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. CT. 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."

The only comment made in the Arlington Case upon this language was, "that though not prepared to say now that the 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; [S. C. 2 SUP. CT. REP. 128.] 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 any 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 tax

ation 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 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.

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 sued." 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.