FISHERIES, GAME AND FORESTS. 45 I 



The object of this section is plainly to give a theoretic possession to the Comptroller, or the 

 seisin which theoretically accompanies title, as the last act in the chain of the perfection of title 

 by the State acting through its officer and servant. It is in no manner inconsistent with the 

 power of actual occupancy, of protection, of care and right of action to prevent or redress 

 injuries, confided to the Forest Commission, whose power as well as whose duty in these respects 

 begins the instant the State has thus perfected title. This section of the Act of 1893 is not 

 followed by any such distinctive and suitable direction for the actual occupancy and possession 

 by the Comptroller, and protection, as mark the provisions of law in regard to the powers of the 

 Forest Commission, but is followed alone by conditional powers of cancellation or other action 

 looking to a restoration of the title through the Comptroller to the actual owner. The whole 

 theory of the statute in regard to the Comptroller is to make him the officer to perfect title 

 through tax sales and in some cases to exercise discretion to cancel or do certain acts for pur- 

 poses of redemption ; while the whole theory of the laws in regard to the Forest Commission is 

 to give to them whatever of actual custody becomes necessary to accomplish the purposes for 

 which the lands were acquired for the Forest Preserve. 



Turner vs. New York, 168 U. S. Rep. 90. 

 People vs. Turner, 145 N. Y. 451. 



It is well known that no action can lie against the State in one of its own courts, and the 

 authority to take from it any money or property by judgment must be distinctly expressed and 

 cannot be implied. 



People vs. Dennison, 84 N. Y. 273. 



It was even doubted once in England whether the King could maintain ejectment because 

 ejectment might not be maintained against him. 



Adams on Ejectment, 78. 



As a matter of course the State cannot be dispossessed of its property in its own courts by 

 an action in form against its servant or officer. As a matter of grace the State may, by the 

 creation of a Board of Audit or State Board of Claims, allow remedial process against itself 

 which it will recognize. The United States has occasionally permitted ejectment against its 

 own servants or lessees. 



Grisar vs. McDowell, 6 Wall., 363. 



Meigs vs. M'Clung's Lessee, 9 Cranch, n. 



But such rights are those purely of favor and must be expressly conceded in order to 

 justify action. 



It follows, therefore, as a logical conclusion, that an action to determine the title of the 

 plaintiff as against the State of New York cannot be maintained in the courts of the State of 

 New York unless that State has in some manner expressly given its consent to such form of 

 procedure. The statute relied on by the plaintiff does not give such consent. The theory of 

 all the legislation in regard to the Forest Preserve forbids even the implication of such consent. 

 The Comptroller is not in occupancy, legally speaking, of these wild lands to such an actual 

 extent so that the judgment would disturb the possession of the State ; and if he were, no lawful 

 authority of the State of New York has ever consented that such a judgment should affect the 

 title of the People to any portion of the Forest Preserve. 



The complaint is therefore dismissed, with costs. 



