line of decision between state functions essentially political or governmental in nature, and those of a private or commercial character, and said that, as to these, the limitation upon the taxation by the Federal Government of State agencies does not apply. Furthermore, as has been earlier pointed out, corporations wholly or in part owned by a State are not, for that reason, exempt from suit, but the State when it becomes the owner and participant in the management of a private enterprise throws off, as to such enterprise, its sovereign character. The question raised in the ease of Murray v. Wilson Distilling Co. is whether the same doctrine as to immunity of suit applies when the business is directly conducted by a State itself and not through a private corporation, chartered by itself, and of whose stock it is the part or sole

owner.

§ 628. Suits to Recover Specific Pieces of Property Held by the State.

Thus far in the discussion of the suability of the State, according to American constitutional law, reference has been had to suits involving the recovery of money judgments or the issuance of writs of mandamus or of injunction to state officials. There now is to be considered the question whether the principles that have been laid down are sufficient to warrant suits brought by individuals to recover possession of specific pieces of property held, in their official capacities, by officials of the States or of the United States.

§ 629. Set-offs Against the State.

66

In United States v. Clarke it was declared by Marshall that the United States was not suable of common right, and that unless the plaintiff could bring his suit within the terms of some permissive act of Congress, the court could not entertain it.

In The Siren v. United States67 this was quoted with approval and the further observation made that the exemption from suit

66 8 Pet. 436; 8 L. ed. 1001.

67 7 Wall. 152; 19 L. ed. 129.

extends to the property of the United States. The further doctrine, which had been previously declared in several cases, was affirmed in this case, that "although direct suits cannot be maintained against the United States, nor against their property, yet when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of setoffs, legal and equitable, to the extent of the demand made or property claimed. They then stand in such proceedings, with reference to the rights of defendants or claimants, precisely as private suitors, except that they are exempt from costs and from affirmative relief against them, beyond the demand or property in controversy."

§ 630. Liens.

The interesting point was, however, made in this case, that though a lien attaching to a piece of property owned by the State is not enforceable, the lien itself may exist, and becomes enforceable as soon as the State voluntarily sells or otherwise parts with the actual possession of the property. Thus in the case at bar which was a suit to subject the proceeds from the sale of a ship, taken as a prize of war by the United States, to a claim. for damages occasioned by the collision of that ship with a ship privately owned, the court granted the claim, saying:

"The authorities to which we have referred are sufficient to show that the existence of a claim, and even of a lien upon property, is not always dependent upon the ability of the holder to enforce it by legal proceedings. A claim or lien existing and continuing will be enforced by the courts whenever the property upon which it lies becomes subject to their jurisdiction and control. Then the rights and interests of all parties will be respected and maintained. Thus, if the government, having the title to land subject to the mortgage of the previous owner, should transfer the property, the jurisdiction of the court to enforce the lien would at once attach, as it existed before the acquisition of the property by the government.

66

So, if the property belonging to the government, upon which claims exist, is sold upon judicial decree and the proceeds are paid into the registry, the court would have jurisdiction to direct the claims to be satisfied out of them. Such decree of sale could only be made upon application of the government, and by its appearance in court, as we have already said, it waives its exemption and submits to the application of the same principles by which justice is administered between private suitors.

"Now, it is a settled principle of admiralty law, that all maritime claims upon the vessel extend equally to the proceeds arising from the sale and are to be satisfied out of them. Assuming, therefore, that The Siren was in fault and that by the tort she committed a claim was created against her, we do not perceive any just ground for refusing its satisfaction out of the proceeds of her sale. The Government is the actor in the suit for her condemnation. It asks for her sale, and the proceeds coming into the registry of the court, come affected. with all the claims which existed upon the vessel created subsequent to her capture."

In The Davises it was held that personal property of the United States was subject to a lien for salvage purposes, if such property was not actually in the possession of the United States, and if the lien could be enforced without bringing a direct suit against the United States. Defining what should be deemed possession under this rule, the court said that it must be an actual and not a constructive one-one that "can only be changed under process of the court by bringing the officer of the court into collision with the officer of the Government, if the latter should choose to resist."

§ 631. The Arlington Case: United States v. Lee.

In 1882 was decided the famous case of United States v. Lee. 69 The facts upon which the case was based were these: The Robert E. Lee homestead, the Arlington Estate, had been for ten years

68 10 Wall. 15; 19 L. ed. 875.

69 106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171.

in possession of the United States under a title acquired by sale for non-payment of taxes. The plaintiff, heir of Robert E. Lee, claiming that this title was an invalid one, brought suit in ejectment against the federal officers in charge of the property to recover possession of it. The United States, by its Attorney-General, intervened for the purpose of setting up its title and moving that the suit be dismissed as being in effect a suit against itself. Upon appeal to the Supreme Court of the United States that court, upon the first hearing, eight judges sitting, divided equally upon the point whether the suit was to be regarded as a suit against the United States and, therefore, beyond judicial cognizance, and ordered a second hearing before a full court of nine justices. By a bare majority of five to four, it was held upon the second hearing that, though the property was claimed by the United States, the suit might be maintained against the federal officers in possession of the property to determine whether or not the federal title which they alleged to support them in their possession was a valid one, and that, if not valid, they might be ejected. Justice Miller rendered the majority opinion.

After a review of the previously decided cases, in which especial emphasis was laid upon the cases of United States v. Peters,70 Meigs v. McClung," and Osborn v. Bank of the United StatesTM2 which, it was declared, governed the case at bar, Justice Miller went on to state what was after all to be considered the real ground upon which the suit was sustained. This was, that it was not in consonance with the general principles of American political philosophy to hold that the citizen could not be protected against an unconstitutional act of his State.

"It is not pretended, as the case now stands," said he, "that the President had any lawful authority to do this, nor that the legislative body could give him any such authority, except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone

70 5 Cr. 115; 3 L. ed. 53.

719 Cr. 11; 3 L. ed. 639.

72 9 Wh. 738; 6 L. ed. 204.

who asserts authority from the executive branch of the Govern ment, however clear it may be made that the executive possessed no such power. Not only that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty or property without due process of law, or to take private property without just compensation. No man in this county is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the Government, from the highest to the lowest, are creatures of that law and are bound to obey it. It can

not be, then, that when, in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court: Stop here; I hold by order of the President, and the progress of justice must be stayed. That, though the nature of the controversy is one peculiarly appropriate to the judicial function; though the United States is no party to the suit; though one of the three great branches of the Government, to which by the Constitution this duty has been assigned, has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen."

§ 632. The Doctrine of United States v. Lee Applied to a State. In Tindal v. Wesley73 the doctrine of United States v. Lee was applied to a State of the Union, the court in its opinion saying: "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. But the Eleventh Amendment gives no immunity to officers or agents of a State in withholding

73 167 U. S. 204; 17 Sup. Ct. Rep. 770; 42 L. ed. 137.