Congress of 1793 in aid of it, made his requisition on the governor of Ohio, demanding that the fugitive be delivered up. The demand was refused. Whereupon Kentucky appealed to the Supreme Court for a mandamus on Dennison, the governor of Ohio, to compel him to discharge what Kentucky alleged was his duty under the Constitution, and to deliver up the fugitive.

The court held that it was the duty, under the Constitution, of the governor of Ohio to deliver the fugitive upon the demand of the governor of Kentucky; but that this duty "was a moral obligation," which the laws provided no means of compelling compliance with. The court say the law inflicts no punishment for neglect or refusal on the part of the executive of the State; "nor is there any clause (or provision) in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it."

Now, here was a controversy between two States. One State sought to enforce her right, under the Constitution, against another by mandamus. The court decided that it had not the power to compel a State or its officer, acting upon its officer, to do its duty. The Federal power acts upon individuals, and not upon States; and if the court could have enforced the rights of Kentucky by acting upon individuals, and not on the governor of Ohio, it would have done so.

But by the Constitution, as construed by the court, it was the duty of the governor to deliver up the fugitive. It could be the duty of no one else; and the obligation, being thus specially committed to the chief executive of the State, it was out of the power of any other State officer to do what the governor ought to do. The fugitive must, of necessity, be in the custody of State officers, by virtue of State laws. The Federal authority can in no case operate upon them, and the complainant State was left without a remedy. The special relief and mode of proceeding having been. given and pointed out in the Constitution, the States had released

all other remedies which they otherwise might have had under the power of the original jurisdiction of the court. Having agreed upon their remedy, they could claim no other.

This is the theory and principle of this decision, and hence it is claimed as supporting the principles herein advanced. Where no remedy is pointed out, the court will supply one; where one is specified, the suitor cannot claim nor the court apply any other. Now, in a suit on an obligation to pay money, the Constitution indicates no mode by which the court may enforce its jurisdiction. The jurisdiction may be enforced and the obligor compelled to comply with his obligation, in methods proper for the collection of money. The obligation to pay is not simply a moral obligation it is a legal liability. When a State in the Union enters into a contract, she lays down her sovereignty to that extent. She is subject to the Constitutional inhibition as to that contract as well as to all others. She can pass no laws to impair the obligation thereof. When she goes into trade, she stands on the same footing as all other traders. When she becomes a stockholder, she shares the responsibility of all other stockholders; and when she makes a contract, her obligation is exactly that of any other contracting party.

"The truth is," says the Supreme Court, in Murray v. City Council of Charleston, not yet reported, "States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties; they come down to the level of ordinary individuals; their contracts have the same meaning as that of similar contracts between private persons."

The only difference between them and private persons is, that the latter can be sued by their creditors in any proper court, while a State can only be sued in a court designated by itself, with its

own consent.

Each State has consented to be sued. It has specified the forum, the Supreme Court; it has designated the parties, another State or a foreign State; it has indicated the cause of action, controversies with other States.

Therefore, it is submitted that, inasmuch as its contract to pay money is like the contract of any individual to do so; and inasmuch as the court exists in which that contract may be enforced, and has power to prescribe process and mould proceedings to

that end,― States can be compelled to pay their debts, in the mode and under the circumstances above mentioned.

RICHMOND, Va.

BRADLEY T. JOHNSON.

NOTE. An article in the January (1844) number of the North American Review, on the Debts of the States, by the late Mr. Justice B. R. Curtis, contains a luminous and exhaustive review of the circumstances attending the failure by several States to meet their obligations after the financial crisis of 1837, and enforces with great power the proposition attempted to be established above, that it is the right and duty of States to protect their citizens, injured by non-payment of State debts, by invoking the power of the Union, through the original jurisdiction of the Supreme Court of the United States. The subsequent discussion and declaration by that court of its original jurisdiction fully sustain the principles announced by that distinguished jurist.

CLAIMS AND EQUITIES AFFECTING THE PRIORITY OF RAILROAD MORTGAGES.

1. RECEIVERS' CERTIFICATES.

2. JUDGMENTS AND CLAIMS AGAINST RECEIVERS.

3. DEBTS INCURRED BY MORTGAGE TRUSTEES IN POSSESSION.

4. WAGES OF Employes, and Floating Debts.

5. VENDORS' LIENS.

6. MECHANICS' LIENS.

7. EQUITIES OF CONTRACTORS AND OTHERS.

RAILROAD bondholders have, within the last few years, sometimes experienced much surprise, to say nothing of other and stronger emotions, at finding that mortgage liens, which were nominally and actually first liens upon the mortgaged property at the time they were created, have, in the course of events, been adjudged by the courts to be subject to other claims subsequently incurred. They have not merely seen debts incurred by receivers and trustees in the management of the property accorded a priority over their mortgages, but they have also seen the same priority accorded to the claims of laborers and mechanics, and to all that undefined indebtedness of a railroad company, known as floating debt. They have experienced a new application of the text, perhaps not half believed before, "So the last shall be first, and the first, last."

It is proposed, by the aid of recent leading cases, to examine, so far as the space of a review article will allow, the various ways, whether legitimate or not, in which it has been sought to supersede the priority of railroad mortgages by subsequent claims and equities.

In the enforcement of these mortgages there is frequent occasion to invoke the aid of courts of equity to take possession of the property for its preservation. This is done through the agency of receivers. It may be necessary, in the proper management of the property, to use money beyond the current income; and it is usual for the courts to authorize receivers, for specific purposes, to borrow it upon the credit of the property. This au

thority of the courts, when properly exercised, is highly beneficial to the mortgage bondholders. What are the proper occasions for the exercise of this power is the first subject for consideration.

1. Receivers' Certificates.

Under the common-law rules as to the rights of a mortgagee in possession, he has authority to make necessary and reasonable repairs, and to protect the title from other incumbrances. He has, however, no right to make the estate better by expenditures for convenience or ornament. He has no right to lay out money in ways not essential to the preservation of the property, although he may think that the value of it will thus be increased. He is not allowed to improve a mortgagor out of his estate.1

This principle of the general law of mortgages should govern courts and receivers in the management of railroad property, pending litigation respecting it. A receiver is generally appointed at the instance of a mortgagee, and the receiver's possession is only a substitute for the possession of the mortgagee. As against the mortgagor, the same rules govern as to the expenditures a receiver may make and charge upon the property, that govern when a mortgagee is himself in possession. A receiver has no greater right than a mortgagee to improve the mortgagor out of his estate. It does not alter the rule in this respect, that generally when the affairs of a railroad company become so embarrassed that the mortgagee is obliged to assume possession of the road, either directly or through the intervention of a receiver, in order to protect the mortgage title and interest, the company itself practically ceases to have any interest in the road, and rarely is able to redeem. The right of redemption remains until finally barred by the foreclosure proceedings, and must be protected, though it be seldom or never exercised.

Complaint as to the management of railroad receivers has generally come, not from the stockholders of the corporation, because it is seldom they care to redeem, but from mortgage bondholders; and as often, perhaps, from those at whose solicitation the receiver was appointed, as from others who may hold under junior mortgages, and who, therefore, have a right to redeem. The history of such management in this country shows that the bondholders chiefly interested have sometimes found

1 Sandon'v. Hooper, 6 Beav. 246; 2 Jones on Mortg. § 1126.