Savannah morning news. [volume] (Savannah) 1868-1887, 1883-12-04
CUNNINGHAM LOST AGAIN
THE STATE NOT HELD FOR IT'S
ENDORSEMENT.

Brief Resume of the Litigation and
the Events Which Precipitated 1.-THE
Present Dismissal on the Same Grounds
the Previous One.
WASHINGTON, Dec. 3.-In the Supreme
Court to-day a decision was rendered in
case No. II, George A. Cunningham VS..
the Macon and Brunswick Railroad Com
pany ct al, an appeal from the Circuit
Court of the United States for the
Southern District of Georgia. This was a
suit upon a series of bonds of the Macon
and Brunswick Railroad Company,
amounting in the aggregate to $50, 900,
which had been indOrsed by the Governor
of Georgia under authority of the State
Legislature in 1873. The railroad company
failed, and the Governor in order to secure
the interest of the State created by its in
dOrsement of these and other similar
bonds, seized the road. In 1875 the State,
by an act of its Legislature, repudiated
It's Endorsement on the 100000 Of bonds
here IN controversy, but confirmed by
purchase its right to the road
and made provision for the pay
ment of another earlier series o.
bonds which also bore its Endorsement.
Ihe present suit was brought by one of
the holders of the $500, 900 series of bonds
against the Governor and Treasurer of
the State and others to test the question
OF the States liability and to obtain re-
lief. The bill was dismissd in the court
below on the ground that it was virtually
a suit against the State and the State
was not and could not be made a
party to it. This court comedies
IN that view of the case, and says that
whenever it can be clearly seen that the
IG m ir1f i. 80 l.,
the court, according to the rules which
govern its procedure, to grant the relief
sought, the court will refuse to take
jurisdiction. In this case the State of
Georgia is an indispensable party. 1t is
III fact the only proper defendant. No
one sued has any personal interest in the
matter or any official authority to grant
the relief asked. No foreclosure suit can
be sustained without the State, because
she has legal title to the property, and
the purchaser, under the foreclosure
decree, would get no title in the absence
OF the State. The State is in actual
possession of the property, and the court
can deliver no possession to the pur-
chaser. The entire interest adverse to
the plaintiff is the interest of the State of
Georgia In property of which she has
both the title and possession. On the
hypothesis that the foreclosure by the Gov
ernor was valid the trust asserted by the
plaintiff is vested in the State as trus-
tee and not in any of the officers sued.
No money decree can be rendered against
the State, nor against its officers nor any
decree against the Treasurer, as settled
In Louisiana VS.. James. If any branch
of the State Government has the power to
give the plaintiff relief it is the Legisla-
ture. Why is it not sued as a
body, or its members by mandamus COM
PEELED, themselves, to provide means to
pay the States Endorsement? The absurd
ity of this proposition shows the impOssi-
bility of compelling the State to pay its
debts by judicial process. The decree Of
the Circuit Court is affirmed. The opin-
ion is by Justice Miller-Justices Harlan
and Field dissenting.