Where the United States, as endorsees of a promissory note,
recovered judgment against the makers thereof, who thereupon filed
a bill upon the equity side of the court and obtained an injunction
to stay proceedings, this injunction was improvidently allowed.
The United States were made directly parties defendants; process
was prayed immediately against them, and they were called upon to
answer the several allegations in the bill.
This course of proceeding falls within the principle that the
government is not liable to be sued, except by its own consent,
given by law.
The bill must therefore be dismissed.
This was a bill filed on the equity side of the court by Hill
and the other complainants against the United States, the
Mississippi & Alabama Railroad Company, William M. Gwin, and
William H. Shelton, to enjoin a judgment obtained against the
complainants by the United States.
The circumstances were these.
In 1835, the receiver of public moneys for the Choctaw District
in the State of Mississippi was found to be in debt to the
government.
On the 26th of September, 1835, the Solicitor of the Treasury
issued a distress warrant, under the Act of May, 1820, for the
purpose of collecting the debt, and enclosed it to William M. Gwin,
then Marshal of the United States for the State of Mississippi.
The history of the transaction between 1835 and 1839 need not be
stated.
In 1839, the marshal, by direction of the Solicitor and
Secretary of the Treasury, received from the representative of the
debtor (who was then dead) the sum of $30,000 in the notes of the
Mississippi & Alabama Railroad Company as collateral security
for the debt, for the collection of which he had a distress
warrant. The Railroad Company, in order to avoid a suit upon its
notes, transferred to the district attorney upwards of $78,000 of
bills receivable of the bank. Amongst these bills receivable was a
promissory note for four thousand dollars dated on 12 April, 1838,
payable six months after date to the Mississippi & Alabama
Railroad Company, negotiable and payable at their banking house in
Brandon, and signed by William J. Hill J. S. Rowland, D. M. Porter
and W. F. Walker. The note was joint and several; Hill was the
principal, and the others sureties.
Page 50 U. S. 387
On 15 June, 1839, the district attorney brought suit upon the
note in the name of the United States against all the parties, and
at November term obtained judgment.
In January, 1840, a
fi. fa. was issued, an in May,
1840, Hill Porter and Walker filed a bill on the equity side of the
court against the United States, the Mississippi & Alabama
Railroad Company, William M. Gwin, and William H. Shelton, setting
up certain equities, which need not be here particularly stated,
and praying for an injunction, which was granted.
All the parties answered, the district attorney answering on
behalf of the United States.
In May, 1846, the cause was set down for hearing upon the bill,
answers, and exhibits.
In November, 1846, the following proceedings took place.
The United States, by attorney, made the following motion,
to-wit:
"Motion by R. M. Gaines, U.S. Attorney, to dissolve the
injunction and dismiss the bill, as to the United States, for want
of jurisdiction as to them, and also on the merits."
"R. M. GAINES, U.S.
Att'y"
"And afterwards, to-wit, at the May term, A.D. 1847, of said
court, to-wit, on 20 May in the year of our Lord 1847, this cause
came on to be heard before the Honorable Peter V. Daniel and Samuel
J. Gholson upon the motion of the United States of America to
dismiss this suit as to them, and dissolve the injunction for want
of jurisdiction, and was argued by counsel. And the court having
taken time to consider, and not being able to agree in opinion what
decree should be made in the cause on said motion, one of the
judges being of opinion that the said motion should be sustained
and the said bill dismissed and injunction dissolved and the other
being of opinion that the said motion should be overruled, it is
therefore ordered, at the request of the counsel for both
complainants and defendants, that said difference of opinion be
certified to the Supreme Court of the United States for their
decision whether the said motion should be sustained or
overruled."
"P. V. DANIEL"
"S. J. GHOLSON"
Upon this certificate the case accordingly came up.
Page 50 U. S. 388
MR. JUSTICE DANIEL delivered the opinion of the Court.
The United States, as the endorsees of the Mississippi &
Alabama Railroad Company, instituted an action of assumpsit in the
court above mentioned, on a promissory note given by William J.
Hill J. S. Rowland, D. M. Porter and W. F. Walker to the said
railroad company for the sum of four thousand dollars. At the
November term of the court in 1839, the United States, upon a trial
at law upon issues joined, first, upon the plea of nonassumpsit,
and secondly, upon the plea of payment of the note before its
endorsement and delivery to the plaintiffs, obtained a verdict and
judgment in damages for the sum of $4,353.32. Upon the suing out of
an execution on this judgment, the defendants filed a bill on the
equity side of the circuit court, and obtained from the district
Judge an injunction upon grounds which perhaps might, under the
pleadings in the cause, have been as regularly insisted upon at
law, between the proper parties, as they could be in equity, but
whether forming a well founded defense at law or not is immaterial
in the inquiry now presented. In the bill filed by Hill and others,
the United States are made directly parties defendants; process is
prayed immediately against them; they are called upon to answer the
several allegations in the bill, and a perpetual injunction is
prayed for to the judgment obtained by them. To the bill of the
complainants the attorney for the United States filed in their
behalf an answer
in extenso, but afterwards moved the
court to dissolve the injunction and dismiss the bill as to the
United States, for want of jurisdiction as to them, upon which
motion the order and certificate now before this Court were made in
the following terms:
"And afterwards, to-wit, at the May term of said court,
viz., on 20 May, A.D. 1847, this cause came on to be heard
before the Hon. Peter V. Daniel and Samuel J. Gholson upon the
motion of the United States of America to dismiss this suit as to
them and dissolve the injunction for want of jurisdiction, and was
argued by counsel. And the court having taken time to consider, and
not being able to agree in opinion what decree
Page 50 U. S. 389
should be made in the cause on said motion, one of the judges
being of opinion that the said motion should be sustained and the
said bill dismissed and injunction dissolved and the other being of
opinion that the said motion should be overruled, it is therefore
ordered, at the request of the counsel for both complainants and
defendants, that said difference of opinion be certified to the
Supreme Court of the United States for their decision whether the
said motion should be sustained or overruled."
The question here propounded, without any necessity for
recurrence to particular examples, would seem to meet its solution
in the regular and best-settled principles of public law. No maxim
is thought to be better established or more universally assented to
than that which ordains that a sovereign, or a government
representing the sovereign, cannot
ex delicto be amenable
to its own creatures or agents employed under its own authority for
the fulfillment merely of its own legitimate ends. A departure from
this maxim can be sustained only upon the ground of permission on
the part of the sovereign or the government expressly declared, and
an attempt to overrule or to impair it on a foundation
independently of such permission must involve an inconsistency and
confusion, both in theory and practice, subversive of regulated
order or power. Upon the principle here stated it has been that, in
cases of private grievance proceeding from the Crown, the petition
of right in England has been the nearest approach to an adversary
position to the government that has been tolerated, and upon the
same principle it is that in our own country, in instances of
imperfect land titles, special legislation has been adopted to
permit the jurisdiction of the courts upon the rights of the
government. Without dilating upon the propriety or necessity of the
principle here stated or seeking to multiply examples of its
enforcement, we content ourselves with referring to a single and
recent case in this Court which appears to cover the one now before
us in all its features. We allude to the case of
United
States v. McLemore, in 4 How. 286, where it is
broadly laid down as the law that a circuit court cannot entertain
a bill on the equity side of the court praying that the United
States may be perpetually enjoined from proceeding upon a judgment
obtained by them, as the government is not liable to be sued except
by its own consent given by law.
We therefore direct it to be certified to the Circuit Court
for the Southern District of Mississippi that the motion on behalf
of the United States in this cause should have been sustained, and
that the bill as to
Page 50 U. S. 390
the United States should be dismissed, as having been
improvidently allowed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and on the point or question on which the
judges of the said circuit court were opposed in opinion and which
was certified to this Court for its opinion, agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof it is the opinion of this Court
that the motion in behalf of the United States in this cause should
have been sustained and that the bill as to the United States
should be dismissed as having been improvidently allowed. Whereupon
it is now here ordered and decreed by this Court that it be so
certified to the said circuit court.
