Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1911-05-08
KENNEbEC CASE.
The Law Court Overru|es
Plaintiffs Exceptions
In Case Involving The National
Home as Trustee.
Cannot Be Held Under the Laws oil
State OF Maine.

The law court Saturday handed
down a rescript in the Kennebec coun-
ty case of Brooks Hardware Co, vs..
]. b. Greer and National Home for
Disa bled Volunteer Soldiers, alleged
trustee, everything the exceptions of
the plaintiff and ruling that the Home
could not be held as trustee as it
did not have it's place of business
within the State" within the mean
ing of the State statute.
The original suit was brought by
the Brooks Hardware Co. OF Augusta
against j. B. Greer of Pittshurg. Pa,
in the sum of $947 20 for supplies fur
nished. The National Home was made
trustee on the ground that 1t was
owing money to Greer under his con-
tract with the Home to construct
sewer system. The case vas argued
before Associate Justice Cornish at
the October 1909 term of the Kennebee
county supreme court. The defence
took the position that the Home was
not under the United States statutes
a corporation and even if il were, it
was merely distributing agency of
grounds of public policy not subject
to trustee process. The plaintiff con-
tended that the Act of Congress Gre
ating the National Home created il
corporation with power to sue and
be sued and to contract for govern
mSnt purposes in its own name, as il
did with Mr.. Greer; not acting as a
mere distributing agent Of the gov
eminent in the matter Of this con-
tract, but might have been sued by
MI Greer upon the contract and hence
held as trustee on this suit. The
question of jurisdiction of the State
court as against the United States
court was also argued by counsel.
Justice Cornish ruled that the Home
was not liable as trustee and dis
missed the case with costs. The case
came to the law court on plaintiffs
exceptions to this ruling and was
argued at the December term 1909 at
Augusta. Williamson & Burleigh were
counsel for the plaintiff and United
States District Attorney Robert 7.
Whiteheuse for the defendant.
The full text of the law court re-
script, Which was drawn by Asso-
ciate Justice King is as follows:
kennebec, SIS. Brooks Hardware Co. vs..
) -; Greer and National Home for Dis
abIed Volunteer Soldiers, alleged Trustee.
Rescript King, j
The question presented in this case is
whether the National Home for Disabled
volunteer Soldiers is subject to trustee
process in an action brought in the State
court 1t was established under the pro-
visions of an act of Congress, approved
March p. 1866. and now embodied in r.
D {; s. See. 1925 ct seq. Section 1926 is
as follows:
justice, and such. other persons as have
been or from time to time may be assoc
Grated with them, shall constitute a board
OF managers of an establishment for the
care and relief of the disabled volunteers
or the United States army, to be known
by the name and style of The National
Home for Disabled Volunteer Soldiers,
and have perpetual succession with DOW
ers to take, hold and convey real and
personal property, establish a common
seal, and to sue and be sued in courts of
law and equity; and to make bylaws.
rules, and regulations. not inconsistent
with law, for carrying on the business
and government of the home. and to affiX
thereto.
From consideration of the provisions
OF the act of Congress of March q. 1866
which created and provided for the per-
petual maintenance of the Home as a
great national charity to be supported
py appropriations from the national treas
ury, and the consideration of the many
acts of Congress which have
explicitly defined the purposes, limited
hte powers. regulated the management
ana controlled the expenditures of the
Home, II Is the opinion of the court that
the essential character and functions of
this establishment are those of an
agency-dn instrumentaltty of the United
states government
The application of the well settled prin-
ciple that the sovereign cannot be sued
is OF course, necessarily predicated upon
the condition that the sovereign has not
consented to be sued, which 1t may do
And the plaintiff contends that if the
Home is to be regarded as an agency or
instrumentalty of the United States, it
is nevertheless subject to this trustee
process. which is in effect suit against
ii, because the act which created it ex-
pressly provided that it could sue and be
sued in courts of law and equity
Whether this provision of the act that
the Home may be sued is to be construed
as a consent by Congress that this gov
ernmental agency may be sued in the
State courts. and. if so, upon what causes
of action, is an inquiry not necessary to
be decided in the determination of the
question now before the court. for the
plaintiff regards the alleged trustee as
an Independent corporation, and as such
seeks to charge 1t as trustee of the prin-
cipal defendant
The statute Of this State authorizing
corporations to he summoned as trustees
provided that 'all domestic corporations,