# Barney v. Baltimore City/Dissent Clifford

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* Dissenting Opinion Clifford
United States Supreme Court
73 U.S. 280
Barney v. Baltimore City
Mr. Justice CLIFFORD, dissenting.
Unable to concur in the opinion of the court, I will proceed to state very briefly the reasons of my dissent.
Consent, I agree, cannot give jurisdiction in a case where it is not conferred by the Constitution and the laws of Congress, but the judicial power as described in the Constitution, extends in express terms to controversies between citizens of different States.
By the eleventh section of the Judiciary Act it is also provided that the Circuit Courts shall have exclusive cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the suit is between a citizen of the State where the suit is brought and a citizen of another State.
Complainant is a citizen of Delaware, and the respondents are citizens of Maryland, which brings the case within the express words of the Judiciary Act and of the Constitution.
Express decision of this court in Hagan v. Walker et al., is that since the act of the twenty-eighth of February, 1839, it does not defeat the jurisdiction of the court in a suit in equity, that a person named as defendant is not an inhabitant of, or found within, the district where the suit is brought.
The court may still adjudicate between the parties who are properly before it, and the rule is that the absent parties are not to be concluded or affected by the decree. Cases may arise, say the court, in which the court cannot adjudicate between the parties who are regularly before it, for the reason that it cannot bind those who are absent, as where relief cannot be given without taking an account between an absent party and one before the court. Defect of parties in such a case does not defeat the jurisdiction, strictly speaking, yet the court will make no decree in favor of the complainant.
Non-joinder of an absent party in such a case, not only does not defeat the jurisdiction of the court, but it does not raise any such question under the Constitution and the law of Congress, because the parties before the court being citizens of different States the jurisdiction of the court is undeniable. Relief will not be granted in such a case where it appears that the interests of absent parties will be injuriously affected; but the question is not one whether a Federal court has jurisdiction to hear and determine the cause. On the contrary, it is a question of equity practice as to parties, common to all courts exercising equity powers.
Such an objection is never allowed to prevail if the court can protect the interest of the absent party, or where it appears in the record that due notice was given to him, and that he has formally waived the objection. The maxim volenti non fit injuria applies in such a case, and consequently, the difficulty may be remedied by a conveyance or stipulation appearing in the record. Courts of equity refuse to grant relief in such cases, not because they have not jurisdiction, but only because the right of absent parties interested in the subject-matter may be injuriously affected. Hence the rule is that, if the court can grant relief without affecting such rights, or can protect those rights in the decree, the court will not dismiss the suit, and the same rule is applicable if it appears in the record that the absent parties have full knowledge of the controversy and that they have in due form of law waived all objections to the prosecution of the suit. Unless these views are correct, then it is clear that the act of the twenty-eighth of February, 1839, is unconstitutional and void, as no one will pretend that Congress can extend the jurisdiction of the Federal courts beyond the power conferred in the Constitution. Validity of that act of Cong ess is admitted in the opinion of the majority of the court, and it is also admitted that the decision of this court in the case of Inbush v. Farwell is correct. Direct decision in that case was, that the jurisdiction of the Federal courts in a common law suit is not defeated by the suggestion that other parties are jointly liable with the defendants, provided it appears that such other parties are out of the jurisdiction of the court.
Under the Constitution and the Judiciary Act the conditions of jurisdiction are the same in a suit in equity as at common law, and it is not possible to distinguish the one from the other without adding language to those provisions which neither the framers of the Constitution nor Congress ever employed.
For these reasons I am of the opinion that the Circuit Court had jurisdiction of the case, but the majority of the court are of a different opinion, which renders it unnecessary to enter upon the consideration of the merits.
The CHIEF JUSTICE and FIELD, J., also dissented.

## Notes

* ↑ Art. 3, sec. 2.
* ↑ 1 Stat. at Large, 78.
* ↑ 14 Howard, 36.
* ↑ 5 Stat. at Large, 321.
* ↑ 1 Black, 571.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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