Dissenting Opinion: Harlan, Brewer, JJ.

jurisdiction cannot be invoked in any mode for its final settlement if it appears in evidence that some individual or corporation is interested in that settlement. Still more, although this court is given original jurisdiction of a case between one of the States of the Union and a foreign State, it will not exercise it even in such a case if individual parties are interested in the controversy.

As the presence in a case arising under the Constitution, or the laws, or the treaties of the United States, of a question or controversy depending upon general principles of law, will not oust the jurisdiction of the courts as conferred by the Constitution, Osborn v. Bank of the United States, 9 Wheat. 738, so the presence, in a case brought by a State against a citizen of another State, of a question or controversy in which others, besides the parties of record, are interested, ought not to oust the jurisdiction of the court to determine the controversy between the original parties; especially where the decree between the parties of record will not, in law, conclude, or is so framed that it will not conclude, the rights of others who were not, in some form, before the court.

Under the ruling now made, how is the State of California to obtain a judicial determination of the controversy between it and this foreign corporation? It is said that a suit may be brought in one of its own courts against all persons asserting an interest in the property rights here in question. The effectiveness of such a suit would depend upon the ability of the State to bring the Kentucky corporation into court, so that it would be bound by the final decree. It may be that that corporation does business in California under the condition, among others, that it will have an agent there upon whom process can be served. But surely the duty of this court, under the Constitution, to exercise its original jurisdiction in respect to a controversy between a State and a corporation of another State cannot depend upon the question whether the plaintiff State can compel that corporation to answer in its own courts. Suppose the defendant is an individual citizen of another State who cannot be served with process in the State desiring to bring suit against him. In

Syllabus.

such a case, the State must, under the principles now announced, be without a remedy for the protection of its rights, or it will be driven to sue its adversary in the courts of his own State, whose decision will be final, unless the controversy happens to involve some question of a Federal nature; and even then this court could only decide the Federal question presented, and must accept the decree of the state court as conclusive upon all other questions. The State could not sue in any Circuit Court of the United States, for that court has no jurisdiction under the acts of Congress of a suit brought by a State against a citizen of another State, unless perhaps such suit be one arising under the Constitution or laws or treaties of the United States. The framers of the Constitution did not intend to subject a State, under any circumstances, to the indignity of being compelled to submit its controversies with citizens of other States to the courts of such other States. They opened the doors of this court to every State having a cause of action against a citizen of another State. In my judgment, we have no right to refuse a hearing to a State having such a cause of action, because of the circumstance that one or more of its people assert an interest in the subject-matter of its controversy with the defendant citizen of another State.

For these reasons, I am constrained to dissent from the opinion and judgment of the court.

MR. JUSTICE BREWER authorizes me to say that he concurs in this opinion.

WAILES v. SMITH.

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.

No. $72. Submitted March 4, 1895. - Decided March 25, 1895.

The finding of the Maryland Court of Appeals, that there was no fund in the state treasury upon which the Comptroller could lawfully draw his warrant, because there had been no appropriation made by the state legislature for the payment of the commissions here claimed, was decisive of this case, and involved no Federal question.

Statement of the Case.

MOTION to dismiss. In 1872 the General Assembly of Maryland passed an act to ratify and confirm the Governor's appointment of Daniel Clarke and Sidney I. Wailes, as commissioners on behalf of the State, to prosecute to settlement all her claims against the government of the United States under the act of Congress approved July 27, 1861, which provided for the payment by the Federal government to the Governor of any State, etc., of any expenses properly incurred by the State for enrolling, equipping, etc., and transporting its troops employed in aiding to suppress "the present insurrection against the United States, to be settled upon proper voucher," etc. Laws of 1872, c. 262, p. 434.

In 1878 the General Assembly repealed the act of 1872, and enacted as follows: "That Sidney I. Wailes, the surviving commissioner of the State of Maryland under said act [the repealed act of 1872], be and he is hereby authorized to prosecute the settlement of all claims of the State against the government of the United States, and he is hereby allowed a commission of thirty per cent upon any sum that shall be recovered by him and paid by the government of the United States into the treasury of the State of Maryland, as full compensation for his services and expenses in the prosecution of said claims of said State against the United States, it being the intent and meaning of this General Assembly that said commissioner shall not claim or receive any other or further compensation for his services rendered or to be rendered and expenses incurred, or to be incurred in the prosecution of said claims, except the commission contingent upon his success, and hereinbefore allowed him on such amount as may be recovered by him as aforesaid, and paid into the treasury of said State." The third section of the act directed the Comptroller of the Treasury "to issue his warrant to pay said Wailes a commission of thirty per cent on such sum as shall be recovered by him and paid by the government of the United States into the treasury of said State upon said claims, and that said commissions shall be payable upon the several amounts received on said claims as they are paid into the treasury." Laws of Maryland, 1878, c. 224, p. 359.

Statement of the Case.

In 1891 the amounts which had been collected from the several States and Territories and the District of Columbia by the Federal government under what was known as "the Direct Tax Act of 1861" were refunded. The act of Congress authorizing this refunding contained the proviso "that no part of the money hereby appropriated shall be paid out by the government of any State or Territory, or any other person, to any attorney, or agent under any contract for services now existing or heretofore made between the representative of any State or Territory and an attorney or agent." The act moreover provided that none of the moneys directed to be paid to any State or Territory should be so paid "until the legislature thereof shall have accepted by resolution the sum herein appropriated and the trusts imposed, in full satisfaction of all claims against the United States on account of the levy and collection of said tax, and shall have authorized the government to receive said money for the use and purposes aforesaid." Act of March 2, 1891, c. 496, 26 Stat. 822.

The General Assembly of Maryland accepted these terms and provisions, and $371,299.83 were paid to the State by the Federal government. Subsequently thereunder the General Assembly directed that $202,645.71 of the amount thus received should be applied to the payment of the state debt, and that the balance should be invested for the benefit of the sinking fund.

The plaintiff in error began proceedings by petition for mandamus against the defendant, Comptroller of the State, to compel him to draw a warrant on the Treasurer in his favor for the payment of $111,389.94, being 30 per cent on the $371,299.83, which had been paid to the State by the Federal government. The petition was dismissed, and an appeal was taken to the Court of Appeals of Maryland. In that court (at the October term, 1892) the judgment below was affirmed. Wailes v. Smith, 76 Maryland, 469, 475.

The Court of Appeals rested its conclusion upon the following grounds:

(1) That the duties imposed on the Comptroller by the act upon which the plaintiff relied involved discretion and judg

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Statement of the Case.

ment, and, therefore, their performance could not be compelled by mandamus.

(2) That under the Constitution of the State no money could be drawn from the treasury without a specific appropriation, and the Comptroller could not be compelled by mandamus to draw a warrant on the Treasurer where, as in this case, there was no appropriation.

(3) That the act under which the plaintiff had been employed did not undertake to authorize the Comptroller to draw a warrant for the compensation therein provided for without a previous appropriation, and that no appropriation therefor was made by the act itself.

(4) That even if the contract provided for the deduction, without appropriation, of the stipulated compensation from the amount collected, the deduction could not have been made from the money refunded, as it had been appropriated by Congress and received by the State upon the express condition that no such deduction should be made.

(5) That the contract did not contemplate a commission on the amount of the direct tax refunded, but only on claims held by the State against the United States, which were specifically referred to in the contract of 1872. That inasmuch as the direct tax had been lawfully assessed and paid, the State had no claim against the United States for the amount collected, at the time when the contract was made, and therefore there could have been no reference to that amount in the contract.

The plaintiff brought the case here by writ of error. The defendant in error, by the Attorney General of the State, moved to dismiss, not only because of want of jurisdiction apparent on the face of the record, but also because of the following facts, which, it is asserted, have occurred since the writ of error was allowed: In 1894 the General Assembly of Maryland directed the Comptroller to draw his warrant or warrants upon the treasury for the sum of $20,000 in favor of plaintiff in error, "in compensation for effective services. rendered by him in securing the refund by the United States. of the sum of $371,299.83, that being the quota of this State for the direct tax paid by the State of Maryland, in pursuance