dissenting. The action below was brought to recover certain personal property claimed by the plaintiff, and alleged by him to be in the wrongful possession of the defendants, as commissioners of the sinking fund, upon whom a demand had been made and refused. The defendants admitted in substance that they, as said commissioners, had control of the property sued for, and they claimed, that the title to said property was in the State; that they held as trustees for the State, and were not authorized to deliver it to the plaintiff until the rights and equities of the State in the premises should be judi*429cially determined, setting up a counter-claim against the plaintiff for some $3,000. Judgment below was for the plaintiff on the merits. On appeal to this court by the defendants, for the first time a question of jurisdiction was raised to determine which a re-argument was ordered on the single point, to wit: whether or not the action below, though not in form, was yet in substance and fact an action against the State. Upon this re-argument my brethren having determined that the action is against the State, have adjudged that the complaint be dismissed for the want of jurisdiction. In this opinion I have not been able to concur for the reasons following:
I do not deny the legal proposition that the State cannot be sued in the courts of this State, except by its own consent. This doctrine is too well settled and too firmly established to intimate even a doubt in reference thereto. And I fully concur in its correctness. But I take issue with the majority on the proposition that the State has been sued, or is in any way a party to the action below, and I therefore fail to seo the applicability to the case of the principle that the State cannot be sued, upon which the complaint has been ordered to be dismissed.
The question, then, is, was the action below against the State in such sense as on that account it should be dismissed, the State not having consented to be sued ? It is nowhere contended that the State is named as a party on the record, nor has there been any attempt to summon her by the service of any process, nor has she voluntarily appeared as one of the defendants. It is said, however, that the State may still be regarded as a party to the issue involved, to wit: title to the property in question is really between the plaintiff and her, notwithstanding she is not named in the record, and no effort has been made by the plaintiff to make her a party. The only cases where this question has been raised are certain cases heard and decided in the Supreme Court of the United States, and I concur with the statement in the majority opinion that these cases are not entirely consistent with each other.
In Osborn v. The U. S. Bank, 9 Wheat., 739, the bank instituted proceedings against Osborn, auditor of the State of Ohio, to restrain him from enforcing an act of the State of Ohio against the *430bank in reference to collecting certain taxes imposed by the act. One of the positions taken in the case was: “That in fact the bill was against the State, and as such the Circuit Court had no jurisdiction.” This point (which is the exact point here) seems to have been fully considered by the Supreme Court on appeal. It was conceded on / all sides that the defendants on the record had no personal interest whatever in the suit, and that their connection therewith was simply official as agents of the State of Ohio, and that the State alone was really interested in the result. With this fact admitted. Chief Justice Marshall, in delivering the opinion of the court, after fully discussing the question whether the jurisdiction of the court as to the parties depended upon the character of those whose interest is litigated, or of those who are parties to the record, concludes the discussion of that branch of the case, with the following emphatic declaration: “But the principle seems too well established to require that more time should be devoted to it. It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named on the record.” And further: “The State not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants, whether they are to be considered as having a real interest, or as being only nominal parties.” This case was decided by the Supreme Court of the United States in- 1824, the precise question involved here being involved there. The court held that the State of Ohio not being named as a party on the record was no party to the suit, although her rights and interests were alone involved, and being no such party, the jurisdiction of the court was not ousted. Therefore the case proceeded to judgment against Osborn, the auditor.
In Davis v. Gray, 16 Wall., decided in 1872, the doctrine of Osborn v. The Bank of the United States was distinctly affirmed and the principles re-declai'ed in terms as follows, to wit: “That where the State is concerned the State should be made a party if it can be done. That it cannot be done is a sufficient reason *431for the omission to do it, and the case may proceed to decree against her officers in all respects as if she were a party to the record;” that in deciding who are parties to the suit, the court will not look beyond the record; that making a State officer a party does not make the State a party, although her law prompt his action, and she may stand behind him as the real party in interest; that a State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case.” And Mr. Justice Swayne, in delivering the opinion, refers to Dodge v. Woolsey, 18 How., 331; The State Bank of Ohio v. Knoop, 16 Id., 369; The Jefferson Branch Bank v. Skelly, 1 Black, 436; Ohio Life & Trust Co. v. Debolt, 16 How., 432; and the Mechanics & Traders Bank v. Debolt, 18 Id., 380, as proceeding upon the same principles and controlled by the authority of Osborn v. U. S. Bank, supra, with respect to the jurisdictional question arising in each of those cases as to the defendants.
It is said, however, in the majority opinion, that these cases are inconsistent with the recent cases from the Supreme Court of the United States, and especially with the cases of Louisiana v. Jumel, 107 U. S., 711; Cunningham v. Macon & Brunswick R. R. Co., 109 Id., 440; and Hagood v. Southern, 117 Id., 52. It may be that these latter cases, especially Louisiana v. Jumel, and Cunningham v. Macon & Brunswick R. R. Co., cannot be jhlly harmonized with the cases referred to above, but those older cases were not overruled by these latter ones. On the contrary, in the opinion of the court in each of these latter cases the former >nes, especially Osborn v. Bank and Davis v. Gray, the two .eading cases on that line, were recognized and the principle hich governed therein distinguished from said latter cases, leaving both classes standing and of force. In Hagood v. Southern, supra, Mr. Justice Mathews, after discussing the principle .pplied in a class of cases to which Osborn v. The Bank belonged, as compared with the case then before the court, said: “A broad line of demarcation separates from such cases as the present (Hagood v. Southern) in which the decrees require, by affirmative official action on the part of the defendants, the performance of an obligation which belongs to the State in its political capa*432city — those in which actions at law or suits in equity are maintained against defendants who, while claiming to act as officers of the State, violate and invade the personal and property rights of the plaintiff under color of authority, unconstitutional and void,” &c.
With the cases from the Supreme Court of the United States then standing in this way, I do not think it can be successfully claimed that that court has established the principle even for its own government, that where the issue involved is one between a State alone and the plaintiff, the defendants being only agents and officers of the State and asserting the rights of the State, that the State in every such case must be regarded as a party, thereby ousting the jurisdiction of the court, although she is not named on the record as a party. On the contrary, I think that each case as to this question must depend upon its own facts, the fact of the State being held a party or not, depending upon the further fact, whether the suit is intended, on the one hand, to enforce by affirmative official action on the part of the defendants the performance of an obligation which belongs to the State in its political capacity, or, on the other, is to redress or restrain the violation of some personal or property right, inflicted or threatened under the color of official authority. If the case belongs to the first class, then under the principle of Louisiana v. Jumel, Cunningham v. Macon & Brunswick R. R. Co., and Hagood v. Southern, supra, the Supreme Court of the United States no doubt would hold, that the State, though not named as a party, would still be held to be a party sufficiently so to oust the jurisdiction. But if it belonged to the second class, under the authority of Osborn v. The United States Bank, and Davis v. Gray, supra, it would allow the action to proceed, at least to the point of determining whether the defendants were rightfully acting under and by the authority of the State; or, rather, whether the right asserted by them for the State rested upon a sound foundation.
In my opinion, the case below belonged to this latter class. It was an action to redress an alleged wrong inflicted upon the property rights of the plaintiff under the color of official authority, and the State not being named as a party, nor any process *433prayed, or attempted against her, she is no party — certainly not in such sense as to demand a dismissal of the complaint for the want of jurisdiction.
The majority opinion, however, is based more especially upon the case of Cunningham v. The Macon & Brunswick R. R. Co., supra, in which Mr. Justice Miller in delivering the opinion of the court, after laying down the doctrine: ‘‘That wherever it can be clearly seen that the State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse the jurisdiction,” which he says is a conceded principle in all the cases; and after adding, “that the courts have gone a long way in some instances, in holding the State not to be a necessary party, though her interest may be more or less affected,” proceeds to classify the cases in which this has been done, dividing the cases into the three classes mentioned in the majority opinion. My brethren adopt this classification, and they undertake to show that the case at bar does not belong to either of these classes. This, it appears to me, is changing the question before the court. The question before us is not whether the court can proceed to judgment without the State being a party, but it is whether the State is a party. The question whether we can pronounce judgment against the defendants in the absence of the State, appears to me to be a very different question from whether the State is a party. In the latter case, which is the question that has been discussed before us, if the State is held a party, then the jurisdiction is gone at once without further argument or investigation; but in the former case, the merits are somewhat involved, and must be examined before a judgment can be reached.
In this view of the matter it does not seem to me, so far as the question before us is concerned, to be very material, whether or not the case at bar belongs to either of the classes mentioned by Mr. Justice Miller. But suppose that it does not belong to either one of these classes. Does it follow necessarily, that the court could not proceed to judgment, the State being absent ? Ido not understand that Mr. Justice Miller excludes every other case except those belonging to one or other of the classes mentioned bv him. He simply classifies the cases in which the court has *434heretofore acted, and declares that in those cases the jurisdiction of the court has been maintained; but he does not hold, that these are the only cases in which that jurisdiction could attach.
But is it clear that the case a,t bar is outside of the classification as it stands? Is it not embraced in the principle of thé second class? To the second class belongs United States v. Lee, (106 U. S., 196), and cases of that character, where officers and agents of the government are sued for property which they hold not in their own individual right, but as officers and agents, and their defence is title and possession in the government, and not in themselves personally. That was the case of the United States v. Lee, where the defendants were holding “Arlington ” as the agents and officers of the United States, and had been thus holding for ten years or more, as public property — a national cemetery. They were sued for possession by Lee. The United States interposed by its attorney, claiming that the United States was a party, or rather was an indispensable party, and the United States could not be sued; that the court therefore had no jurisdiction and could not proceed. The court held otherwise, and the case went to judgment, in favor of Lee.
Now, the facts in that case are almost identical in their character with the facts here. Here the plaintiff' sues for personal property, the title of which is evidently in him. The defendants .admit possession, they do not deny that that possession reached them through an illegal act of the former land commissioner, as charged in the complaint, but they claim that they are holding not in their own right, but for the State, who has a claim against the plaintiff, which they demand should be settled before they are required to deliver to him his property. These are the facts. How do they differ in character from those in United States v. Lee? I can see no difference.
But it is said there is a difference in the character of the actions in the two cases; that in Lee and United States, the action was against the defendants as individuals, and not as officers and agents, and that in the case below the action was against the defendants as officers and agents, and not as individuals. That is true. There is that difference between the cases, but does that demand the application of different principles to *435facts which are nearly the same? In Lee and United States, the court held, that the defendants could not oust the jurisdiction of the court by interposing the defence that they were officers, and holding entirely for the government, which was a known and admitted fact. This being so, how can that jurisdiction be affected, when they are sued as such officers ? What difference can it make, whether the character of the holding appears from the plaintiff in his complaint, or from the defence set up in the answer of the defendants ? The principle set up in Lee and United States was, that holding for the State did not in itself, and proprio vigore, oust the jurisdiction of the court, preventing all further investigations ; but that, in such case, the action should proceed until it was determined that the holding was rightful and legal.
I cannot see w'hy that principle should not still apply in a case like that before the court, where the plaintiff alleges that the defendants are in possession of his property, as State officials, claiming for the State, but that they are wrongfully so, because his title is better than that of the State, and where the defendants admit that they are holding for the State, claiming title in the State. There can be no doubt that the same principle is involved in each of the cases, to wit: whether the defendants’ claim is founded on legal grounds, which can only be determined by assuming jurisdiction and by investigating the question. It is admitted that this can be done where the matter of the right of the State is set up as a defence by the defendants, when sued as individuals, but it is denied, where the character of the holding is alleged in the complaint (because such are the facts of the case), and the defendants are sued as officials. It appears to me that this would be technical to an extreme degree, and subversive of right and j ustice.
I do not think that the State is a party to the action. Nor do I think that it is indispensable that she should be a party, so as to enable the court to render a judgment — the court having jurisdiction of the defendants, against whom a judgment may be made, the State still having the right to asseit her claim, if any. I therefore cannot concur in the majority opinion.
Judgment reversed.