David Josiah Brewer

“ Equity is satisfied by a decree for a foreclosure and sale of the mortgaged property, leaving the question of a judgment over for any deficiency to be determined when, if ever, it arises. And surely if, as we have often held, this court has jurisdiction of an action by one state against another to recover a tract of land, there would seem to be no doubt of the jurisdiction of one to enforce the delivery of personal property. ”

“ I do not perceive, if one state may not engender a controversy between states, in the constitutional sense, in respect to claims arising out of dealings between a state and individuals, how it was competent for the state of South Dakota to create such a controversy by the acquisition of a claim of the class whose enforcement it was the purpose of the 11th Amendment to effectually prohibit. ”

“ The proceeding is a suit against the party to obtain, by decree of court, the benefit of the mortgage right. But where the mortgagor in possession is a sovereign state, no such proceeding can be maintained. The mortgagee's right against the state may be just as good and valid, in a moral point of view, as if it were against an individual. But the state cannot be brought into court or sued by a private party without its consent. It was at first held by this court that, under the Constitution of the United States, a state might be sued in it by a citizen of another state, or of a foreign state ”

“ A court of equity, when its aid is invoked to give particular relief, if it finds that it is unable to do it, ought not, whilst denying such relief, to enter a decree which confers no substantial relief, but, on the contrary, can only serve as a fruitful source of future litigation, injurious to the rights of the very party or class of persons in whose favor the decree is rendered. ”

“ Louisiana, the court quoted approvingly the following passage from the opinion in Hans v. Louisiana:
'It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they applied equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a state. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. ”

“ I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all the others, and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. ”

“ His language may amount to a parol mortgage, if such a mortgage can be created; but that is all. So, in this case, the pledge given by the state in a statute may have amounted to a mortgage, but it could amount to nothing more; and if a mortgage, it did not place the mortgagee in possession, but gave him merely a naked right to have the property appropriated and applied to the payment of his debt. But how is that right to be asserted? If the mortgagor be a private person, the mortgagee may cite him into court and have a decree for the foreclosure and sale of the property. ”

“ This, after all, only serves additionally to demonstrate the fallacy underlying the assumption that the state of South Dakota, because it is a state and may avail of the grant of judicial power over controversies between states, can, in doing so, escape the prohibition of the 11th Amendment, created for the very purpose of protecting the states and preserving their independent control over their own affairs. It seems to me the gross inequality which must arise from disregarding the judgment of the tribunal selected by the creditor is well illustrated by this case. ”

“ If any particular shares, then, unless the rights of the prior lienholders are to be rendered divisible, although they are indivisible, the shares sold must continue to be subject to the entire pledge in favor of all the bonds issued in aid of the North Carolina Railroad. To state this situation, it seems to me, is to demonstrate that the decree will afford no substantial relief whatever. The best that can be said, under such circumstances, is that the effect of a sale so made will be merely to foment a law suit. ”

“ Apparently, one expectation of the donor to South Dakota was that in some way the bonds retained by himself would be placed in judgment, and relief obtained against North Carolina in the suit commenced by South Dakota. But we think that these individuals are not necessary parties-defendant, and that no relief should be given to them or to the classes of bondholders they represent. The statute under which the mortgage was executed provided that with each of the bonds a deed of mortgage for a like amount of stock should be executed by the state. ”

“ As a rule, no such municipality has any private property subject to be taken upon execution. A levy of taxes is not within the scope of the judicial power except as it commands an inferior municipality to execute the power granted by the legislature.
In Rees v. Watertown, 19 Wall. 107, 116, 117, 22 L. ed. 72, 75, we said:
'We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only ”

“ It is true that the gift may be considered a rare and unexpected one. Apparently the statute of South Dakota was passed in view of the expected gift, and probably the donor made the gift under a not unreasonable expectation that South Dakota would bring an action against North Carolina to enforce these bonds, and that such action might enure to his benefit as the owner of other like bonds. But the motive with which a gift is made, whether good or bad, does not affect its validity or the question of jurisdiction. ”

“ He will occupy the same position in relation to the corporate property that other stockholders occupy, and have whatever rights they have. It is not necessary for a full satisfaction of the mortgage on one of these bonds that any other mortgage upon another bond be also foreclosed, or that a decree be entered determining what rights the purchaser will have by virtue of the stock which he obtains at the sale. So far, then, as these individual defendants are concerned, the suit will be dismissed, with costs against South Dakota. ”

“ To hold that there is a right to recover in this case which would not exist if there had been a statute of limitations barring the cause of action, although none had ever arisen, is but to say that the right of the parties is to be determined by words having no significance whatever. ”

“ Rep. 488. . . . There must be judgment overruling the demurrer, but as the defendant may desire to set up facts which it might claim would be a defense to the complainant's bill, we grant leave to the defendant to answer up to the first day of the next term of this court. In case it refuses to plead further, the judgment will be in favor of the United States for an accounting for the payment of the sum found due thereon.'
We are not unmindful of the fact that in Hans v. Louisiana, 134 U.S. 1, 33 L. ed. ”

“ On demurrer to a plea of the statute of limitations it was contended that the right of the Crown was not barred by the statute,-by a plea which, in point of fact, admitted the debt. The court held otherwise. Lord Chief Baron Richards observed (p. 28) :
'The Crown is only entitled to its debtor's right, and cannot create or revive any right in the person of its debtor if none ever existed, or it has become extinct. In this case, nothing could have been recovered by the debtor of the Crown against this defendant if the statute had been pleaded ”

“ The public property held by any municipality, city, county, or state is exempt from seizure upon execution, because it is held by such corporation, not as a part of its private assets, but as a trustee for public purposes. ”

“ It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a state in the exercise of this authority, at once so delicate and so important.'
See also Heine v. ”

“ It is true that the greater number of cases decided by this court concerning the right to enforce a private claim against a state concerned controversies where suit was brought by citizens of other states or aliens, who were therefore persons expressly within the terms of the 11th Amendment. ”

“ It is insisted that these individuals, owners of the bonds, although named as defendants, are in fact occupying an adverse position to that of the state, and that the effect of their presence as parties is a practical nullification of the 11th Amendment, in that it is giving to individuals relief by judgment against the state. ”

“ The mortgagor, or his assignee, would be a necessary party in such a proceeding. Even when absent, beyond the reach of process, he must still be made a party and at least constructively cited, by publication or otherwise. ”