evidence, filed the following findings of fact, 1228, chap. 427), among other things, proand conclusion of law: vides: Findings of Fact. 1. The claimant, John M. Hite, was appointed assistant engineer in the United States Navy, with the relative rank of ensign, for temporary service during the late war with Spain, on May 14, 1898; he reported for duty on board the U. S. S. "Massachusetts," in obedience to orders of the Navy Department, on June 1, 1898, and served creditably as such officer on said ship until December 17, 1898, at which date he was detached and ordered to his home, and on December 22, 1898, was honorably discharged from the naval service. *"The officers and enlisted men comprising the temporary force of the Navy during the war with Spain, who served creditably beyond the limits of the United States, and who have been or may hereafter be discharged, shall be paid two months' extra pay; and all such officers and enlisted men of the Navy who have so served within the limits of the United States, and who have been or may hereafter be discharged, shall be paid one month's extra pay." Appellee's counsel say that the issue is correctly stated by counsel for the United States as follows: "The claimant contends that the two The order referred to is in the words months' extra pay provided for in the forefollowing: "Navy Department, "Washington, D. C., Dec. 12, 1898. "Sir: "You are hereby detached from duty on board the U. S. S. "Massachusetts," and will proceed to your home. "Immediately upon your arrival report your local address in full to the Bureau of Navigation, Navy Department, Washington, D. C. See article 224, U. S. Navy Regulations, 1896. "Report also the date of your detachment, and inform the Department of the status of your accounts, and whether you are indebted to the government by reason of advances drawn by you. "Respectfully, "John D. Long, Secretary. "Assistant Engineer John M. Hite, U. S. N., "U. S. S. Massachusetts." 2. The U. S. S. "Massachusetts" was in commission and cruised beyond the limits of the United States (in Cuban waters) during the time of the claimant's service on board. 3. In settlement of claimant's claim for extra pay authorized by the act of March 3, 1899 [30 Stat. at L. 1214, chap. 427], he was allowed by the accounting officers of the Treasury Department two months' pay at the rate of pay of an assistant engineer in the Navy on waiting orders only, to wit, $166.66. If entitled to two months' pay upon the basis of sea service the difference is $116.66. Conclusion of Law. Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to judgment in the sum of one hundred and sixteen dollars and sixty-six cents ($116.66). going statute should be at the rate of pay he received while doing sea service, to wit, $1,700 per year. "The contention of the government is that under the ruling of this court in United States v. North, 112 U. S. 510, 28 L. ed. 808, 5 Sup. Ct. Rep. 285, the claimant has been paid all that was due him, inasmuch as he was paid two months' extra pay provided for in the statute at the rate of pay he was receiving at the time of his discharge, to wit, at the rate of $1,000 per annum." Appellee was appointed an officer in the Navy, May 14, 1898, by authority of the act of Congress of May 4 of that year (30 Stat. at L. 369, chap. 234, U. S. Comp. Stat. 1901, p. 1056), which provided: *346 "Whenever, within the next twelve months, an exigency may exist which, in the judgment of the President, renders their services necessary, he is hereby authorized to appoint from civil life and commission such officers of the line and staff, not above the rank or relative rank of commander, and warrant officers including warrant machinists, and such officers of the Marine Corps not above the rank of captain, to be appointed from the noncommissioned officers of the corps and from civil life, as may be requisite: Provided, That such officers shall serve only during the continuance of the exigency under which their services are required in the existing war." The war with Spain began April 21, 1898, and the treaty of Paris was signed December 10, 1898. [30 Stat. at L. 1754.] Appellee served until December 17, 1898, at which time he was detached from the vessel on which he was serving and ordered home, where, on December 22, he was honorably discharged from the naval service. It seems to have been thought reasonable that the government should pay the expenses of the journey home and for the time in getting The case is reported 41 Ct. Cl. 256. *348 The act of March 3, 1899, provided for extra pay for active service. Hite was detached because it became the Department's duty to discharge him under the proviso of the act of 1898, and the detachment was manifestly preliminary to his discharge. The order detaching him did not prescribe that on arrival home he was to hold himself "on waiting orders" or for further assignment to duty. On the other hand, it required him to inform the Department of the status of his accounts, obviously in order that they might be settled on his leaving the service. were 'engaged in the military service of the United States in the war with Mexico' may be said to 'have served out the term of their engagement,' or to have been 'honorably discharged,' within the meaning of those terms as used in the act of 1848, when the war was over, or when they were ordered or mustered out of that service. Being in the Army and Navy, their 'engagement' was to serve wherever they were ordered for duty. Their engagement to serve in the war with Mexico ended when they were taken away from that service by proper authority. longer. It follows that, as North was serv ing at sea when he was ordered away, he was entitled to three months' sea pay." The two months' extra pay is given, as "The pay they were to receive was eviChief Justice Peele, delivering the opinion dently that which they were receiving at of the court of claims, says, "because of the end of their engagement, or when they creditable service beyond the limits of the were honorably discharged. The language United States during the war with Spain, is, 'shall be entitled to receive three months' and, therefore, upon discharge such officers extra pay,' evidently meaning the same pay become entitled to the same pay they were they would have received if they had rereceiving while so serving beyond the limits mained in the same service three months of the United States." "To hold, because the claimant was ordered to his home, where he was discharged five days later, instead of being discharged on the day he was detached, that therefore he is entitled only to the lesser pay, would be a construction too narrow to harmonize with the purpose of Congress as disclosed by the act." Notwithstanding the considered dissenting opinion in the court below, we agree with the conclusion that, his engagement having ended, and he having been discharged, the two months' extra pay should have been given him upon the basis of the pay he was receiving when detached. The contention of the government is that this case is governed by the ruling in United States v. North, 112 U. S. 510, 28 L. ed. 808, 5 Sup. Ct. Rep. 285. In that case it was held that officers of the Navy and of the *regular Army, who were employed in the prosecution of the war with Mexico, were entitled to the three months' extra pay provided for by the act of Congress of July 19, 1848, chap. 104, § 5, 9 Stat. at L. 248, and the act of February 19, 1879, chap. 90, 20 Stat. at L. 316. The act of 1848 provided: “That the officers, etc., engaged, etc., in the war with Mexico, and who served out the term of their engagement, or have been or may be honorably discharged, . . . shall be entitled to receive three months' extra pay." North was an officer in the Navy of the United States from May 29, 1829, to January 14, 1861, when he resigned. He served in the war with Mexico, as lieutenant, on board the frigate Potomac, from February 10, 1846, until July, 1847, when his vessel sailed for the United States. And Chief Justice Waite said: In the present case, appellee was taken away from the service when he was de-* tached from his vessel, as he was appointed to serve "only during the continuance of the exigency under which their services were required in the existing war," and was entitled, in the circumstances of the case, to extra pay on the basis of that which he was receiving when detached, as we have said above. Emory's Case was also considered by the court in the same opinion and the same conclusion reached, and reference was there made to that case as reported in 19 Ct. Cl. 254. The judgment of the Court of Claims was right, and it is affirmed. Supreme Court of the United States-original jurisdiction-suit by state. 1. The original jurisdiction of the Supreme Court of the United States does not extend to a bill filed by the attorney general of Kansas on behalf of the state as trustee for the Missouri, Kansas, & Texas Railway Company of certain lands in the Indian territory, alleged to have been granted by Con gress to the state for the benefit of the railway company, where the name of the state is being used simply for the prosecution of "Those of the regular Army or Navy who the claim of the railway company. 288. *338 United States-immunity from suit. 2. The United States may not, without its consent, be sued by a state.* [No. 11, Original.] Kansas, near Chetopa, Kansas; the second was the Leavenworth, Lawrence, &*Fort Gibson Railway Company, since conveyed to the Atchison, Topeka, & Santa Fé Railroad Company, extending from Leavenworth, through Lawrence, to the northern line of Submitted November 12, 1906. Decided Feb- the Indian territory, near Coffeyville, Mont ruary 25, 1907. gomery county, Kansas, in the direction of Galveston bay, in Texas; and the third was ORIGINAL BILL filed by the attorney the Kansas & Neosho Valley Railway Com general of Kansas on behalf of the state as trustee for the Missouri, Kansas, & Texas Railway Company of certain lands in the Indian territory, alleged to have been granted to the state for the benefit of the railway company. Dismissed for want of ju risdiction. The facts are stated in the opinion. Solicitor General Hoyt, Attorney General Moody, and Assistant Attorney General Russell in support of motion to dismiss. Messrs. Joseph H. Choate, Chiles C. Coleman, James Hagerman, Adrian H. Joline, A. B. Browne, Joseph M. Bryson, and John Madden in opposition. Mr. Chief Justice Fuller delivered the opinion of the court: On April 30, 1906, the state of Kansas applied for leave to file a bill of complaint against the United States and others, to which the United States objected on the ground of want of jurisdiction. May 21 leave was granted, without prejudice, and the bill was accordingly filed. As such an application by a state is usually granted as of course, we thought it wiser to allow the bill to be filed, but reserving to the United States the right to object to the jurisdiction thereafter, and hence the words, "without prejudice," were inserted in the order. October 9 leave was granted to the United States to file a demurrer, and, in lieu of this, a motion to dismiss was substituted, which was submitted November 12 on printed briefs on both sides. The bill was filed by the attorney general of Kansas, on behalf of the state, as trustee for the Missouri, Kansas, & Texas Railway Company, of certain lands in the Indian territory, alleged to have been granted to the state for the benefit of the railway company. It is stated by counsel for complainant, as appearing from the bill, that in 1866 "there were three Kansas railroad companies running through the state to the Indian territory line. The first was the Union Pacific Railway Company, Southern Branch, since the Missouri, Kansas, & Texas Railway Company, extending from Fort Riley, now Junction City, Kansas, in a southeasterly direction, down the valley of the Neosho river to the southern line of the state of *Ed. Note.-For cases in point, see vol. 47, Cent. pany, since the Kansas City, Fort Scott, & Memphis, and now a part of the St. Louis & San Francisco Railroad Company, extending from a point of connection with the Union Pacific Railroad at or near the mouth of the Kansas river, thence southeasterly, through the eastern tier of counties, to the northern line of the Indian territory, at or near Baxter Springs, in Cherokee county, Kansas." On July 25, 1866, an act of Congress was passed entitled "An Act Granting Lands to the State of Kansas to Aid in the Construction of the Kansas & Neosho Valley Railroad and Its Extension to Red River." 14 Stat. at L. 236, chap. 241. On the next day, July 26, an act was passed, using the same language, except as to the routes, entitled "An Act Granting Lands to the State of Kansas to Aid in the Construction of a Southern Branch of the Union Pacific Railway and Telegraph, from Fort Riley, Kansas, to Fort Smith, Arkansas" (14 Stat. at L. 289, chap. 270), which provided as fol lows: "That for the purpose of aiding the Union Pacific Railroad Company, Southern Branch, the same being a corporation organized under the laws of the state of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near said military reservation, thence down the valley of the Neosho river to the southern line of the state of Kansas, with a view to an extension of the same through a portion of the Indian territory to Fort Smith, Arkansas, there is hereby granted to the state of Kansas, for the use and benefit of said railroad company, every alternate section of land or parts thereof designated by odd numbers to the extent of five alternate sections per mile on each side of said road, and not exceeding in all ten sections per mile; *"Sec. 3. And the lands hereby granted shall inure to the benefit of said company, as follows: When the governor of the state of Kansas shall certify that any section of ten consecutive miles of said road is completed in a good, substantial, and workmanlike manner as a first-class railroad, then the said Secretary of the Interior shall issue to the said company patents for so many sections of the land herein granted within the limits above named, and coterDig. United States, § 113. *339 *340 minous with said completed section herein- tion 3 provided that patents should be isbefore granted; sued not to the state, but to the company direct, which made the state nothing but a mere conduit for the passage of title. And this is so even if it were ruled that the state of Kansas was made trustee under § 9, because it would only be trustee of the bare legal title. In very many cases "in which the grant was directly to the railroad company, or in which the act of Congress required that the patents for lands earned should be issued not to the state, for the benefit of the railroad company, but directly to the company itself," it has been held that the title vested absolutely in the railroad company. Sioux City & St. P. R. Co. v. United States, 159 U. S. 349, 364, 40 L. ed. 177, 182, 16 Sup. Ct. Rep. 17, 23. "Sec. 8. And be it further enacted, That said Pacific Railroad Company, Southern Branch, its successors and assigns, is hereby authorized and empowered to extend and construct its railroad from the southern boundary of Kansas, south through the Indian territory, with the consent of the Indians, and not otherwise, along the valley of Grand and Arkansas rivers, to Fort Smith, in the state of Arkansas; and the right of way through said Indian territory is hereby granted to said company, its successors and assigns, to the extent of one hundred feet on each side of said road or roads, and all necessary grounds for stations, buildings, workshops, machine shops, switches, side tracks, turntables, and water | stations. "Sec. 9. And be it further enacted, That the same grant [s] of lands through said Indian territory are hereby made as provided in the first section of this act, whenever the Indian title shall be extinguished by treaty or otherwise, not to exceed the ratio per mile granted in the first section of this act: Provided, That said lands become a part of the public lands of the United States." The bill averred that the road was constructed through the Indian territory, and set forth at length Indian treaties and congressional legislation with reference to that territory, under which it was alleged that the Creek Indian Nation had ceased to occupy or claim the lands in question as a tribe or nation, and that some of the lands had been allotted in severalty to individual members of the Creek Nation; and that thereby said lands passed to the state under the provisions of the grant mentioned. It was prayed that a decree be entered adjudging the state to be the owner, as trustee for the railway company, of all odd-numbered sections of land to the extent of the grant along the line of the road through the Creek Nation, in the Indian territory, and that the allottees be directed to surrender the possession to the state as trustee, and be enjoined from disposing of said lands, or "in the event that, from any equitable considerations, the court shall entertain the view that the allottees and those claiming under them should not be disturbed, then that an account be taken of the value of the lands in controversy," and that the United States be adjudged to pay to the state, as trustee, the sum of such values, estimated at more than $10,000,000. In our opinion it appears upon the face of the bill that the state of Kansas is only nominally a party, and that the real party in interest is the railroad company. Sec Title passed by the grant on the performance of its conditions and to the grantees to whom the patents were to be issued, and here § 3 provided that patents should issue not to the state, but to the railroad company direct. And if the lands in the Indian territory could be held in any view to have been granted in præsenti, such grant was certainly not to the state of Kansas. The road, in aid of which the grant was made to the state, extended no farther than the southern boundary thereof, and the patents were to be issued to the company. True, as declared in § 1, the road was to be constructed "with a view to an extension of the same through a portion of the Indian territory to Fort Smith, Arkansas," and that extension was authorized by § 8, but the lands referred to in § 9 were not lands in the state of Kansas, nor was that state mentioned in the section. It seems clear that those lands were not intended to be granted to that state for the construction of a road beyond its boundaries. Moreover, the bill sets forth many communications and protests by the railroad company to the Dawes Commission, the townsite commission, the Indian agent, and the Secretary of the Interior, in all of which the tracts in controversy were claimed by the railroad company as its own without reference to any interest of the state of Kansas therein. In these circumstances we think it apparent that the name of the state is being used simply for the prosecution in this court of the claim of the railroad company, and our original jurisdiction cannot be maintained. Again, the United States is the real party in interest as defendant, and has not consented to be sued, which it cannot be without its consent. Minnesota v. Hitchcock, 185 U. S. 373, 387, 46 L. ed. 954, 962, *341 *342 22 Sup. Ct. Rep. 650, 656; Oregon v. Hitch-, consent, yet, with its consent, it may be cock, 202 U. S. 60, 50 L. ed. 935, 26 Sup. sued, and the judicial power of the United Ct. Rep. 568; United States v. Lee, 106 States extends to such a controversy." U. S. 196, 207, 27 L. ed. 171, 177, 1 Sup. Ct. Rep. 240. "If whether a suit is one against a state is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered, the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record, but by the question of the effect of the judgment or decree which can be entered." We are not dealing here with the merits of the controversy raised by the bill, but solely with the question of the original juris- ✪ diction of this court. And, as the United States has not consented to be sued, it results that, on this ground also, the bill must be dismissed. And it is so ordered. Mr. Justice Moody took no part in the disposition of this case. Err., V. (204 U. S. 522) RALPH W. JACKMAN, as Trustee of the raised. In the present case the parties defendant other than the United States and its officers EAU CLAIRE NATIONAL BANK, Plff. in are Creek Indian allottees and persons claiming under them, and, if their allotments should be taken from them, which is part of the relief sought by the bill, the United States would be subject to a demand from them for the value thereof or for other lands, while the bill prays in the alternative that, "in the event that from any equitable considerations the court should entertain the view that the allottees and those claiming under them should not be disturbed, then that an account be taken of the value of the lands in controversy at the time of the respective allotments, and the defendants, the United States of America, be ordered, adjudged, and decreed to pay to your Pleading-demurrer-waiver of objection by oratrix, as trustee, the sum of such values." It does not follow that because a state may be sued by the United States without its consent, therefore the United States may be sued by a state without its consent. Public policy forbids that conclusion. In United States v. Texas, 143 U. S. 621, 646, 36 L. ed. 285, 293, 12 Sup. Ct. Rep. 488, 494, it was held that the exercise by this court of original jurisdiction "in a suit brought by one state against another to determine the boundary line between them, or in a suit brought by the United States against a state to determine the boundary between a territory of the United States and that state, so far from infring ing, in either case, upon the sovereignty, is with the consent of the state sued. Such consent was given by Texas when admitted into the Union upon an equal footing in all respects with the other states." That case was quoted from with approval in Minnesota v. Hitchcock, supra, where Mr. Justice Brewer, delivering the opinion, pointed out that the judicial power of the United States extends to cases in which the United States is a party plaintiff as well as to cases in which it is a party defendant, for "while the United States, as ■ government, may not be sued without its 1. A judgment of the highest state court in favor of a trustee in bankruptcy in an action brought by him to recover the value of an alleged voidable preference may be reviewed by the Federal Supreme Court as a decision against a Federal right or immunity, specially set up or claimed, where the state court answered some of the defendant's contentions by the construction which it gave to the bankrupt act.* pleading over. 2. The question whether the election by a trustee in bankruptcy to avoid a preference should be exercised by a demand before suit, or can be exercised by the suit itself, is not open to the defendant, although a ground of demurrer, the absence of an alit demurred to the complaint, and urged, as legation of a demand, where it did not stand on the demurrer, but answered, and not only traversed the allegations of the complaint, but set up an independent defense, and showed that a demand would have been unavailing. Error to state court-questions reviewable- the answer to the question whether or not 4. The validity of all other claims against the bankrupt, and the question whether others have received voidable preferences and have not been required to surrender them, cannot be litigated in a suit in a state court to avoid an alleged unlawful preference, since this would, in effect. Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1053. tEd. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1090. |