitted to be due is tendered does not apply where the amount due is for a period not covered by the injunction or affected by the decree. The facts are stated in the opinion.

Mr. W. F. Stevenson for plaintiff in error:

Conferring the powers, rights and privileges of the Northeastern Railroad Co., upon the Cheraw and Darlington Railroad Co. did not confer an exemption from taxation enjoyed by the former on the latter. Phænix Ins. Co. v. Tennessee, 161 U. S. 171, and cases cited; Tucker v. Ferguson, 22 Wall. 527.

The consideration for the alleged contract, to wit, the building of the road in pursuance of the same, being now admitted to be a myth, the exemption if granted, was a gratuity and was repealed by the constitution of 1868, and as only litigated questions are res judicata in a subsequent suit on the new cause of action, and as the consideration of the contract and its existence was not contested in the Pegues case, we are at liberty to make these questions. There can be no contract without a consideration and in this case there was no consideration. See Cooley Const. Lim. $ 149, 335; Wisconsin R. R. Co. v. Supervisors, 93 U. S. 595; Newton v. Commissioners, 100 U. S. 548.

If there was an exemption it was a mere gratuity which could be revoked at any time. Section 1, art. ix and $ 2, art. xii, Const. 1868, S. Car.; Tomlinson v. Jessup, 15 Wall. 454.

As to res adjudicata, Humphrey v. Pegues, 16 Wall. 244, decided only one question, that the act conferred all privileges held by the Northeastern under the acts of 1851 and 1855.

The questions in this case were not litigated. The road was not built pursuant to the exemption and therefore there was no contract and the exemption is repealable. The word "privileges” in a statute making another statute enforceable does not

200 U. 8.

Argument for Plaintiff in Error.

carry the exemption contained in that statute. Appellant is not estopped because they might have been litigated. This is a suit for taxes for different years from those involved in the Pegues case. Keokuk & W.R. Co. v. Missouri, 152 U. S. 301; Cromwell v. County of Sac, 94 U. S. 351; Louisville Railway v. Wilson, 138 U. S. 501; Wilmington R. R. Co. v. Alsbrook:, 146 U. S. 279; Nesbit 'v. Riverside, 144 U. S. 610; Willoughby v. Railroad Co., 52 S. Car. 172.

The rule in South Carolina is that the question must have been adjudicated in a former suit in order to estop-the parties from making it in the subsequent proceeding. Henderson v. Kenner, 1 Rich. Law, S. Car. 474; Hart v. Bates, 17 S. ('ar. 35; Jones V. Massey, 14 S. Car. 307; Duren v. Kee, 41 S. Car. 174; McMakin v. Fowler, 34 S. Car. 286.

The State cannot be estopped by a judgment against its officers or by any judgment where it has not voluntarily submitted to the jurisdiction as a result of legislative authority (except of course in an original proceccling in the l'nited States Supreme Court), and to hold that a juiłgment against two tax collectors represented by the Attorney General bound the State so that her attorneys could not be allowed to contend in court for her rights, would be subjecting every State to the process of every court which could get personal juris liction of her officers as effectually as if she could be suel in her own name. Amendment XI, Const. l'. S.

If Pegues indirectly sued the State, the court was without: jurisdiction and the judgment was no estoppel. ' Anderson v. Care, 19 S. Car. 505. If the State was in privity with the defendant and he was the State's agent, it was an attempt to do inclirectly what could not be done directly. A judgment against the agent of : State is not an estoppel as to the sovereign. United States v. ('larke, S Pet. 414; The Siren, 7 Wall. 152; The Davis, 10 Wall. 15: Carr v. United States, 98.l'. s. 433; Tindal v. Il'esley, 167 l. 5. 201.

As to the power of the Attorney General to waive anything for the State, see Commissions l'ose, 1 Des. 461.

Argument for Plaintiff in Error.

200 U. 8.

The Attorney General claimed no right to waive the State's rights nor did the legislature accord him that right or ratify his acts.

There is plain and adequate remedy at law. If the plea of former adjudication is good, it can be set up as a defense and fully availed of and the court of equity could not interfere. Scottish & U. N. Ins. Co. v. Bowland, 196 U. S. 611, and cases cited; Pennoyer v. McCannaughy, 140 U. S. 1.

As to the rule that the immunity of a State from suit is so absolute and unqualified that its officers cannot be sued, see Re Ayers, 123 U. S. 443; State v. Jumel, 107 U. S. 711; Antoni v. Greenhow, 107 U. S. 769; Cunningham v. Railroad Co., 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; Osborn v. Bank, 9 Wheat. 738; Davis v, Gray, 16 Wall. 203; Tomlinson v. Branch, 15.Wall. 460; Littlefield v. Webster Co., 101 U. S. 773; Allen v. Railroad Co., 114 U. S. 311; Board v. McComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270.

When the lega) remedy is plain and adequate, no injunction will be to prevent tha collection of taxes. We cite the following on this point: United States v. Rickert, 188 U. S. 432; Indiana Mfg. Co. v. Koehne, 188 U. S. 681; People's Nat. Bank v. Marye, 107 Fed. Rep. 570; Douglas v. Stone, 110 Fed. Rep. 812..

As it is admitted that some of the taxes sued for are due, no injunction can lie in the case, the part that is due not having been tendered. Carrington v. First Nat. Bank, 103 Fed. Rep. 524; West. Un. Tel. Co. v. Missouri, 190 U. S. 412.

Appellants are merely attorneys for the State, without any personal interest in the cause and without any intention of committing any trespass upon the property or rights of the petitioner, merely prosecuting a suit at law to recover a debt alleged to be due the State, in which suit all the defenses set up here by the petitioner may and have been set up. To enjoin all the State's counsel from prosecuting her suit is to enjoin the State from so doing, which a court has no power to do. Chandler v. Dix, 194 U. S. 590; International Postal Supply Co. V: Bruce, 194 U. S. 601; $ 720, Rev. Stat.;. Diggs v. Wal

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