Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/472

 § 462.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. the citizens as against each other, but also upon rights in con- troversy between them and the government." ' Justice Gray (with whom concurred Justices Waite, Brad- ley, and Woods) dissented, saying : " The sovereign is not lia- ble to be sued in any judicial tribunal without its consent. The sovereign cannot hold property except by agents. To main- tain an action for the recovery of the possession of property held by the sovereign through its agents, not claiming any right or title in themselves, but only as the representatives of the sovereign and in its behalf, is to maintain an action to re- cover possession of the property against the sovereign ; and to invade such possession of the agents, by execution or other judicial process, is to invade the possession of the sovereign, and to disregard the fundamental maxim that the sovereign cannot be sued." 2 " The view in which this court appears con- stantly to have acted, which reconciles all its decisions, and is in accordance with the English authorities, is this : the objec- tion to the exercise of jurisdiction over the sovereign or his property, in an action in which he is not a party to the record, is in the nature of a personal objection, which, if not suggested by the sovereign, may be presumed not to be intended to be insisted upon. ... If property is in the possession of the defendants and not of the sovereign, an informal suggestion that it belongs to the sovereign will not defeat the action. But if the sovereign in proper form, and by sufficient proof, makes known to the court that he insists upon his exemption from suit, and that the property sued for is held by the nom- inal defendants exclusively for him and in his behalf as public property, the right of the plaintiff to prosecute the suit, and the authority of the court to exercise jurisdiction over it cease, and all further proceedings must be stayed." 3 The reasoning in this case applies to suits brought against state officers. In a still later case, however, the Supreme Court held that the creditors of a state, although their rights against it were secured by a clear contract, could not compel state officers to carry out the provisions of a statute, securing the rights of creditors, when the state, by an amendment to its constitution, 1 106 U. S. 220. 3 106 U. S. 249. 2 106 U. S. 226. 452