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Argument for Complainant.

202 U.S.

which would have defeated the original jurisdiction of this court. The statute was passed to enable the United States to be the defendant on account of its absence of interest in the suit and not on account of the immunity of the Government from suit.

Nor is a statute or other express warrant necessary to enable a suit affecting the interest of the Government to be maintained against its officers. The immunity of the sovereign from suit does not extend to those who act for it; and the concern of the sovereign in the subject matter of a controversy does not preclude the jurisdiction of the courts. While the State may not be directly sued, the acts of those who assume to act for the State may be examined, and such acts may be enjoined even when taken or proposed to be taken by direct authorization of the sovereign. Even the fact that the State has the entire ultimate interest in the controversy, and is solely to be affected by the judgment, does not prevent the maintenance of the action against the proper officers of the State. Osborn v. United States Bank, 9 Wheat. 738; United States v. Peters, 5 Cranch, 115; Davis v. Gray, 16 Wall. 203; Allen v. R. R. Co., 114 U. S. 311; Board of Liquidation v. McComb, 92 U. S. 531; Hagood v. Southern, 117 U. S. 52; In re Ayres, 123 U. S. 443; Pennoyer v. McConnaughy, 140 U. S. 1; Rolston v. Crittenden, 120 U. S. 390; Reagan v. Loan and Trust Co., 154 U. S. 362; Ex parte Tyler, 149 U. S. 164.

Where a Federal officer is made defendant, it is no objection to the jurisdiction that the controversy involves the property or otherwise concerns the interest of the United States; nor is it necessary, the case being of the character in which a state officer might be sued, that the Government should consent to the suit being brought. United States v. Lee, 106 U. S. 196; Meigs v. McClung, 9 Cranch, 11; Grisar v. McDowell, 6 Wall. 363; Brown v. Huger, 21 How. 305; United States v. Schurz, 102 U. S. 378; Noble v. Logging Co., 147 U. S. 165.

In cases where jurisdiction is asserted on the ground of diverse citizenship, the Federal courts look only to the citizen

202 U. S.

Argument for Complainant.

ship of the parties named on the record, without regard to their relationship to the cause or to the citizenship of those who, though not parties, are the real parties in interest. Childress v. Emory, 8 Wheat. 642; Rice v. Houston, 13 Wall. 66; Bonnafee v. Williams, 3 How. 574; Dodge v. Tulleys, 144 U. S. 451; 1 Foster's Federal Practice, 3d ed. $ 19. The same rule applies where the defendant is sued in a purely official capacity and the real interest is in the State of which he is an officer. Davis v. Gray, 16 Wall. 203.

With respect to the suggestion that the jurisdiction might be ousted if one of the defendants should, in the progress of the suit, be succeeded by a citizen of the complainant State, the rule seems to be settled, that, if the jurisdiction is properly acquired by reason of the diverse citizenship of the original parties, it is not defeated by such a change of parties as brings citizens of the same State upon opposite sides of the record. 1 Foster's Federal Practice, $ 19; Stewart v. Dunham, 115 U.S. 61; Phelps v. Oakes, 117 U. S. 236; Anderson v. Watt, 138 U. S. 707; Tug River Co. v. Brigel, 86 Fed. Rep. 818.

As a second additional ground of jurisdiction the present cause is within that clause of the Constitution which extends the judicial power of the Federal courts “to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” In this case, the State claims the land under one of the laws of the United States, the swamp land grant of Congress, and the defendants assert their right to control and dispose of the lands as the property of the United States in virtue of an act of Congress passed in 1848, of a treaty made with the Indians in 1864, and of a statute enacted in 1887. There can be no question of the fact that the case is within the class defined in the last quoted clause of the Constitution.

The general rule that until patent is issued the courts will not interfere with the Land Department does not apply to a case like this. Upon the averments of the bill, and upon the law applicable to the facts stated, the State of Oregon has in the

VOL. CCII-5

Argument for Defendants.

202 U.S.

lands a vested title such as is recognized and protected by the courts. Though the legal title remains in the United States, it so remains only for the purpose of being transferred to the State; and though the legal title is under the control of the Secretary of the Interior, the equitable title in the State is one which that officer is bound to respect, and which he cannot arbitrarily destroy or impair. Cornelius v. Kessel, 128 U. S. 456, 461; Brown v. Hitchcock, 173 U. S. 473, 478.

The duty of the courts in a proper case, to respect an equitable title is equally clear. The State being entitled to have the lands patented, she is, so far as her right to be protected is concerned, in as favorable a situation as if patents had been, as they should be, issued. Simmons v. Wagner, 101 U. S. 260; Stark v. Starr, 6 Wall. 402.

So, universally, the right conferred by a complete entry, wanting only patent to consummate legal title, is property; the land is not subject to other entry, and it is taxable as private property. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Railway Co. v. Prescott, 6 Wall. 603; Railroad Co. v. Price Co., 133 U. S. 496; Cornelius v. Kessel, 128 U. S. 456. See also French v. Fyan, 93 U. S. 169; Barney v. Dolph, 97 U. S. 652.

Mr. F.W. Clements, Assistant Attorney, and Mr. A.C. Campbell, Special Assistant to the Attorney General, with whom Mr. F. L. Campbell, Assistant Attorney General, was on the brief, for defendants:

The case does not belong to that class wherein this court has original jurisdiction. The judicial power belonging to the United States is conferred by Article III of the Constitution, and its limits are defined by the second section.

The mere fact that the State is the complainant is not conclusive. Taylor's Jurisdiction Supreme Court, $ 30; Minnesota v. Hitchcock, 185 U. S. 373, where jurisdiction was conferred by special act of Congress. See also California v. Southern Pacific Co., 157 U. S. 229.

202 U. S.

Argument for Defendants.

But if it were conceded that the United States is the real party in interest and would be directly affected by the decree, the court is without jurisdiction because the Government cannot be made a party defendant in any court without its consent, and consent has not been given in an action such as is here under consideration. United States v. Lee, 106 U. S. 196.

If it be conceded that the doctrine is limited, or that it has no application to a case like the one at bar, or that the defendants as officers of the Government are the proper parties to the action, this court, although it might have appellate, would not have original, jurisdiction. In such case the proper forum for the institution of the suit would be the Supreme Court of the District of Columbia. United States v. Schurz, 102 U. S. 378; Union River Logging Company, 147 U. S. 165; Brown v. Hitchcock, 173 U. S. 473. An injunction against individuals as officers of the Government is limited to a suit such as is authorized by law and where the act enjoined is purely ministerial in character. Taylor's Jurisdiction of Supreme Court, $ 48; In re Ayers, 123 U. S. 443. The acts here sought to be restrained are not ministerial in character. Mississippi V. Johnson, 4 Wall. 475; United States v. Schurz, 102 U. S. 378.

The complainant has no interest in the subject matter of the action. The lands are subject to allotment among the Indians. Neither have the defendants any interest in the subject matter of the action as individuals. Minnesota v. Hitchcock, supra.

Persons whose interests would be affected by a decree are not made parties. If made parties the jurisdiction of the court would be defeated, if otherwise it had jurisdiction.

The allottee Indians are interested parties and will be materially affected by a decree in favor of the State; therefore they should be made parties. Shields v. Barrow, 17 How. 130; Chadbourne's Executors v. Coe, 10 U. S. App. 78. As the allottees are residents of Oregon and citizens thereof, Matter of Heff, 197 U. S. 488, if they are made parties the jurisdiction of the

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court would for that reason, be ousted. California v. Southern Pacific Company, 157 U. S. 229; Minnesota v. Northern Securities Company, 184 U. S. 199, 245.

The legal title to the lands involved is in the United States. The State admits they are burdened with the Indian right of occupancy. It is settled law that until the Indian right of occupancy to lands has been extinguished the Indian Bureau, of which the Secretary of the Interior is the head, has jurisdiction and control over the lands so occupied. United States v. Thomas, 151 U. S. 577. Until the legal title to the land passes from the Government inquiry as to all equitable rights comes within the cognizance of the Land Department. Brown v. Hitchcock, 173 U. S. 473; Humbird v. Avery, 195 U. S. 480, 502.

The State admits in the bill of complaint that there has been no finding by the Land Department, of which the Secretary of the Interior is the head, that the lands were swamp or overflowed in character on March 12, 1860. Until such finding is made and patent issued the grant is in process of administration. Michigan Land & Lumber Company v. Rust, 168 U.S. 589, 591; New Orleans v. Paine, 147 U. S. 261, 266.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The question of jurisdiction of course precedes any inquiry into the merits. By sec. 2 of art. III of the Constitution and sec. 687, Rev. Stat., this court has original jurisdiction of a suit brought by a State against citizens of other States. Pennsylvania v. Quicksilver Company, 10 Wall. 553; Wisconsin v. Pelican Insurance Company, 127 U. S. 265, 287, and cases cited in the opinion; California v. Southern Pacific Company, 157 U. S. 229, 258; Minnesota v. Hitchcock, 185 U. S. 373. But the contention is that the United States is the real party in interest as defendant, that it cannot be sued without its consent, and that it has given no consent. While the nominal defendants are

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