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the bill is filed," in which case they are liable, as trustees, to account for the same, to those entitled thereto.8 Whether a suit can be brought against the President of the United States is undecided.9

§ 95. The United States as a defendant. In general. The United States cannot be sued in any court without their consent.1 A Territory of the United States, such as the Territory of Hawaii,2 or Porto Rico,3 has the same immunity. The District of Columbia has not. Neither has the city of Manila in the Philippines.5 Even if there is no remedy adequate to the

C. A., 115 Fed. 285; Skiff v. White, 127 Fed. 175; Story's Eq. Pl., § 179, infra, § 109.

7 Sandilands v. Inness, 3 Sim. 363; McNamara. v. Dwyer, 7 Paige (N. Y.) 239, 32 Am. Dec. 627; Campbell v. Tousey, 7 Cow. (N. Y.) 64, infra, § 109.

8 Lewis v. Parrish, C. C. A., 115 Fed. 285, infra, § 109.

9 See Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; People ex. rel. Broderick v. White, 156 N. Y. 136, 4 L.R.A. 231, 66 Am. St. Rep. 547, and cases cited.

§ 95. 1 Carr v. U. S., 98 U. S. 433, 25 L. ed. 209; Kansas v. U. S., 204 U. S. 331, 51 L. ed. 510.

2 Kawananakoa v. Polyblank, 205 U. S. 349, 353, 51 L. ed. 834, 836; per Holmes, J.: "Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. (Leviathan, c. 26, 2.) A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 'Car on peut bien recevoir loy Fed. Prac. Vol. I-38

d'autruy, mais il est impossible par nature de se donner loy.' Bodin, Republique, 1, c. 8. Ed. 1629, p. 132. Sir John Eliot, De Jure Maiestatis, c. 3. Nemo suo statuto ligatur necessitative. Baldus,, De Leg. et Const., Digna Vox (2d ed., 1496, fol. 5lb. Ed. 1539, fol. 61). As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of judicial theory, but naturally is extended to those that in actual administration originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained unless they are so."'

3 Porto Rico v. Rosaly, 227 U. S. 270; Porto Rico v. Ramos, 232 U. S. 627; Porto Rico v. Emmanuel, 235 U. S. 251; Veitia v. Fortuna Estates, C. C. A., 240 Fed. 256; Soler v. Scoville, C. C. A., 253 Fed. 932.

4 Metropolitan R. R. Co. v. Dis. trict of Columbia, 132 U. S. 1, 33 L. ed. 231.

5 Vilas v. City of Manila, 220 U. S. 345, 55 L. ed. 491.

collection of a claim against a municipality when reduced to judgment, a plaintiff having a valid claim is entitled to maintain an action thereupon and to reduce the same to judgment. against it.

The United States may waive their exemption from suit by statute, but not by the act of any of their officers. A Territory waives exemption by the appearance of the Territorial Attorney General or by failing to object to the jurisdiction.10 When the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of any set-off, legal and equitable, to the extent of the demand made or property claimed.11 No affirmative judgment then can be entered by the defendant, upon his set off or counterclaim.12

The Revised Statutes provide: "In suits brought by the United States against individuals, no claim for a credit shall be admitted, upon trial, except such as appear to have been presented to the accounting officers of the Treasury, for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting

6 Mount Pleasant v. Beckwith, 100 U. S. 514, 530, 25 L. ed. 699, 703; Vilas v. City of Manila, 220 U. S. 345, 352, 55 L. ed. 491, 494. It has been held that the National Home for Disabled Volunteer Soldiers, in Tennessee, a charitable institution engaged as an agency of the Federal Government in the discharge of a governmental function, is not subject to an action sounding in tort to recover damages for the negligence of its officers in diverting and polluting the waters of plaintiff's spring; since the power to sue and to be sued at law and in equity," conferred on the corporation by its charter (U. S. R. S., § 4825, Comp. St. 1901, p. 3337), is limited to matters within the scope of the other corporate powers with which it is vested. Lyle v.

National Home for Disabled Volunteer Soldiers, 170 Fed. 842.

7 U. S. v. Clarke, 8 Pet. 436, 8 L. ed. 1001; The Siren, 7 Wall. 152, 19 L. ed. 129.

8 Carr v. U. S., 98 U. S. 433, 25 L. ed. 209.

9 Porto Rico v. Ramos, 232 U. S. 627; Veitia v. Fortuna Estates, C. C. A., 240 Fed. 256.

10 Kawananakoa V. Polyblank, 205 U. S. 349, 353, 51 L. ed. 834, 836; Porto Rico v. Emmanuel, 235 U. S. 251; Richardson v. Fajardo Sugar Co., 241 U. S. 44.

11 Reeside v. Walker, 11 How. 272, 13 L. ed. 693; U. S. v. Kerr, 196 Fed. 503.

12 Reeside v. Walker, 11 How. 272, 13 L. ed. 693; New York v. Dennison, 84 N. Y. 272.

a claim for such credit at the Treasury by absence from the United States or by some unavoidable accident." 13 It has been held that this applies to all counterclaims against the United States.14

When the United States proceed in rem, they open to consideration all claims and equities in regard to the property libeled.15 Where property of the United States is involved in a litigation to which they are not technically parties, the attorney for the district where the suit is brought may intervene by way of suggestion; and in such a case the court will either stay the suit or adjust its judgment according to the rights disclosed on the part of the government; 16 but no judgment can then be entered against the United States for costs or divest them of their title to property.17

19

A suit against the United States Shipping Board or the United States Emergency Fleet Corporation 18 or against a railroad company or telegraph company 20 while under Federal control is not a suit against the United States, provided that no property of the defendant is seized by writ or other process.21 By the Transportation Act of February 28, 1920, "Actions

13 U. S. R. S., § 951.

14 U. S. v. Kerr, 196 Fed. 503. 15 Mr. Justice Field in The Siren, 7 Wall. 152, 154; Walker v. U. S., 139 Fed. 409. A more liberal rule against the government is sug. gested in Fifth Nat. Bank v. Long, 7 Biss. 502; Elliot v. Van Voorst, 3 Wall. Jr. 299; Briggs v. The Light Boats, 11 Allen (Mass.), 157; Stanley v. Schwalby, 162 U. S. 255, 272. In U. S. v. Ansonia Brass & Copper Co., 218 U. S. 452, it was held that certain stipulations made by a District Attorney of the United States, in order to obtain possession of vessels seized by judicial proceedings while in the course of construction, should not be construed as depriving the Government of any rights asserted under the contracts for such construction.

16 Stanley v. Schwalby, 147 U. S. 508, 513; The Exchange, 7 Cranch, 116, 147. But see Stanley V Schwalby, 162 U. S. 255,

17 Stanley v. Schwalby, 162 U. S. 255, 272. Infra, § 105.

18 Gould Coupler Co. v. U. S. Shipping Board Emergency Fleet Corporation (S. D. N. Y.), 261 Fed. 716. But see Commonwealth Furnace Corp'n v. Landis (E. D. Pa.) 261 Fed. 440.

19 Muir v. Louisville & N. R. Co. 247 Fed. 888; Cocker v. N. Y. & O. Ry. Co., 253 Fed. 676; Harnick v. Pennsylvania R. Co., 254 Fed. 748; infra, § 961.

20 Witherspoon & Sons v. Postal Telegraph & Cable Co., 257 Fed. 758. See infra, § 96j.

21 Commonwealth Furnace Corp'n v. Landis (E. D. Pa.), 261 Fed. 440.

at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or the Act of August 29, 1916) of such character as prior to Federal control could have been brought against such carrier may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier.

"Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier and if a contract has been made with such carrier by or through the President for the conduct of litigation arising out of operation during Federal control. If no such contract has been made process may be served upon such agents or officers as may be designated by or through the President. The agent designated by the President under subdivision (a) shall cause to be filed, upon the termination of Federal control, in the office of the Clerk of each District Court of the United States, a statement naming all carriers with whom he has contracted for the conduct of litigation arising out of operation during Federal control, and a like statement designating the agents or officers upon whom process may be served in actions, suits, and proceedings arising in respect to railroads or systems of transportation with the owner of which no such contract has been made; and such statements shall be supplemented from time to time, if additional contracts are made or other agents or officers appointed.

"Complaints praying for reparation on account of damage claimed to have been caused by reason of the collection or enforcement by or through the President during the period of Federal control of rates, fares, charges, classifications, regulations, or practices (including those applicable to interstate, for

eign, or intrastate traffic) which were unjust, unreasonable, unjustly discriminatory, or unduly or unreasonably prejudicial, or otherwise in violation of the Interstate Commerce Act, may be filed with the Commission, within one year after the termination of Federal control, against the agent designated by the President under subdivision (a), naming in the petition the railroad or system of transportation against which such complaint would have been brought if such railroad or system had not been under Federal control at the time the matter complained of took place. The Commission is hereby given jurisdiction to hear and decide such complaints in the manner provided in the Interstate Commerce Act, and all notices and orders in such proceedings shall be served upon the agent designated by the President under subdivision (a).

"Actions, suits, proceedings, and reparation claims, of the character above described pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).

"Final judgments, decrees, and awards in actions, suits, proceedings, or reparation claims, of the character above described, rendered against the agent designated by the President under subdivision (a), shall be promptly paid out of the revolving fund created by section 210.

"The period of Federal control shall not be computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to Federal control.

"No execution or process, other than on a judgment recovered by the United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under Federal control."

The Act of March 9, 1920, authorizes libels and cross-libels in personam to be filed against vessels owned by the United States or by corporations, a majority of the stock in which is owned by the United States. This statute will be quoted in the Chapter on Admiralty.

Whether the United States is a legal effective party is de

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