Melville Fuller

“ We should remark, however, that from a very early period it has been held that even where the United States is not made technically a party under the authority of an act of congress, yet, where the property of the government is concerned, it is proper for the attorney for the United States to intervene by way of suggestion, and in such case, if the suit be not stayed altogether, the court will adjust its judgment according to the rights disclosed on the part of the government thus intervening. ”

“ In the case of a government, protest against the occupancy and application for redress in the proper quarter would seem to be quite as potential in destroying the presumption of the right to possession, or of the abandonment of his claim by another, when an action cannot be brought, as the action itself when it can. ”

“ Hoar, 2 Mason, 311, said: 'The true reason, indeed, why the law has determined that there can be no negligence or laches imputed to the crown, and therefore no delay should bar its right, (though sometimes asserted to be because the king is alwasy busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects,-1 Bl. Comm. 247,) is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss by the negligence of public officers. ”

“ Rep. 292, 609, it may be accepted as unquestioned that neither the United States nor a state can be sued as defendant in any court in his country without their consent, except in the limited class of cases in which a state may be made a party in this court by virtue of the original jurisdiction conferred by the constitution. Accordingly, whenever it can be clearly seen that a state is an indispensable party to enable a court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. ”

“ No question seems to have arisen in the state district court as to the authority of the district attorney to do this. The court ruled that the United States could not plead the statutes of limitation, and therefore struck those pleas out, but sustained the plea claiming an allowance for improvements, and rendered judgment in favor of the United States for the value thereof. ”

“ The alleged trespass was committed by the defendants as the servants of the United States, and by their command; yet, if they showed the requisite possession in themselves as individuals, though in fact for the United States, under whose authority they were acting, the defense was made out. Agents when treated as principals may rely upon the protection of the statute. ”

“ But in the desire to do that justice, which in many cases the courts can see will be defeated by an extreme extension of this principle, they have in some instances gone a long way in holding the state not to be a necessary party, though its interests may be more or less affected by the decision. ”