at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law, and are bound to obey it. Courts of justice are established not only to decide upon the controverted rights of the citizens as against each other, but also upon the rights in controversy between them and the Government; and the docket of this Court is crowded with controversies of the latter class." (U. S. v. Lee, 106 U. S. 220.)

The second reason offered in support of the rule is one of the numerous instances in which the Courts, unable to give any more definite cause for their action, lodge it, in vague terms, upon "public policy."

This reasoning, also, has been met and fully answered in the Supreme Court, in the Arlington Cases. (106 U. S. 217.)

"In this connection," says Justice Miller, "many cases of imaginary evils have been suggested, if the contrary doctrine should prevail. Among these are a supposed seizure of vessels of war, and invasion of arsenals and forts of the United States. Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the Government; and, if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail. * * * Looking at the question upon principle, and apart from the authority of adjudged cases, we think it still clearer that this branch of the defense cannot be maintained. It seems to be opposed to all the principles upon which the rights of the citizen, when brought in collision with the acts of the Government, must be determined. In such cases there is no safety for the citizen except in the protection of the judicial tribunals. * * * The evils supposed to grow out of the possible interference of judicial action, with the exercise of the powers of the Government essential to some of its most important operations, will be seen to be small indeed when compared to this evil, and much diminished, if they do not wholly disappear, upon a recurrence to a few considerations. The slightest consideration of the nature, the character, the organization and the powers of the Courts will dispel any fear of any injury to the Government at their hands. While, by the Constitution, the Judicial Department is recognized as one of the

* * *

three great branches among which all the powers and functions of the Government are distributed, it is inherently the weakest of them all. Dependent as the Courts are for the enforcement of their judgments upon officers appointed by the Executive, and removable at pleasure, with no patronage and no control of purse or sword, their power and influence rest solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of their rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives. From such a tribunal no well-founded fear can be entertained of injustice to the Government, or purpose to obstruct or diminish its just authority."

If the claim is passed on by the Legislature, it is none the less to be paid by taking money from the Treasury, the only difference being. that the draft is apt to be larger than when the claim is sifted by a Court.

In Kentucky the rule was adopted apparently without any independent consideration, on the theory that if the State was allowed to be sued "the mails might be stopped, the sinews of war might be cut, and an army left destitute." (Divine v. Harvie, 7 Mon. 445.)

Indeed the rule was carried still further, and it was held that the State cannot even be made a garnishee, for fear of the "mortifying circumstance of a member of the Legislature rendered unable to pay his sustenance while attending its session," because of the garnishment of his salary for an honest debt. (Divine v. Harvie, supra.) But Judge Owsley dissented, and declared that it was opposed to morals and justice, saying:

"After the debt is payable, it cannot be important to the interests of the Government whether the money is paid over to the person with whom it was contracted or any other. Though the payment be made to another, the wheels of government will move on as before, without the apprehension of danger to the Post-office Department, or fears that the Legislature may be disturbed in their official deliberations." And in Rodman v.

Musselman, 12 Bush, 357, the idea of there being any "public policy" in encouraging insolvent and dishonest officials by helping them to evade the payment of their injured creditors, is

scouted, and the Court says that the rule has rather the opposite effect of resulting in "a denial of credit to them, and consequently more injury than benefit."

As far back as 1832 the Constitution of Mississippi provided that the Legislature “shall direct in what manner and in what Courts suit may be brought against the State." The Mississippi Legislature, in 1833, passed an Act providing that "It shall be competent for any person or persons deeming him or her or themselves, or body politic or corporation, to have a just claim against the State of Mississippi, to exhibit and file a bill in equity against the State."

That Act remained in force until about the time of the war, and it was not only not productive of any injurious consequences, but it proved so beneficial that it was readopted as a permanent provision of the Code in 1871. (Whitney v. State, 52 Miss.)

In 1855 the United States established the Court of Claims, with jurisdiction to decide controversies against the Government arising on contracts. No hinderance or disaster to the public service has followed, nor were “the sinews of war cut" by it, even during the great civil conflict. But it has proved such a benefit that the most thoughtful minds are anxious to so enlarge its jurisdiction as to relieve Congress entirely from the burdens and temptations of sitting upon private claims.

Counties, cities and towns are governments, and some of them-like New York city-larger than some of the States; yet they have always been sued, and no disastrous consequences have occurred by sending their creditors to the Courts instead of to their Common Councils. If New York city or Philadelphia can be sued, there can be no reason why Rhode Island or Delaware may not be.

A thoughtful consideration will show that the transferring of such controversies from the lobby to the Courts will not only not injure the State, but will save it from many losses; will benefit the public service; will take away from the Legislature the most distracting, absorbing and contaminating influences with which it is now beset, and will enable it to turn its whole attention to the more appropriate and seemly duty of pure legislation. That the State and the citizen will each be far more apt to obtain

accurate justice before the Courts than before the legislative committees, no one can doubt for an instant.

A truth so important and so easy of demonstration as this cannot always be ignored, and we already begin to find significant evidences of its recognition. Allusion has already been made to the powerful utterances of the Supreme Court on the subject; and while that tribunal is fettered by unfortunate precedents that it has not yet been wholly able to overcome, yet it has reduced the evil as far as possible by holding that, "where the State is concerned, the State should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the Court may proceed to decree against the officers of the State in all respects as if the State were a party to the record.

"In deciding who are parties to the suit, the Court will not look beyond the record; and making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest." (U. S. v. Lee, 106 U. S. 215.)

Allusion has also been made to the steps taken in this direction by the establishment of the United States Court of Claims; and to the complete rejection of the old rule by the State of Mississippi as far back as 1833. (Farish v. State, 4 Howard, Miss. 170.) Indeed the United States has gone further, and provided that any foreign subject may sue the United States, provided that his nation offers a reciprocal right of suit to citizens of the United States.

Even in England, the demand for justice, and the weariness of monarchical absurdities, has had its effect; .and, during the present generation, the old "petition of right" has ripened into what is practically a right to sue the Crown. One who now asserts a debt against the British Government has but to file a petition of right before the British Secretary of State, setting out his case, and asking leave to sue, and thereupon "it is the duty of the Queen to grant it, and the right of the subject to demand it." And the controversy then proceeds in Court against the Government, as if against an individual. (United States v. O'Keefe, 11 Wallace, 184; United States v. Lee, 106 United States, 238.)

In Kentucky, as we have seen, the first two Constitutions ordered that "The Federal Assembly shall direct by law in

what manner and in what Courts suits may be brought against the Commonwealth;" and the present Constitution provides that the Legislature "may" so direct. (Art. 8, Sec. 6.)

It is perhaps worthy of consideration, then, whether the interests of the State, as well as its duty to its citizens, do not require that this constitutional provision be executed, and the Courts of justice be given jurisdiction of suits against the State, as they have long had of suits by the State.

A statute similar to the Mississippi statute, giving jurisdiction to the Circuit Courts of equity or common law, with the ordinary appellate rights, would carry out this constitutional intent. And it is believed that the effect would be to insure justice, to purify the Legislature, and to save large sums of money to the State.

Supreme Court of California.

DEPARTMENT No. 2.

[Filed August 15, 1883.]

No. 8867.

PHELAN, RESPONDENT, v. TYLER ET AL., APPELLANTS.

JUDGMENT APPEAL-DEATH-JURISDICTION-PARTY.

After an appeal was

regularly taken and before the transcript was filed in the Supreme Court, one of the appellants died. The cause was subsequently argued, submitted, and judgment rendered by the Supreme Court, without suggestion of death or substitution of representative. Held, such judgment of the Supreme Court was not void for want of jurisdiction. ID.-PATENT-ESTOPPEL. The judgment in the former action is no less a bar by reason of its being rendered before a patent for the land had been issued. Both parties then claimed, and now claim, under the patentee, and their conflicting claims were in no way affected by the issuance of the patent. The question to be determined in the former action, as in the present one, is the same, viz.: Which party acquired the patentee's interest in the land? (Byers v. Neal, 43 Cal, 210.)

Appeal from Superior Court, Los Angeles County.
Thom & Stephens for respondent.

Bicknell & White, S. Haley and H. K. S. O'Melveny for appellants.

SHARPSTEIN, J., delivered the opinion of the Court:

The defendants are the legal representatives of William Standifer and John Dunlap, deceased, and the Court finds