Page:Howell v. Miller.pdf/7

Rh It thus appears that the supreme court, in Belknap v. Schild, proceeded in its judgment upon the ground that the caisson gate used at the navy yard of the United States under the supervision of the officers of the government, had become its property, and that such use could not be enjoined, because an injunction could not operate directly upon the government’s use of its own property, when it was not a party to the suit, and could not, without its consent, be sued.

In the more recent case of Tindal v. Wesley, 167 U. S. 204, 221, 17 Sup. Ct. 770, the general subject of suits against the government or against a state was again under consideration. That was an action of ejectment by a citizen of New York in the circuit court of the United States sitting in South Carolina against certain persons for the possession of real property, which was held by the defendants only in their capacity as officers of the state. The defendants insisted that within the meaning of the constitution of the United States the suit was one against the state of South Carolina. But the court rejected that view, and held that the plaintiff was not to be debarred from an adjudication of his claim to the real estate in question, and from a judgment for its possession as against the defendants, simply because such defendants asserted that the property belonged to the state. The court said:

“The settled doctrine of this court wholly precludes the idea that a suit against individuals to recover possession of real property is a suit against the state, simply because the defendant holding possession happens to be an officer of the state, and asserts that he is lawfully in possession on its behalf. We may repeat here what was said by Chief Justice Marshall, delivering the unanimous judgment of this court in U. S. v. Peters, 5 Cranch, 115, 139: ‘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 their looking into the suggestion, and examining the validity of the title.’ Whether the one or the other party is entitled in law to possession is a judicial, not an executive or legislative, question. It does not cease to be a judicial question because the defendant claims that the right of possession is in the government, of which he is an officer or agent. The case here is not one in which judgment is asked against the defendants as officers of the state, nor one in which the plaintiff seeks to compel the specific performance by the state of any contract alleged to have been made by it, nor to enforce the discharge by the defendants of any specific duty enjoined by the state. Nor is it one, like Cunningham v. Railroad Co., 109 U. S. 446, 452, 3 Sup. Ct. 292, 609, above cited, in which the plaintiff seeks to enforce a lien upon real estate in the actual possession of and claimed by the state, where a decree of sale would be fruitless, as no title could be given to the purchaser without the presence of the state as a party to the proceeding. It is a suit against individuals,—a case in which the plaintiff seeks merely the possession of certain real estate once belonging to the state, but which the complaint alleges has become his property, and which, according to the verdict of the jury and the judgment of the court thereon, must, on this record, be taken to belong absolutely to him. The withholding of such possession by defendants is consequently a wrong, but a wrong which, according to the view of counsel, cannot be remedied if the defendants choose to assert that the state, by them as its agents, is in rightful possession. The doors of the courts of justice are thus closed against one legally entitled to possession, by the mere assertion of the defendants that they are entitled to possession for the state. But the eleventh amendment gives no immunity to officers or agents of a state in withholding the property of a citizen without authority of law. And when such officers or agents assert that they are in rightful possession, they must make good that assertion when it is made to appear in a suit against them as individuals that the legal title and right of