The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1934-06-08
Dismissal Asked

To each of 0le bills Of COM
plant the United States filed mo-
tions to dismiss and the causes
came on for hearing before Mr..
Justice O'Donoghue on these mo-
tions.
The Governments contentious
being that while these suits are
nominally directed against James
A. Farley, an individual, the bills
of complaint concede that he is
now and since March 4, 1888, has
been Postmaster General of the
United States, and the acts COM
planned of, to-wit, the annulment
of the air-mail contracts and the
alleged threat to prevent plain
tiffs from bidding, are Of neces-
sity acts of Farley as Postmaster
General and not as an individual.
If Farley were not Postmaster
General, any such acts by him
would not concern plaintiffs, and
they derive their substance only
by virtue of the fact that he is
Postmaster General, and are acts
in connection with the administra-
ton of the Post Office Depart
ment. Farley has no individual
interest in the annulment of the
contracts or in the bidding by the
plaintiff. The United States is
therefore the real party affected,
and is the party against which a
decree for the plaintiffs would
operate; and the decree would in
effect be one of specific perform
ance against the United States to
require it to perform the contract
on which plaintiffs rely, and the
remedy, though in form restric-
tive against an officer, is actually
mandatory against the sovereign.
This question has been before
this court, the Court of Appeals,
and the Supreme Court on many
occasions. In Minnesota VS.. Hitch.
cock, 1875 U. S. 373, the State OF
Minnesota brought an original suit
in the Supreme Court of the
United States to enjoin the Secre-
tary of the Interior and the Com
missioner of the General Land Or
flee from selling any of Sections
Is and SO in that State. The
Supreme Court held that the suit,
while nominally against the Of
ficers named as defendants, was
actually suit against the United
States, and that the question of
whether the United States is a
party to a controversy is not to
be determined by the nominal
party of the record, but by the
question of the effect of the judg-
ment which can be entered. the
court using the following pertinent
language:
Nov, the legal title to these
lands is in the United States. The
officers named as defendants have
no interest in the lands Or the
proceeds thereof. The United
States is proposing to sell them.
This suit seeks to restrain the
United States from such sale, to
divest the Government of it's title
and vest it in the State. The
United States is therefore the real
party affected by the Judgment
and against which in fact it will
operate, and the officers have no
pecuniary interest in the matter.
If whether a suit is one against
a state is to be determined, not
by the fact of the party named as
defendant on the record, but by
the result of the judgment or de.
cree which may be entered, the
same rule must apply to the United
States. The question whether the
United States is. party to a con,
troverSy is not determined by the
merely nominal party on the rec.
ord. but by the question of the
effect of the Judgment or decree
which can be entered"