Stanley v. Schwalby (147 U.S. 508)/Opinion of the Court
In The Siren, 7 Wall. 152, Mr. Justice Field, who spoke for the court, in adverting to the familiar rule of the common law that the sovereign cannot be sued in his own courts without his consent, and the ground upon which the rule rested, said: 'This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of congress. Such is the language of this court in U.S. v. Clarke, 8 Pet. 444. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly and suits against its property.'

If, then, this suit had been directly against the United States, or the property of the United States, it could not have been maintained; and it is only upon the proposition that it was brought, not against the United States, but against the officers of the United States as individuals, although holding possession of the property under their authority, and as belonging to them, that it proceeded to judgment. The district attorney of the United States, acting, as he alleged, 'by and through instructions from the attorney general of the United States,' filed certain pleas on behalf of the United States, among others, of limitation and for allowance for valuable improvements. No question seems to have arisen in the state district court as to the authority of the district attorney to do this. The court ruled that the United States could not plead the statutes of limitation, and therefore struck those pleas out, but sustained the plea claiming an allowance for improvements, and rendered judgment in favor of the United States for the value thereof. The supreme court of Texas held that, as the instructions of the attorney general were not found in the record, and no act of congress empowering him to make the United States a party, either plaintiff or defendant, to an action in a state court was referred to, the United States could not be regarded as a party, and therefore reversed the judgment below, and rendered judgment dismissing the United States from the case. The error assigned to this action of the supreme court has not been pressed by counsel for the government, and we are not called upon to express any opinion upon it. We should remark, however, that from a very early period it has been held that even where the United States is not made technically a party under the authority of an act of congress, yet, where the property of the government is concerned, it is proper for the attorney for the United States to intervene by way of suggestion, and in such case, if the suit be not stayed altogether, the court will adjust its judgment according to the rights disclosed on the part of the government thus intervening. Such was the leading case of The Exchange, 7 Cranch, 116, 147, where the public armed vessel of a foreign sovereign having been libeled in a court of admiralty by citizens of the United States to whom she had belonged, and from whom she had been forcibly taken in a foreign port by his order, the district attorney filed a suggestion stating the facts, and, the circuit court having entered a decree for libelants disregarding the suggestion, this court, upon an appeal taken by the attorney of the United States, reversed the decree and dismissed the libel, and Mr. Chief Justice Marshall, in delivering the opinion of the court, said: 'There seems to be a necessity for admitting that the fact might be disclosed to the court by the suggestion of the attorney for the United States.'

Probably the instructions here were that the district attorney should make defense for Gen. Stanley and his fellow officers, and, in addition, he thought it wise to bring the rights of the United States to the attention of the court by application in their name.

The argument for the plaintiffs in error is confined to the disposition of the pleas setting up the statutes of limitation, in respect of which the decision did not turn upon the question whether on the facts the bar was or was not complete, but upon the view that, although, as between individuals, a perfect defense might have been made out, it could not be availed of by or under the United States.

By the Texas statute relied on it was provided that every suit to recover real estate 'as against any person in peaceable and adverse possession thereof under title or color of title shall be instituted within three years next after the cause of action shall have accrued, and not afterwards.' 'Title' was defined to mean a regular chain of transfer from or under the sovereignty of the soil, and 'color of title' to mean a consecutive chain of such transfer down to the person in possession, without being regular; as if one or more of the muniments were not registered, or not duly registered. 'Peaceable possession' was described as 'such as is continuous, and not interrupted by adverse suit to recover the estate,' and 'adverse possession' was defined as 'an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.' The statute also provided that five years' peaceable and adverse possession of real estate, 'cultivating, using, or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered,' should be a bar; and that ten years' like peaceable and adverse possession, with cultivation, use, or enjoyment, should have a like result; and also that, whenever in any case the action of a person for the recovery of real estate was barred, the person having such peaceable and adverse possession should 'be held to have full title, precluding all claims.' 2 Sayles' Civil St. (Tex.) p. 109, tit. 62, c. 1.

The supreme court of Texas was of opinion that the bar of the statute could not be interposed by or under the United States, because the United States are not bound by such statutes, as well as because no action could be brought against the United States.

The rule that the United States are not bound, and the reason for it, are thus given in U.S. v. Nashville Ry. Co., 118 U.S. 120, 125, 6 Sup. Ct. Rep. 1006: 'It is settled beyond doubt or controversy, upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided, that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations, unless congress has clearly manifested its intention that they should be so bound.' And this doctrine was declared by the court in U.S. v. Insley, 130 U.S. 263, 266, 9 Sup. Ct. Rep. 485, to be 'applicable with equal force, not only to the question of the statute of limitations in a suit of law, but also to the question of laches in a suit in equity.'

To the same effect, Mr. Justice Story, in U.S. v. Hoar, 2 Mason, 311, said: 'The true reason, indeed, why the law has determined that there can be no negligence or laches imputed to the crown, and therefore no delay should bar its right, (though sometimes asserted to be because the king is alwasy busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects,-1 Bl. Comm. 247,) is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss by the negligence of public officers. And though this is sometimes called a 'prerogative right,' it is in fact nothing more than a reservation or exception, introduced for the public benefit, and equally applicable to all governments. * * * But, independently of any doctrine founded on the notion of prerogative, the same construction of statutes of this sort ought to prevail, founded upon the legislative intention. Where the government is not expressly or by necessary implication included, it ought to be clear, from the nature of the mischiefs to be redressed or the language used, that the government itself was in contemplation of the legislature, before a court of law will be authorized to put such an interpretation upon any statute. In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens, and in most cases the reasoning applicable to them applies with very different, and often contrary, force to the government itself.'

But, as observed by Mr. Justice Strong, delivering the opinion of the court in Savings Bank v. U.S., 19 Wall. 227, 239, while the king is not bound by any act of parliament unless he be named therein by special and particular words, he may take the benefit of any particular act though not named; and he adds that the rule thus settled as to the British crown is equally applicable to this government, and that so much of the royal prerogative as belonged to the king in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.

The general rule is stated in Chitty on the Law of the Prerogatives of the Crown, 382, clearly to be 'that, though the king may avail himself of the provisions of any acts of parliament, he is not bound by such as do not particularly and expressly mention him; for it is agreed in all our books that the king shall take benefit of any act, although he be not named.' Case of a Fine, 7 Coke, 32a; Magdalen College Case, 11 Coke, 68b; Queen & Buckberd's Case, 1 Leon. 150; 1 Bl. Comm. 262.

We think there is nothing to the contrary in Rustomjee v. Queen, 1 Q. B. Div. 487, where, by a treaty between the queen of England and the emperor of China, the emperor had paid to the British government a sum of money on account of debts due to British subjects from certain Chinese merchants, who had become insolvent, and it was held that a petition of right would not lie by one of the British merchants to obtain payment of a sum of money alleged to be due to him from one of the Chinese merchants, and that the statute of limitations did not apply to a petition of right. The political trust with which her majesty was charged in respect of her own subjects afforded no basis for the prosecution in a court of a claim as against a debtor or trustee, and, of course, limitation had no application. Indeed, the form of proceeding by petition of right, even as simplified and regulated by 23 & 24 Vict. c. 34, is so far variant from proceedings between subject and subject as to give adjudications thereunder but slight, if any, bearing upon the question under discussion. Tobin v. Queen, 14 C. B. (N. S.) 505.

It was in view of the ancient rule and its derivation that the supreme court of Wisconsin, in Baxter v. State, 10 Wis. 454, held that while the statute cannot be set up as a defense to an action by the government, this rule, being founded upon the public good and the protection and preservation of the public interest, instead of furnishing any support for the position that as a defendant the state could not have the benefit of the statute, would fully sustain the opposite conclusion.

And so in People v. Gilbert, 18 Johns. 227, it was pointed out by way of illustration that the same rule of construction applied to the statute concerning costs which the state may recover, though not obliged to pay them, because not included in the general terms of the statute.

It is obvious that the ground of the exemption of governments from statutory bars or the consequences of laches has no existence in the instance of individuals, and we think the proposition cannot be maintained that because a government is not bound by statutes of limitation, therefore the citizen cannot be bound as between himself and the government.

Of course, the United States were not bound by the laws of the state, yet the word 'person' in the statute would include them as a body politic and corporate. Sayles' Civil St. art. 3140; Martin v. State, 24 Tex. 68.

This brings us to consider the objection that the United States cannot obtain or be protected in title through adverse possession, unless an action would lie against them for the recovery of the property. It by no means follows that because an action could not be brought in a court of justice, therefore possession might not be regarded as adverse, so as to ripen into title. In the case of a government, protest against the occupancy and application for redress in the proper quarter would seem to be quite as potential in destroying the presumption of the right to possession, or of the abandonment of his claim by another, when an action cannot be brought, as the action itself when it can.

In Comegys v. Vasse, 1 Pet. 193, 216, quoted from and applied by Mr. Justice Lamar in Williams v. Heard, 140 U.S. 529, 543, 11 Sup. Ct. Rep. 885, it was remarked by Mr. Justice Story: 'It is not universally, though it may ordinarily be one test of right, that it may be enforced in a court of justice. Claims and debts due from a sovereign are not ordinarily capable of being so enforced. Neither the king of Great Britain nor the government of the United States is suable in the ordinary courts of justice for debts due by either. Yet who will doubt that such debts are rights?' However, the very institution of this suit shows, as the fact is, that these claimants could have brought such an action as this at any time between the date when the United States took possession and the filing of this petition.

As stated by Mr. Justice Miller in Cunningham v. Railroad Co., 109 U.S. 446, 451, 3 Sup. Ct. Rep. 292, 609, it may be accepted as unquestioned that neither the United States nor a state can be sued as defendant in any court in his country without their consent, except in the limited class of cases in which a state may be made a party in this court by virtue of the original jurisdiction conferred by the constitution. Accordingly, whenever it can be clearly seen that a state is an indispensable party to enable a court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in many cases the courts can see will be defeated by an extreme extension of this principle, they have in some instances gone a long way in holding the state not to be a necessary party, though its interests may be more or less affected by the decision. Among these cases are those where an individual is sued in tort for some act injurious to another in regard to person or property, in which his defense is that he has acted under the orders of the government.

In these cases he is not sued as an officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts the authority of such officer. To make out that defense he must show that his authority was sufficient in law to protect him. In this class is included U.S. v. Lee, 106 U.S. 196, 1 Sup. Ct. Rep. 240, where the action of ejectment was held to be in its essential character an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment, and the defendants Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and therefore insufficient as a defense.

In such a case the validity of an authority exercised under the United States is drawn in question, and, where the final judgment or decree in the highest court of a state in which a decision could be had is against its validity, jurisdiction exists in this court to review that decision on writ of error.

The case before us is an action of trespass to try title, brought against officers of the United States, exercising an authority under the United States in holding possession of the property in controversy. Laying out of view the intervention by the district attorney of the United States in the direction of making the United States a party, and considering the case in its relation to the defenses interposed by Gen. Stanley and his fellow officers, we are unable to perceive why the statutory bar, if complete, could not be availed of. Although not bound by statutes of limitation, the United States, as we have seen, were entitled to take the benefit of them, and, inasmuch as an action could have been brought at any time after adverse possession was taken, against the agents of the government through whom that was done, and by whom it was retained, the objection cannot be raised against them that the statute could not run because of inability to sue. The alleged trespass was committed by the defendants as the servants of the United States, and by their command; yet, if they showed the requisite possession in themselves as individuals, though in fact for the United States, under whose authority they were acting, the defense was made out. Agents when treated as principals may rely upon the protection of the statute. Ware v. Galveston City Co., 111 U.S. 170, 4 Sup. Ct. Rep. 337.

In any view, they were not mere trespassers, and, if subject to suit during the statutory period of peaceable and adverse possession, they could not, after its expiration, be found guilty of an unlawful withholding from the original owner. The tort, which must be the gist of the action in order to render it maintainable against the officers of the United States as individuals, could not be predicated of them under such circumstances.

We refrain from any consideration of the case upon its merits, but, for the reasons indicated, reverse the judgment, and remand the cause for further proceedings not inconsistent with this opinion.

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