Mr. Justice Brewer,
after making the foregoing statement, delivered the opinion of the court.
There can be no reasonable doubt of the validity of the bonds and mortgages in controversy. There is no challenge of the statutes by which they were authorized. By those statutes the treasurer was directed, when it became necessary to borrow money for the payment of the subscription, to prepare coupon bonds and advertise in one or more newspapers for sealed proposals, and to accept the terms offered most advantageous to the State, provided that in no event should the bonds be sold for less than their par value. .The advertisement was made, no bids were received, but the bonds wjere delivered to the railroad company as payment for the subscription, dollar for dollar. Upon each bond was placed the statutory pledge or mortgage. It is true no money was paid into the treasury and thence out of the treasury to the railroad company, yet looking at the substance of the transaction (and equity has regard to substance rather than form), the transaction was the same as though the company had been the only bidder, had placed a thousand dollars in the treasury in payment of each bond and received that thousand dollars back from the treasury in payment of the subscription for ten shares of stock. It is true also that there was no formal issue of certificates by the company to the State, but that was a matter of arrangement between the parties to the subscription. The State’s right as a stockholder was not abridged by lack of the certificates, and in fact it has been receiving dividends on the stock exactly as though certificates had been issued. The statute also provided that with each several bond a-deed of-mortgage for an equal amount of stock, signed by the treasurer and countersigned by the comptroller, should constitute a part of the bond and be transferable in like manner with it, “ and further, that such mortgage shall have all the force and effect [310]*310in law and equity, of registered mortgages without actual registry.” . While no certificate of stock was to be attached to or go with the bond the statute evidently contemplated that the mortgage endorsed on the bond should have the same force and effect. Hence, when the endorsement was made and the bond issued by the State it was tantamount to a separation and identification of the number of shares named therein. It cannot be that vthe State having provided this means of giving to each bond the mortgage security of the corresponding shares of stock can now prevent the attaching of the lien on the ground that no' shares had been separated and no certificate transferred. It is unnecessary to refer to chap. 98 of the Laws of 1879, for that act was one in the nature of an offer to compromise, although it does contain a recognition of outstanding obligations.
Neither can there be any question respecting the title of South Dakota to these bonds. They are not held by the State as representative of individual owners, as in the case of New Hampshire v. Louisiana, 108 U. S. 76, for they were given outright and absolutely to the State. It is true that the gift may be considered a rare and unexpected one. Apparently the .statute 'óf South Dakota was passed in view of the expected gift, and probably the donor made the gift under a not unreasonable expectation tha,t South Dakota would bring an -action against North Carolina to enforce these bonds, and that'Such action might, enure to his benefit as the owner of other like bonds. But the motive with which a gift is made, whether good or bad, does not affect its validity or the question of jurisdiction. This has been often ruled. In McDonald v. Smalley, 1 Pet. 620, an objection to the jurisdiction on the ground that the title to the property in controversy had been conveyed to the plaintiff in.the belief that it would be sustained by the Federal when it would not be by the state court; was overruled,, with this observation by Chief justice Marshall (p. 621):
“ This testimony, which is all that was laid before the court, shows, we think, a sale and conveyance to the plaintiff, which was binding on both parties. McDonald could not have main[311]*311tained an action for bis debt, nor Me Arthur a suit for his land. His title to it was extinguished, and the consideration was received. The motives which induced him to make the contract, whether justifiable or censurable, can have no. influence on its "validity. They were such as had sufficient influence with himself, and he had a right to act upon them, A court cannot enter into them when deciding on its jurisdiction. The conveyance appears to be a real transaction, and the real as well as nominal parties to the suit, are citizens of different States.”
See also Smith v. Kernochen, 7 How. 198; Barney v. Baltimore, 6 Wall. 280 ; Dickermam v. Northern Trust Co, 176 U. S. 181, 190, 191, 192. In this last case Mr. Justice Brown, speaking for the court, said :
“ If the law concerned itself with the motives of parties new complications would be introduced into suits which might seriously obscure their real merits. If the debt secured by a. mortgage be justly due, it is no defence to a foreclosure that the mortgagee was animated by hostility or other bad motive. Davis v. Flagg, 35 N. J. Eq. 491; Dering v. Earl of Winchelsea, 1 Cox Ch. 318; McMullen v. Ritchie, 64 Fed. Rep. 253, 261; Toler v. East Tenn. &c. Railway, 67. Fed. Rep. 168. . . . The reports of this court furnish a number of analogous cases. Thus, it is well settled that a mere colorable conveyance of property, for the purpose of vesting title in a non-resident and enabling him to bring suit in a Federal court, will not confer jurisdiction; but if the conveyance appear to be a real transaction, the court will not, in deciding upon the question of jurisdiction, inquire into the motives which actuated the parties in making the conveyance. McDonald v. Smalley, 1 Pet. 620; Smith v. Kernochen, 7 How. 198; Barney v. Baltimore, 6 Wall. 280 ; Farmington v. Pillsbury, 114 U. S. 138; Crawford v. Neal, 144 U. S. 585.
“ The law is equally well settled that, if a person take up a bona fide residence in ..another State, he may sue in a Federal court, notwithstanding his purpose was to resort to a forum of which he could not have availed himself if he were a resident of the State in which the court was held. Cheever v. [312]*312Wilson, 9 Wall. 108, 123; Briggs v. French, 2 Sumn. 251; Catlett v. Pacific Ins. Co., 1 Paine, 594 ; Cooper v. Galbraith, 3 Wash. 546 ; Johnson v. Monell, Wool. 390.”
The title of South Dakota is as perfect as though it had received these bonds directly from North Carolina: We have, therefore, before us the case of a State with an unquestionable title to bonds issued by another State, secured by a mortgage of railroad stock belonging to that State, coming into this court and invoking its jurisdiction to compel payment of those bonds and a subjection of the mortgaged property to the satisfaction of the debt.
Has this court jurisdiction of such a controversy, and to what extent may it grant relief ? Obviously that jurisdiction is not affected by the fact that the donor of these bonds could not invoke it. The payee of a foreign bill of exchange may not sue the drawer in the Federal court of. a State of which both are citizens, but that does riot oust the court of jurisdiction of an action by a subsequent holder if the latter be a citizen of another State. The question of jurisdiction is determined by the status of the present parties, and not by that of prior holders of the thing in controversy. Obviously, too, the subject-matter is one of judicial cognizance. If anything can be considered as justiciable it is a claim for money due on a written promise to pay — arid if it be justiciable does it matter how the plaintiff acquires title, providing it be honestly acquired? ■ It would seem strangely inconsistent to take jurisdiction of_ an action by South Dakota against North Carolina on a promise to pay made by the latter directly to. the former, arid, refuse jurisdiction, of an action on a like promise made by the latter to. an individual and by him sold or donated to the former.
A preliminary question arises from the fact that representatives of. the two classes of borfds are made defendants,- and thqt a part of the relief asked is a sale of the thirty thousand stories of stock of the North Carolina Railroad Company, belohging to the State of North Carolina, in satisfaction and discharge of all the mortgages upon such stock. It is insisted [313]*313that these individuals, owners of the bonds, although named as defendants, are in fact occupying an adverse position to that of the State, and that the effect of their presence as parties is a .practical nullification, of the Eleventh Amendment, in that it is giving to individuals relief by judgment against the State. Apparently one expectation of the donor to -South Dakota was that in some way the bonds retained by’ himself would be placed in judgment and relief obtained against North Carolina in the suit commenced by South Dakota. , But we think that these individuals are not necessary parties-defendant, and that no relief should be given to them or to the classes of bondholders they represent. The statute under which the mortgage was executed provided that with each of the bonds-a deed of mortgage for a like amount of stock should be executed by the State. There is, therefore, a separate mortgage of ten shares of stock on each one of these bonds, and that mortgage can be fully satisfied by a decree of foreclosure and sale of the ten shares of stock. No one would doubt that, if a certificate of stock was attached-ms a pledge to a note, the-pledge could be satisfied by a sale of the stock without any determination of the rights of the purchaser as between himself and other stockholders. And. such was the manifest purpose of this legislation. It' contemplated that each bondholder should receive a stock security which -he could realize ■ on without the delay and expense of a suit to .which all other stockholders and the corporation would be necessary parties. The-purchaser at the sale to be authorized by this decree will become vested with the full title of the State to the number of shares of stock stated in the mortgage. He will occupy the same position in relation to the corporate property that other' stockholders occupy, and have whatever rights they have. It is not necessary for a full satisfaction of the mortgage on one of these bonds that any other mortgage upon another bond- be also foreclosed, or that a decree be entered determining what rights the purchaser will have by virtue of the stock which he obtains at the sale. So far-then as these individual defend[314]*314ants are concerned,- the suit will be dismissed with costs against South Dakota.
' Coming now to the right of South Dakota to maintain this suit against North Carolina, we remark that it is a controversy between two States; that by sec. 2, art. Ill, of the Constitution this court is given original jurisdiction of “ controversies, between two or. more' States.” In Missouri v. Illinois and the Sanitary District of Chicago, 180 U. S. 208, Mr. Justice Shiras, speaking for the court, reviewed at length the history of the incorporation of this provision into the Federal Constitution and the decisions rendered by this court in respect -to such jurisdiction, closing with these words (p. 240):
“The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State.”
The present case is- one “directly affecting the property rights and interests of a State.”
•Although a repetition of this review is unnecessary, two or three matters are worthy of notice. The original draft of the Constitution reported to the convention gave to the Senate jurisdiction of all disputes and controversies “between two or niore States, respecting' jurisdiction or territory,” and to the Supreme Court jurisdiction of “controversies between two or more States, except such as shall regard territory or jurisdiction." A claim for. money due being a controversy of a justiciable nature, and one of the most common of controversies, would seem to naturally fall within the scope of the jurisdiction thus intended to be conferred upon the Supreme Court. In the subsequent revision by the convention the power given to the Senate in respect to controversies between the States was stricken out as well as the limitation upon the jurisdiction of this court, leaving to it in. the language now found'in the Constitution■ jurisdiction without any limitation of “controversies between two or. more States.”
The Constitution .as it ■ originally stood also gave to this [315]*315court jurisdiction of controversies “between a State and citizens of another State.” Under that clause Chisholm v. Georgia, 2 Dall. 419, was decided, in which it was held that a citizen of one State might maintain in this' court an action of assumpsit against another State. Inconsequence of that decision the Eleventh Amendment was adopted, which provides'that “the judicial power of the United States'shall not be construed-to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State'; or by citizens or subjects of any foreign State.” It will be perceived that this amendment only granted to a State immunity from suit by an individual, and did not affect the jurisdiction over controversies between two or more States. In respect to this it was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 406:
“ It is a part of our history, that, at the adoption of the , Constitution, all"the States were greatly indebted; and the apprehension that these debts might be prosecuted in the Federal courts formed a very serious objection to that instrument. Suits were instituted; and the court, maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertaine'd, this amend- . ment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the court still extends to these cases: and in these a-State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. -There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would [316]*316be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States.”
In the same case, after referring to' the two classes of cases, jurisdiction of which was vested in the courts of the Union, he said. (p. 378):
“ In the second' class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 4 controversies between two or more States, between a State and citizens of another State,’ and 4 between a State and foreign States, citizens or subjects.’ If these be the parties it is entirely-unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.”
In Rhode Island v. Massachusetts, 12 Pet. 657, this court sustained its jurisdiction of a suit in equity brought by one State against another to determine a dispute as to boundary, and in the course of the opinion, by Mr. Justice Baldwin, said in respect to the immunity of a sovereign from suit by an individual (p. 720):
“ Those States, in their highest sovereign capacity, in the convention of the people thereof, , . . adopted the Constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more States. By the Constitution, it was ordained that this judicial power, in cases where a State was a party, should be exercised by this court as one of original jurisdiction. The States waived their exemption from judicial power, (6 Wheat. 378, 380,)'as sovereigns by original and inherent .right, by their own grant of its. exercise over themselves in such cases, but which they would not grant to any inferior tribunal. By this grant, this court has acquired jurisdiction over the parties in this cause, by their own consent and delegated authority ; as their agent for executing the judicial power of the United , States in the cases specified.”
And, again, in reference to the extent of the jurisdiction of this court (p. 721) :
[317]*317“ That it is a controversy between two States, cannot be denied; and though the Constitution does not, in terms, extend the judicial power to all controversies between two or -more States, yet, it in terms excludes none whatever may be their nature or subject.”
In United States v. North Carolina, 136 U. S. 211, we took jurisdiction of an action brought by the II nited States against North Carolina to recover interest on bonds, and decided the case upon its merits. ,It is true there was nothing in the opinion in reference to the matter of jurisdiction, but as said in United States v. Texas, 143 U. S. 621, 642:
“ The-cases in this court show that the framers of the Constitution did provide, by that instrument, for the judicial determination of all cases in law and equity between two or morp States, including those involving questions of boundary. Did they omit to provide for the judicial determination of controversies arising between the United States and one or more of the States of the Union? This question is' in effect answered by United States v. North Carolina, 136 U. S. 211. That was an action of debt brought in this court by the. United States against the State of North Carolina upon certain bonds issued by that State. The State appeared, the case was determined here upon its merits and judgment ivas rendered for the State. It is true that no question was made as to the jurisdiction of this court, and nothing was therefore said in the opinion upon that subject. But it did not escape the attention of the court, and the. judgment would not have been rendered except upon the theory that this court has original jurisdiction of a suit by the United States against a State.”
See also United States v. Michigan, 190 U. S. 379, decided at the last term, in which a bill in equity-for an accounting and a recovery of money was sustained. Mr. Justice Peckham, delivering the unanimous opinion of the court, said (pp. 396, 406):
. “ By its bill the United States invokes the original jurisdiction of this court for the purpose of determining a controversy existing between it and the State of Michigan. This court has jurisdiction of such- a controversy, although it is not lit[318]*318erally between two States, the United States being a party on the one side, and a State on the Other. This was decided in United States v. Texas, 143 U. S. 611, 642. . . . There must be judgment overruling the demurrer, but as the defendant may desire to set up facts which it might claim would be a defence to the complainant’s bill, we grant leave to the defendant to answer up to the first day of the next term of-this court. In case it refuses to plead further, the judgment will be in favor of the United States for an accounting and for the payment of the sum found due thereon.”
W e are not unmindful of the fact that in Hans v. Louisiana, 134 U. S. 1, Mr. Justice Bradley, delivering the opinion of the court, expressed his concurrence in the views announced by Mr. Justice Iredell, in the dissenting opinion in Chisholm v. Georgia, but such expression cannot be considered as a judgment of the court, for the point decided was that, construing the Eleventh Amendment according to its spirit rather than by its letter, a State was relieved from liability to suit at the instance of an individual, whether one of its own citizens or a citizen of a foreign State. Without noticingin detail' the other cases referred to by Mr. Justice Shiras in Missouri v. Illinois et al., supra, it is enough to say that the clear import of the decisions of this court from the beginning to the present time is in favor of its jurisdiction over an action brought by one State against another to enforce a property right. ‘ Chisholm v. Georgia was an action of assumpsit, United States v. North Carolina an action of debt, United States v. Michigan a suit for an accounting, and that which was sought in each was a money judgment against the defendant State.
But we are confronted with the contention that there is no power in this court to enforce such a judgment, and'.such lack of power is conclusive evidence that, notwithstanding the general language of the Constitution, there is an implied exception of actions brought to recover money. The public property held by any municipality, city, county or State is exempt from seizure upon execution because it is held by such corporation, not as a part of its private assets, but as a trustee for public purposes. Meriwether v. Garrett, 102 U. S. 472, 513.
[319]*319As a rule no such municipality has any private property subject to be taken upon execution. • A levy of taxes is not within the scope of the judicial power except as it commands an inferior municipality to execute the power granted by the legislature.
In Rees v. City of Watertown, 19 Wall. 107, 116, 117, we said:
“ We are of the opinion that this court has hot the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only ; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important.”
See also Heine v. The Levee Commissioners, 19 Wall. 655, 661; Meriwether v. Garrett, supra.
In this connection reference may be made to United States v. Guthrie, 17 How. 284, in which an application was made for a mandamus against the Secretary of the Treasury to compel the payment of an official salary, and in which we said (p. 303):
“ The only legitimate inquiry for our determination upon the case before us is this : Whether, under the organization of the Federal government, or by any known principle of law, there ean be asserted a power in the Circuit Court of the 'United States for the District of Columbia, or in this court, to command the withdrawal of a sum or sums of money from the Treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States? This is the question, the very question presented for our determination; and its simple statement wrould seem to carry with it the most startling considerations — nay, its unavoidable negation, unless this should be -prevented by some positive and controlling command ;. for it would occur, a priori, to every mind, that a treasury, not fenced round or shielded by fixed and established modes and rules of administration, but which [320]*320could be subjected to any number or description of demands, asserted and sustained through the undefined and undefinable discretion of the courts, would constitute a feeble and inadequate provision for the great and inevitable necessities of the nation. The government under such a regime, or, rather, under such an absence of all rule, would, if practicable at all, be administered, not by the great departments ordained by the Constitution and laws, and guided by the modes therein prescribed, but by the uncertain and perhaps contradictory action of the courts, in the enforcement of their views of private interests.”
Further, in this connection may be noticed Gordon v. United States, 117 U. S. 697, in which this court declined to take jurisdiction of an appeal from the Court of Claims, under the statute as it stood at the time of the decision, on the ground that there was not vested by the act of Congress power to enforce its judgment. We quote the following from the opinion, which was the last prepared by Chief Justice Taney (pp. 702, 704):
“ The award of execution is a part, and an essential part of every judgment passed by .a court exercising judicial power. It is no. judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved'party without a remedy. . . . Indeed, no principle of constitutional law has been more firmly established or constantly adhered to, than the one above stated — that is, that this court has no jurisdiction in any case where it cannot render judgment in the legal sense of the term; and when it depends upon the legislature to carry its opinion into; effect or not, at the pleasure of Congress.” See also In re Sanborn, 148 U. S. 222, and La Abra Silver Mining. Company v. United States, 175 U. S. 423, 456.
We have, then, on the one hand the general language of the Constitution vesting jurisdiction in this court over “ controversies between two or more States,” the history of that jurisdictional clause in the convention, the cases of Chisholm v. Georgia, United States v. North Carolina and United States vMichigan, (in which this court sustained jurisdiction over actions [321]*321to recover money from a State,) the manifest trend of other decisions, the necessity of some way of ending- controversies between States, and the fact that this claim for the payment of money is one justiciable in its nature; oh the other, certain expression of individual opinions of justices of this court, the difficulty of enforcing a judgment for money against a State, by reason of its ordinary lack of private property subject to seizure upon execution, and the absolute inability-of a court to •compel a levy of taxes by the legislature. Notwithstanding the embarrassments which surround the question it is directly presented and may have to be determined before the case is finally concluded, but for the present it is sufficient to state the question with its difficulties.
There is in this case a mortgage of property, and the sale of that property under a foreclosure may satisfy the plaintiff’s claim. If that should be the result there would be no necessity for a personal judgment-against the:State. That the State is a necessary party to the foreclosure of the mortgage was settled by Christian v. Atlantic & North Carolina Railroad Company, 133 U. S. 233. Equity is satisfied by a decree for a foreclosure and sale of the mortgaged property, leaving the question of a judgment over for any deficiency, to be determined when, if ever, it arises. And surely if, as we have often held, this court has’jurisdiction of an action by one State against another to recover a tract of land, there would seem to be no doubt of the jurisdiction of one to enforce the delivery of personal property.
A decree will, therefore, be entered, which, after finding the amount due on the bonds and coupons in suit to be twenty-seven thousand four hundred dollars ($27,400), (no interest being recoverable, United States v. North Carolina, 136 U. S. 211), and that the same are secüred by one hundred shares of the stock of the North Carolina Railroad Company, belonging-to the State of North Carolina, shall order that the said State of North Carolina pay said amount with costs of suit to the State of South Dakota on or before the 1st Monday of January, 1905, and that in default of such payment an order of sale be issued to the Marshal of this court, directing him to sell [322]*322at public auction all the interest of the State of North Carolina in and to one hundred shares of the capital stock of the North Carolina Railroad Company, such sale to be made at the east front door of the Capitol Building in'this city, public -notice to be given of such sale by advertisements once a week for six weeks in some daily paper published in the city of Raleigh, North Carolina, and also in some daily paper published in the city of Washington.
And either of the parties to this suit may apply to the court upon the foot of this decree, as occasion may require.