202 U. S.

Argument for Defendants.

But if it were conceded that the United States is the real party in interest and would be directly affected by the decree, the court is without jurisdiction because the Government cannot be made a party defendant in any court without its consent, and consent has not been given in an action such as is here under consideration. United States v. Lee, 106 U. S. 196.

If it be conceded that the doctrine is limited, or that it has no application to a case like the one at bar, or that the defendants as officers of the Government are the proper parties to the action, this court, although it might have appellate, would not have original, jurisdiction. In such case the proper forum for the institution of the suit would be the Supreme Court of the District of Columbia. United States v. Schurz, 102 U. S. 378; Union River Logging Company, 147 U. S. 165; Brown v. Hitchcock, 173 U. S. 473. An injunction against individuals as officers of the Government is limited to a suit such as is authorized by law and where the act enjoined is purely ministerial in character. Taylor's Jurisdiction of Supreme Court, § 48; In re Ayers, 123 U. S. 443. The acts here sought to be restrained are not ministerial in character. Mississippi v. Johnson, 4 Wall. 475; United States v. Schurz, 102 U. S. 378.

The complainant has no interest in the subject matter of the action. The lands are subject to allotment among the Indians. Neither have the defendants any interest in the subject matter of the action as individuals. Minnesota v. Hitchcock, supra.

Persons whose interests would be affected by a decree are not made parties. If made parties the jurisdiction of the court would be defeated, if otherwise it had jurisdiction.

The allottee Indians are interested parties and will be materially affected by a decree in favor of the State; therefore they should be made parties. Shields v. Barrow, 17 How. 130; Chadbourne's Executors v. Coe, 10 U. S. App. 78. As the allottees are residents of Oregon and citizens thereof, Matter of Heff, 197 U. S. 488, if they are made parties the jurisdiction of the

court would for that reason, be ousted. California v. Southern Pacific Company, 157 U. S. 229; Minnesota v. Northern Securities Company, 184 U. S. 199, 245.

The legal title to the lands involved is in the United States. The State admits they are burdened with the Indian right of occupancy. It is settled law that until the Indian right of occupancy to lands has been extinguished the Indian Bureau, of which the Secretary of the Interior is the head, has jurisdiction and control over the lands so occupied. United States v. Thomas, 151 U. S. 577. Until the legal title to the land passes from the Government inquiry as to all equitable rights comes within the cognizance of the Land Department. Brown v. Hitchcock, 173 U. S. 473; Humbird v. Avery, 195 U. S. 480, 502.

The State admits in the bill of complaint that there has been no finding by the Land Department, of which the Secretary of the Interior is the head, that the lands were swamp or overflowed in character on March 12, 1860. Until such finding is made and patent issued the grant is in process of administration. Michigan Land & Lumber Company v. Rust, 168 U. S. 589, 591; New Orleans v. Paine, 147 U. S. 261, 266.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The question of jurisdiction of course precedes any inquiry into the merits. By sec. 2 of art. III of the Constitution and sec. 687, Rev. Stat., this court has original jurisdiction of a suit brought by a State against citizens of other States. Pennsylvania v. Quicksilver Company, 10 Wall. 553; Wisconsin v. Pelican Insurance Company, 127 U. S. 265, 287, and cases cited in the opinion; California v. Southern Pacific Company, 157 U. S. 229, 258; Minnesota v. Hitchcock, 185 U. S. 373. But the contention is that the United States is the real party in interest as defendant, that it cannot be sued without its consent, and that it has given no consent. While the nominal defendants are

citizens of a State other than Oregon, yet they have no interest whatever in the controversy, and if a decree be rendered against them in favor of the State it will not affect their interests but bind and determine the rights of the United States, the real, substantial defendant. It is further said that if there is any other interest adverse to the plaintiff it belongs to the Klamath Indians, who are not made parties, and that the rule in equity is not to determine a suit without the presence of the parties really to be affected by the decree. California v. Southern Pacific Company, supra.

The question of jurisdiction in a case very similar to this was fully considered in Minnesota v. Hitchcock, supra. There, as here, a State was plaintiff, and the suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office to restrain them from selling school sections 16 and 36 in what was known as the "Red Lake Indian Reservation." This suit is brought by a State against the same officers, to restrain them from allotting and patenting in severalty .swamp lands within the Klamath Indian Reservation. In that case we said (p. 387):

"Now, 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 its 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 decree which may be entered, the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record but by the question of the effect of the judgment or decree which can be entered."

It is true in that case we sustained the jurisdiction of this court, but we did so by virtue of the act of March 2, 1901, 31 Stat. 950, which was held to be a consent on the part of the United States to be sued in respect to school lands within an Indian reservation and an acceptance by the Government of full responsibility for the result of the decision, so far as the Indians, its wards, were concerned. But neither of the two facts deemed essential to the maintenance of that suit appear in this. There is no act of Congress waiving immunity of the United States or consenting that it be sued in respect to swamp lands, either within or without an Indian reservation, and there is no act of Congress assuming full responsibility in behalf of its wards, the Indians, for the result of any suit affecting their rights in these lands. It is unnecessary to repeat all that was said in that opinion in reference to these matters. It is sufficient to refer to it for a full discussion of the question.

So

Again; it must be noticed that the legal title to all these tracts of land is still in the Government. No patents or conveyances of any kind have been executed. There has been no finding or adjudication by the Land Department that the lands referred to were swamp or overflowed on March 12, 1860. Under those circumstances it is not a province of the courts to interfere with the Land Department in its administration. far as a grant of swamp lands is claimed, it must be held that the grant is in process of administration, and, until the legal title passes from the Government, inquiry as to equitable rights comes within the cognizance of the Land Department. Courts may not anticipate its action or take upon themselves the administration of the land grants of the United States. New Orleans v. Paine, 147 U. S. 261, 266; Michigan Land & Lumber Company v. Rust, 168 U. S. 589, 591; United States v. Thomas, 151 U. S. 577; Brown v. Hitchcock, 173 U. S. 473; Humbird v. Avery, 195 U. S. 480, 502, 503.

For these reasons the demurrer is sustained and the bill is

Dismissed.

202 U. S.

Argument for Appellant.

HAZELTON v. SHECKELLS.1

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 225. Argued April 12, 1906.-Decided April 23, 1906.

Every part of the consideration for a contract goes equally to the whole promise, and if any part of it is contrary to public policy the whole promise falls.

A contract to deliver property at an agreed price within the duration of a specified session of Congress, it being understood that a part of the consideration is that the person to whom the property is to be conveyed is to endeavor to sell it to the United States and to procure legislation to that end—he not being under obligation to take and pay for the property is void as against public policy and specific performance will not be enforced.

THE facts are stated in the opinion.

Mr. Heber J. May for appellant:

The appellant is entitled to a decree of specific performance in equity. It is not enough that there is a remedy at law; it must be plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. Tyler v. Savage, 143 U. S. 79, 95; Lewis v. Cocks, 23 Wall. 466, 470; Buzard v. Houston, 119 U. S. 347, 352; Insurance Co. v. Bailey, 13 Wall. 616, 621; Drexel v. Berney, 142 U. S. 241, 252; Cathcart v. Robinson, 5 Pet. 264; Bayse's Executors v. Grundy, 3 Pet. 210.

The controversy here is solely between the appellant and appellee, and no third person can be affected by its settlement ́in equity, and equity will look through the form of the transaction and adjust the equities of the parties. Drexel v. Berney, 122 U. S. 241, 254; Smith v. Felton, 43 N. Y. 419; Willard v. Tayloe, 8 Wall. 557; Hodges v. Kowing, 58 Connecticut, 12.

1 Originally docketed as Hazelton v. Miller.