I concur in the opinion, except in so far as it holds the nonresident bank should be made a party.
In my opinion, chancery rule 18 expressly covers the case. Under the rule, where the protection of parties before the court so demands, the cause may proceed without "necessary parties," if nonresident; that is, without parties who would be necessary, if within the jurisdiction of the court.
That rule provides, as must needs be so, that the nonresident shall not be concluded, but still have his day in court, if he so elects, for a hearing de novo. The state would be quite impotent to protect her citizens if the courts could not deal with parties under her jurisdiction because nonresidents have rights in the subject-matter. Travis v. First Nat. Bank of Evergreen, 210 Ala. 620, 98 So. 890.
Nor do I think the New York bank should be made a party by constructive notice. This is a proceeding inter partes, not one in which the court has jurisdiction of the res, in the sense of jurisdiction by proceedings in rem.
No decree on constructive service can adjudicate the bank's contractual rights with the state of Alabama.
Certainly the bank should be permitted to intervene, if it desires so to do. The name of the bank is known as of course to the treasurer and other officers of the state. We will not assume they have failed in their duty to advise the bank of this litigation.
The situation, more fully disclosed in the companion case of Jewell C. Hall v. S. H. Blan, State Treasurer (Ala. Sup.) in148 So. 601, seems to be this: A bank in another state has furnished money at the instance of the Governor of Alabama, to be used in keeping open our public schools, pay for school buildings, provide for the insane hospital, the school for the deaf and blind, etc., taking as security warrants issued for these purposes pursuant to a solemn act of our Legislature, and by the regular officers chosen for the purpose by the people of the state. An unprecedented economic condition has caused or accentuated a great shortage of revenues. The state has by legislation put an end to further accumulation of deficits, or floating debts. Now comes a suit to prevent the depletion of current school funds of a later year in order to meet these warrants. Shall the bank put itself in the position of a litigant, or shall it wait upon Alabama to meet a most solemn moral obligation by such means, even a constitutional amendment, as the wisdom, patriotism, and justice of the state shall advise?
I think the bank should be left to its own election whether it will become a party to this suit, as it may be advised.
I therefore respectfully dissent. *Page 556