the remedy was judicially effective.1 This position is justified on the ground that the remedy given is purely a matter of grace.

It is different, however, where an effective remedy is in terms made part of a contract. Suppose, for instance, a State issued bonds containing a mortgage of certain property, and granting to the bondholders the right to sue for the enforcement of the mortgage. It would seem clear that the withdrawal of this right would be an unconstitutional impairment of the obligation of the contract, and that a federal court having jurisdiction ought to disregard the withdrawal and enforce the remedy. Yet, in Antoni v. Greenhow, it was evidently the opinion of Justice Matthews and the three justices concurring with him, that a State may withdraw a remedy against itself, even if it impairs the obligation of a contract. It was squarely stated by Justice Matthews in Ex parte Ayers. Such is, also, the logic of the decision in Louisiana v. Jumel. In my view, this is

clearly wrong.

3

1 The decisions in these cases did not involve a denial of this

position.

2 As in South Dakota v. N. Car., 192 U. S. 286.

3123 U. S. 443.

107 U. S. 711. See Part II, p. 71.

CHAPTER IV.

SCOPE OF THE DOCTRINE OF NON-SUABILITY-FORMS OF

ACTION.

Actions that are suits against the state.

2

The principle of immunity is not limited to any particular forms of action. It extends to actions in rem, as, for example, to enforce a lien against property of the state,1 or foreign attachment against such property, as well as to actions in personam. It prevents the attachment of funds in the hands of officers of the United States, due as wages to seamen, by creditors of the seamen.3

In the case of admiralty proceedings in rem, it is true, there has been some disposition to regard the exemption of government property as due, not to the immunity of the government from suit, but to the exemption from liens of certain classes of property of a public or religious character, and to restrict the exemption of government property to what is used for a public governmental purpose. This question, however, has been sufficiently discussed above;1 where is set out the better view that an admiralty proceeding in rem is simply a form of suit against the owner of the res.

In "The Davis," the principle of exemption of all property of the government was recognized without exception. The court was, however, led astray by United States v. Wilder, and by placing a false emphasis on the fact of possession. In United States v. Wilder, the United States

2

The great leading case is Briggs v. Light-boats, II Allen 157.

Nathan v. Va., 1 Dall. 77. (Common Pleas, Phila. Co., Pa.) Buchanan v. Alexander, 4 How. 20.

4 P. 13.

B 10 Wall. 15.

6

3 Sumner 308.

brought suit in trover for certain clothing, property of the United States, which was being held by a carrier for a lien for general average. Justice Story held that, where it was necessary for the United States to bring suit to recover the goods, the carrier might assert against the United States his right to retain the goods for the lien. In "The Davis," a cargo of cotton belonging to the United States became liable to a lien for salvage. It remained in the possession of the carrier, and was libelled along with the ship by the salvors. The supreme court held that the exemption of government property exists only where it would be necessary to take the property out of the possession of agents of the government, and that, since "The United States, without any violation of law by the marshal, was reduced to the necessity of becoming claimant and actor in the court to assert her claim to the cotton," under these circumstances, "it was the duty of the court to enforce the lien of the libellants for the salvage, before it restored the cotton to the custody of the officers of the government."

Now, the decision in United States v. Wilder, that one in possession of property of the government may assert his rights with respect thereto, was clearly correct. But one mode of asserting such rights, namely, by suit, is precluded by the immunity of the state from suit. Whether the government has possession or not certainly does not make the action more or less a suit against the state. In Young v. Steamship Scotia,' the judicial committee of the privy council flatly said, although obiter, that "the question of possession is immaterial." The decision, but not the opinion delivered by Justice Miller, in The Davis, may be sustained on the ground that the United States did not merely object to the libel, but became an active claimant of the goods; and that its claim was subject to the liens of other parties.2

The immunity of the state precludes not only suits directly against the state, but also suits, otherwise well brought between proper parties, towards which the state stands in such

189 L. T. 374.

See below, p. 42.

66

a relation as to be an indispensable party. There is a class of parties, called necessary parties, who ordinarily must be joined to a suit, but who, if to join them would defeat jurisdiction, may be dispensed with. Such is the position of joint makers of a promissory note. On the other hand, there 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." These are indispensable parties, without whom the court will not proceed with the case.

In Cunningham v. Macon and Brunswick Railroad Company, it was held that where the State was the holder of the legal title under a deed of trust to secure it on its endorsement of the bonds of a railroad company, it was an indispensable party to a suit against the railroad company to foreclose the mortgage of one issue of bonds.

In Christian v. Atlantic and North Carolina Railroad Company, a bill was brought against a railroad company to have certain shares of stock owned by the State, and dividends thereon, applied to State bonds issued in aid of the railroad, for which the State had pledged the stock. The bill was dismissed on the ground that the State was an indispensable party.*

A state may be a party to a suit not only in its own name, but also under other forms. Thus, in Smith v. Reeves," the State had allowed suit against itself in the form of an action against the State treasurer. In Gunter v. Atlantic Coast

1

1 Shield v. Barrow, 17 How. 130; quoted in Cunningham v. M. & B. R.R. CO. The doctrine of parties is best developed in the class of cases in which jurisdiction of the federal courts is dependent on diverse citizenship.

2 109 U. S. 446.

3

133 U. S. 233.

In Case v. Terrell, 11 Wall. 199, also, although the ground of dismissal was stated to be simply that the only substantial relief was against the United States, with respect to the decree against enforcement of the priority of the United States in the distribution of assets, the United States was in the position of indispensable party. * 178 U. S. 436.

Line Railroad Company,1 it was held that Humphrey v. Pegues2 was a form of action the State had allowed against itself. And, in Minnesota v. Hitchcock, jurisdiction of a suit against the secretary of the interior was sustained on the ground that it was a suit against the United States with its consent.

The court seems to have overlooked this obvious fact in Missouri, Kansas and Texas Railroad Company v. Missouri Railroad and Warehouse Commission. In that case, a petition for removal to the federal court, on the ground of diverse citizenship, of an action brought under a statute by the State railroad and warehouse commissioners for an injunction to compel obedience to an order, was denied by the State court on the ground that it was a suit by the State; the decision was reversed on writ of error by the supreme court. The court was evidently under the influence of Justice Brewer's queer idea that the governmental interest of a state in the enforcement of its laws is not such an interest as to make it a party to a suit. This idea was evolved to meet a conceived necessity of explaining a case like Reagan v. Farmers Loan and Trust Company, to enjoin suits to enforce rates, as not a suit against the State. But the proper explanation of such a case is not that the State has not sufficient interest to be a party," but that, despite such interest, the agents of a State may be restrained from violating constitutional rights. The idea of Justice Brewer is negatived by the everyday fact of criminal proceedings by the state to enforce its laws, and especially by such cases as In Re Debs, in which the state brings suit in equity to enforce its governmental rights and

1200 U. S. 273. 216 Wall. 244. 185 U. S. 373. 4183 U. S. 53.

Previously expressed by him in Reagan v. Farmers L. & T. Co., 154 U. S. 362.

For in Gunter v. Atl. Coast Line R.R. Co., 200 U. S. 273, the court held that the State was a party to a similar case—]

v. Pegues, 16 Wall. 244.

"Part II, Chaps. V, VI.

158 U. S. 564.

e-Humphrey