Cornell v. Green/Dissent Brown

Mr. Justice BROWN, dissenting.

Had Tucker not been made a party to the bill at all, and the court had attempted to dispose of his rights to the land in question upon the sale under the foreclosure proceedings, there could be no doubt that it would be treated as an attempt to deprive him of his property without due process of law, and that such sale would have been invalid, as against him, his heirs or vendees, under the fourteenth amendment.

This is, in substance, exactly what is claimed in his case. The bill averred broadly that he was not made a party at all; but the court, putting its own construction upon the foreclosure proceedings, which were made an exhibit to the original bill, decided that he was. Whether he was bound individually by the proceedings against him in his representative capacity,-in other words, whether he individually was a party defendant to the bill, is beside the question. It is sufficient that he is averred not to have been, that a construction of the constitution was necessarily involved, and that the position of the plaintiff, in that connection, is not a frivolous one, or wholly destitute of foundation. Insurance Co. v. Needles, 113 U.S. 574, 5 Sup. Ct. 681.

That it requires us to put a construction upon the pleadings in the foreclosure suit does not militate against this position, as we have repeatedly held in analogous cases, where a contract is claimed to have been impaired by state legislation, that we would put our own construction upon such contract, and then inquire whether it had been impaired. Bank v. Skelly, 1 Black, 436, 443; New Orleans Waterworks Co. v. Louisiana Sugar-Refining Co., 125 U.S. 18, 38, 8 Sup. Ct. 741; Railroad Co. v. Alsbrook, 146 U.S. 279, 293, 13 Sup. Ct. 72; Mobile & O. R. Co. v. Tennessee, 153 U.S. 486, 492, 14 Sup. Ct. 968.

It seems to me this case should have been determined upon its merits, and I therefore dissent from the opinion of the court.