# Sully v. Drennan/Opinion of the Court

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United States Supreme Court
113 U.S. 287
Sully v. Drennan
We think the order remanding the case was well made:
1. Mr. Sully is the only defendant who is not a citizen of Iowa. The other defendants, against whom relief is sought, are the railroad company, the trustees of Prairie township, and the treasurer of the county. All of these are proper parties, and are necessary parties, against whom positive and affirmative relief is sought. Without deciding whether the railroad company could assign the right to sue for and enforce these taxes to Mr. Sully, it is sufficient to say that the assignment did not carry that right to him discharged of the equities between the company and the tax-payers, as if they had been negotiable bonds. To any suit, therefore, to invalidate this tax the company was a necessary party. It is especially so in equity, where the matter set up to defeat the tax, as in this case, was the failure of the company to comply with the conditions of the vote, and its false and fraudulent representations by which the vote was secured. In such a suit the company has a right to defend against these allegations, and the plaintiffs have a right that the company shall be bound by the judgment in the case. The interest of Sully and the company in this controversy are the same, and are both opposed to the interests of plaintiffs. This railroad company is organized under the laws of Iowa, and is a citizen of that state as well as plaintiffs.
2. The township trustees are also citizens of Iowa. These are not nominal parties, and their interest is not identical with that of plaintiffs. What may be their personal wishes is not known, nor is it material. They are sued in regard to their official position, to restrain them in the threatened exercise of their official authority, to the prejudice of plaintiffs. The exercise of this power lies at the root of plaintiffs' case, and of defendants' rights. The statute of Iowa which authorizes this vote by a township declares that the money collected under it shall be paid out by the county treasurer 'at any time after the trustees of the township, or a majority of them, shall have certified to the county treasurer that the conditions required of the railroad and set forth in the notice for the special election, at which the tax was voted, have been complied with.' Until this is done, no right to the money accrues to the railroad company, or any one else. The act here required of the trustees is not a mere ministerial one. It requires them to ascertain and decide what was required of the company by the notice, with the meaning of its terms, and, when they have construed these, to ascertain, as a matter of fact, whether they have been complied with.
So important is this action to Sully and to the railroad company, that the bill alleges they are seeking to drive them to make the certificate by threats of expensive litigation, and it is said, in the brief, that Sully has resorted already to a writ of mandamus. Are these trustees nominal parties? Are they, in their official action, on the same side of this controversy with plaintiffs? If they were, there would be no necessity to sue out an injunction to prevent them from issuing this certificate. If there is any nominal party, or any party unnecessary to the relief sought by plaintiffs, it is Sully, for, if plaintiffs can procure a decree enjoining the trustees from making that certificate, their relief is sufficient, if not complete. So of the treasurer, Warren, who, so far from siding with plaintiffs in the suit, has joined Sully and the railroad company in a demurrer to the bill, and in his answer denies the merits.
The case of Harter v. Kernochan, 103 U.S. 562, is cited in opposition to this view of the case. But in that case negotiable bonds had been issued and were in the hands of Kernochan as a bona fide holder. The case between him and the township of Harter was a very different one from the present case. In that case the whole right was vested in Kernochan, and the whole matter in controversy could be determined between him and the township. In the suit as brought in the state court in that case the officers who were served with the writ made default, and a notice by publication against the unknown owner of the bonds being unanswered, a default was taken against them, and a decree made enjoining all proceedings to collect the bonds. Under a statutory provision, Kernochan came in due time, and, alleging himself to be a holder of the bonds, the default as to the unknown owner was set aside, and he was permitted to answer. As to the other defendants, they were now out of the case, and Kernochan being a citizen of another state, removed the case into the circuit court of the United States. The difference between the two cases is obvious.
The judgment of the circuit court, remanding the case, is affirmed.

## Notes

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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