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CHAPTER III.

The Judicial Department

Section 1.

THE JURISDICTION OF THE SUPREME COURT.

Sub-Section A.

SUITS BETWEEN STATES.

NEW HAMPSHIRE v. LOUISIANA.

NEW YORK v. LOUISIANA.

108 U. S., 76. 1883.

On the 18th of July, 1879, the Legislature of New Hampshire passed a statute which provided that whenever a citizen of the State should own a claim against another State of the United States, arising upon a written obligation to pay money which should be past due and unpaid, that such citizen could assign the claim to the State, and the Attorney-General of the State should institute a proceeding in the name of the State in the Supreme Court of the United State to recover the amount due. Under this act, certain bonds of the State of Louisiana were assigned to the State of New Hampshire by one of its citizens for the purpose of suit as contemplated in the act. A similar statute in New York, passed May 15, 1880, was the basis for a suit upon bonds of the same character, assigned to the State of New York by one of its citizens. The two cases were heard together.

MR. CHIEF JUSTICE WAITE delivered the opinion.

The first question we have to settle is whether, upon the facts shown, these suits can be maintained in this court.

Art. III, Sec. 2, of the Constitution provides that the judicial power of the United States shall extend to “controversies between two or more States," and "between a State and a citizen of another State." By the same article and section it is also provided that in cases “in which a State shall be a party, the Supreme Court shall have original jurisdiction.” By the Judiciary Act of 1789, c. 20, Sec. 13, 1 Stat. 80, the Supreme Court was given "exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a

Note.-See Appendix for digest of the new Federal Judicial Code, showing the organization and jurisdiction of the various federal courts.

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State and citizens of another State, or aliens, in which latter case it shall have original but not exclusive jurisdiction."

Such being the condition of the law, Alexander Chisholm, as executor of Robert Farquar, commenced an action of assumpsit in this court against the State of Georgia, and process was served on the Governor and Attorney-General. Chisholm v. Georgia, 2 Dall, 419. On the 11th of August, 1792, after the process was thus served, Mr. Randolph, the Attorney-General of the United States, as counsel for the plaintiff, moved for a judgment by default on the fourth day of the next term, unless the State should then, after notice, show cause to the contrary. At the next term Mr. Ingersoll and Mr. Dallas presented a written remonstrance and protestation on behalf of the State against the exercise of jurisdiction, but in consequence of positive instructions they declined to argue the question. Mr. Randolph, thereupon, proceeded alone, and in opening his argument said, “I did not want the remonstrance of Georgia, to satisfy me that the motion which I have made is unpopular. Before the remonstrance was read, I had learnt from the facts of another State, whose will must always be dear to me, that she too condemned it.”

On the 19th of February, 1793, the judgment of the court was announced, and the jurisdiction sustained, four of the justices being in favor of granting the motion and one against it. All the justices who heard the case filed opinions, some of which were very elaborate, and it is evident the subject received the most careful consideration.

Prior to this decision the public discussion had been confined to the power of the court, under the Constitution, to entertain a suit in favor of a citizen against a State; many of the leading members of the convention arguing, with great force, against it. As soon as the decision was announced, steps were taken to obtain an amendment of the Constitution withdrawing jurisdiction. About the time the judgment was rendered, another suit was begun against Massachusetts, and process served on John Hancock, the Governor. This led to the convening of the general court of that Commonwealth, which passed resolutions instructing the Senators and requesting the members of the House of Representatives from the State "to adopt the most speedy and effectual measures in their power to obtain such amendments in the Constitution of the United States as will remove any clause or articles of the said Constitution, which can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any courts of the United States.” Other States also took active measures in the same direction, and soon after the next Congress came together the Eleventh Amendment to the Constitution was proposed, and afterwards ratified by the requisite number of States, so as to go into effect on the 8th of January, 1798. That amendment is as follows:

“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 and subjects of any foreign State.”

Under the operation of this amendment the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is whether they can sue in the name of their respective States, after getting the consent of the State, or, to put it in another way, whether a State can allow the use of its name in such a suit for the benefit of one of its citizens ?

The language of the amendment is, in effect, that the judicial power of the United States shall not extend to any suit commenced or prosecuted by citizens of one State against another State. No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were in legal effect commenced, and are now prosecuted, solely by the owners of the bonds and coupons. In New Hampshire, before the Attorney-General is authorized to begin a suit, the owner of the bonds must deposit with him a sum of money sufficient to pay all costs and expenses. No compromise can be effected except with the consent of the owner of the claim. No money of the State can be expended in the proceeding, but all expenses must be borne by the owner, who may associate with the Attorney-General such counsel as he chooses, the State being in no way responsible for fees. All moneys collected are to be kept by the Attorney-General, as special trustee, separate and apart from the other moneys of the State, and paid over by him to the owner of the claim, after deducting all expenses although signed by the Attorney-General, is also signed, and was evidently drawn, by the same counsel who prosecuted the suits for the bondholders in Louisiana, and its is manifested in many ways that both the State and the Attorney-General are only nominal actors in the proceeding. The bond owner, whoever he may be, was the promoter and is the manager of the suit. He pays

the expenses, is the only one authorized to conclude a compromise, and if any money is ever collected, it must be paid to him without even passing through the form of getting into the treasury of the State.

In New York no special provision is made for compromise or the employment of additional counsel, but the bondholder is required to secure and pay all expenses and gets all the money that is recovered. This State, as well as New Hampshire, is nothing more or less than a mere collecting agent of the owners of the bonds and coupons, and while the suits are in the names of the States, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them.

It follows that when the amend (eleventh amendment) took away the special remedy there was no other left. Nothing was added to the Constitution by what was thus done. No power taken away by the grant of the special remedy was restored by the amendment. The effect of the amendment was simply to revoke the new

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right that had been given, and leave the limitations to stand as they were. In the argument of the opinions filed by the several justices in the Chisholm case, there is not even an intimation that if the citizen could not sue, his State could sue for him. The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a State by or for citizens of other States, or aliens, without the consent of the State to be sued; and, in our opinion, one State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the Constitution, from entertaining these suits, and

The bill in each of the cases is consequently dismissed.

Sub-Section B.

SUITS BETWEEN THE UNITED STATES AND A STATE.

UNITED STATES v. TEXAS.

143 U. S., 621. 1892.

This was an original suit brought in the Supreme Court of the United States by the Attorney-General on behalf of the United States against the State of Texas. The Act of May 2, 1890, which provided a temporary government for the Territory of Oklahoma directed such a suit to be brought to establish the title of the United States to the country lying between the North and South Forks of the Red River, where the Indian Territory and the State of Texas adjoin. The government alleged that the State of Texas had without right taken possession of the disputed territory in violation of the rights of the United States over that land, as constituting a part of the territory of Oklahoma. The State of Texas made an appearance to the action, but questioned the right of the Federal government to bring a suit against a State of the Union in one of its own courts.

MR. JUSTICE HARLAN delivered the opinion of the court.

(The court first passed upon the question of whether a dispute as to boundary line between States or Territories was a political or judicial question and concluded: "It cannot with propriety be said that a question of boundary between a Territory of the United States and one of the States of the Union is of a political nature, and not susceptible of judicial determination by a court having jurisdiction of such controversy.")

The important question therefore, is, whether this court can, under the Constitution, take cognizance of an original suit brought

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by the United States against a State to determine the boundary between one of the Territories and such State. Texas insists that no such jurisdiction has been conferred upon this court, and that the only mode in which the present dispute can be peaceably settled is by agreement, in some form, between the United States and that State.

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 more 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 was 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. As, however, the question of jurisdiction is vital in this case, and is distinctly raised, it is proper to consider it upon its merits.

The Constitution extends the judicial power of the United States “to all cases, in law and equity, arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens or subjects.

"In all cases, affecting ambassadors or other public ministers and consuls and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Art. 3, § 2. "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." 11th Amendment.

It is apparent upon the face of these clauses that in one class of cases the jurisdiction of the courts of the Union depends “on the character of the cause, whoever may be the parties," and, in the

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