Carson daily appeal. [volume] (Carson City, Nev.) 1873-1877, 1877-03-23

the action could he maintained. Noe
andoubssdfy II judgment had been 70.
covered against the Treasurer he you'd
have bsse personally Responsible for shs
money he had committed . breach OF
tbs iss.-ths Statute usder which ID
acted having besn dsclased uucop seitu.
iionsi. He would have b>es p.rsosaIIv
Responsible Tor the trespsss. But the
court sustained this bill for IN In junc,-
ton On The ground that the money vss
kept separate 10 his control end
could b identified as the specific
money seized. II IL said il
the decision that II might have been
rcsched ny Al action VI detinue. The
| Identical money could BE- reached In
the bands OF these parties. II the
money had besn mingled with the
moneys OF the State, aud bad NO lost
It's identity there IL nothing In the de-
cision To indicate what the effect Of the
Judgment against the treasurer would
have boon upon tho rights OF the
state. At all events there is nothing
70 Indicate that tho Judgmen. against
these parties would have been 4 bar
% An action by the State IL the State
had Afterwards sued the bank for the
amount Of the tax. OF course, IL the
State had afterwards sued tho Bank
Tor tho money. the adjudication son
the law would have bean authority
upon tho law OF the case. Blu: the
facts ] apprshend would have been
open 10 Denomination. There was
. question Of fact discussed In the case
~ TO whether the testimony was suffi-
ciest 70 show that the money went
iuto the hands OF tho second Treas.
urer, and the Court held that Il was.
But there In nothing to indicate that
The matter would have boon res adj.
jadicata In an action by the State
against the Bank. In this case. II thu
State cannot be sued, m IL cannot be.
! do not see how II IL possible that \
Judgment against one Of its officers
sued In his individual capacity can be
conclusive upon the rights of the
State, even though the state happens
70 DO Interested Ia the subject mater
Of the action and the Attorney Gen
orai In consequence OF that interest
appears for the officer and assumes 10
defend him ~ his attorney, or other
wise. Tho Court still falls TO get Iur ria.
diciion Of the State. Where the off,cer
IL sued In his individual capacity. and
tho State cannot be made party, | do
not SEQ how II IL possible that the
Judgment against the officer can be
binding upon tho state ~ q matter
adJudicnied between tho State and tbs
plantiff. A matter can DO res adIudi-
cata only between the parties to the
action and their privics. The case
read by counsel fer the plaintiff from
the 10Th Wallace, giving a synopsis
OF what was determined In Osborn W.
the United States Bank IL seems To
me- Indicates that there could DO no
vAlid judgment against the State. II
u said by the Court I'm deciding
who are parties 70 the suit. the Couri
VIII not look beyond the record
Making a State officer a party docs
not make the State a party, although
her law may have PROMPTED his
sction and tho State may stand behind
nun ~ the real party In interest. A
stAte can 10 made = party only by
shaping the bill expressly with thai
view, as where individuals or corpo-
rsiions are Intended to DO put In thai
relation tn the case. Davis '. GRAY.
~ Wall. 2f0.)
u In All action against 4 State off,cer
.his individual capacity for trespass
committed under color OF his ofiice.
the state cannot he considered q party
Tor the purpose OF defeating an action
on the ground that tho state cannot b.,
sued, u seeWs absurd 10 hold, that thu
state IL nevertheless a party for the
purpose OF having its rights copclu-
sively determined.
The case of landlord and tenant eitad
does not seem 10 iue TO be in point
because there the landlord Is liable 10
Do sued without his consent. IL be
appears and defends the suit Il il his
own act. lie substantially and voluu-
'ariiy becomes q party to the suit. and |
tho Court having Jurisdiction OF thc
subject matter, aud the party nv his
voluntary assumption Of tn. defeosa
u bound by tho result. Tho state
cannot be made party at all without
It's consent, and the assumed sppear.
Ance Of the District Attorney or Altor.
ney GENERAL without OF press sutboritv
OF law does not constitute a consent
J DO not think tho provision In m.
statute un regard 10 the duties of the
hitorney GENERALLY touches the oue..
lion. IL might DE the duty OF the Az.
lorney General to appear ard msha
he objection that the state can moi 10
sued. But II 10 q general law, snch A.
= ists IN most " not all the Statev de-
ming the duties ~ tho ATTORNEY Cen.
erai 10 appear and defend the intere-ts
d The Stale IN those cases where the
ssatc may be sued. Aud Il NAV I've
desirable that he should appear And
1eisnd oeficsr Of the stale, or evsn /
others, where the interests OF the Sisfa
may bc affected, although the decIsIon
against the parties 10 an sclion might
not lie IN adjudication conclusIve
iPon the rights Of the State. II NAV
% . short. easy, and II succcssfuI. con.
'eniens way Of protecting the states
interest and ~ such . proper course
or him 10 purSus. However this
nay be, II 10 clear that this section or
uc statute does not In terms, or by
my reasonable implication, authorize
private parties to sue the STATE, aud Ne
rave seen from tho authoritios cited.
hss where thesU u m authesity Of laS
OF sui0g the State On assumed author.
~ OF % Attorney OF the Stats u : q.
,cas does not confer Jurisdiction ovsr
he stats. = tostteri kis ssnuminr 10
'pIear fos the defsndauts In JsfScssl
y nrtions brought against private ~.
lee In their individual csfsscity ~
Dappeu TO BE- onicess Of the Htaie. Ana
Q which the Stale 10 not snd can mot -
neee parry, cannot confer Jurisdye-
ton 70 conclusivsly dsisrmine the
.euis 81 tho state - against The Ststs.