The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1904-02-02
RULE FAVORABLE
TO SOUTH DAKOTA
SUPREME COURT DECIDES ON
VALIDITY OF MORTGAGE ON
STOCK OF THE NORTH CARO-
LIMA RAILROAD COMPANY.

Washington February 1.-The case or
the state of South Dakota VS. the state
of North Carolina, today was decided
by the United States supreme court favor
able to South Dakota. The case involved
the validity of a mortgage on stock OF
the North Carolina Railroad company,
given by the state of North Carolina to
secure the payment of state bonds given
in aid of the road in 1867
The state of South Dakota holds ten
bonds of $1,000 each under gift from
Simon Schaefer and Samuel M. Schae-
fer of New York city, the amount due
ION coupons attached" being $4,000. The
opinion was rendered by Justice Brew
er and the decree of the court was en-
bodied in the following order:
"a decree therefore will be entered,
which after finding the amount due on
the bonds and coupons in the suit to be
$27 400. no interest being recoverable, and
that the same are secured by one hun
dred shares of the stock of the North
Carolina Railroad company belonging to
the state of North Carolina, directs that
the said state of North Carolina pay said
amount to the said state of South Da-
kota, and in default of such payment an
this court, directing him to sell at pub
lie all the interest of the state of North
Carolina in, and to 100 shares of the
capital stock of the North Carolina Rail-
road company, such sale to be made at
the east front door of the capital build
ing in this city, public notice to be given
of such sale by advertisement in some
daily paper published in the city of
Raleigh, N. c., and also in some daily
..rIaIi eI,o IL, at4x -1.t-
ton.
The chief justice and Justices White,
McKenna and Day united in a dissenting
opinion.
The decision of the court is considered
an important one and in making a depart
ure in ordering the sale of property in dis
pute in case of failure to satisfy a judg-
ment Justice Brewer said there was no
reasonable doubt of the validity of the
bonds and mortgages in controversy" nor
question respecting the title of South
Dakota to the bonds and he asserted
the jurisdiction of the court In cases
brought by one state against another
state to enforce property rights. He
added:
1--WE are confronted with the contention
that there is no power in this court to
enforce such a Judgment and that such
lack of power Is conclusive evidence that
the constitution there is an implied ex-
ception of actions brought to recover
money. The public property held by any
municipality city, county or state is ex-
emp from seizure upon execution because
it is held by such corporation. not as a
part of its private assets, but as trustee
for the public purposes.
There is in this case a mortgage of
property and the sale of that property
under foreclosure may satisfy the plain
tiffs claim. If that should be the result
there would be no necessity for a personal
judgment against the state Equity Is
satisfied by decree for a foreclosure and
sale of the mortgaged property. leaving
the question of n Judgment for any de-
ficency to be determined when if ever it
arises. And if, as we have often held
that this court has jurisdiction over one
state against another in transactions
there seems to be no doubt of the jurisdic-
ton to render a decree for the sale of
personal property"