108 U.S. 76
STATE OF NEW HAMPSHIRE
STATE OF LOUISIANA and others.
STATE OF NEW YORK
March 5, 1883
On the eighteenth of July, 1879, the general court of New Hampshire passed an act, of which the following is a copy:
Under this act six of the consolidated bonds of the state of Louisiana, particularly described in the cases of State v. Jumel and Elliott v. Wiltz, just decided, [ante, 128,] were assigned to the state of New Hampshire by one of its citizens. This assignment was made for the purposes contemplated in the act, and passed to the state no other or different title than it would acquire in that way. After the assignment was perfected, a bill in equity was filed in this court in the name of the state of New Hampshire, as complainant, against the state of Louisiana and the several officers of that state who compose the board of liquidation provided for in the act authorizing the issue of the bonds. The averments in the bill are substantially the same as those in Elliott v. Jumel, supra, save only that in this case the ownership of the bonds specially involved is stated to be in New Hampshire, while in that it was in Elliott and his associates. The prayer is, in substance, for a decree that the bonds and the act and constitutional amendment of 1874 constitute a valid contract between Louisiana and the holders of its bonds; that the defendants and each of them may be prohibited from diverting the proceeds of the taxes levied under the act from the payment of the interest; and that the provisions of the debt ordinance of 1879 may be adjudged void and of no effect, because they impair the obligation of the contract. The bill was signed in the name of New Hampshire by the attorney general of that state, and also by the same counsel who appeared for Elliott, Gwynn & Walker in their suit in equity just decided.
On the fifteenth of May, 1880, the legislature of New York passed the following act:
On the twentieth of April, 1881, E. K. Goodnow and Benjamin Graham, being the holders and owners of 30 coupons cut from 10 of the consolidated bonds of Louisiana falling due January 1, 1880, July 1, 1880, and January 1, 1881, assigned them to the state of New York by an instrument in writing, of which the following is a copy: [108 U.S. 76, 80] 'Know all men by these presents, that we, the undersigned, citizens of the state of New York, being the owners and holders of valid claims against the state of Louisiana, arising upon written obligations to pay money, made, executed, and delivered by the state of Louisiana, and now past due and unpaid, being the coupons hereto annexed, in consideration of one dollar to each of us paid by the state of New York, and for other good and valuable considerations, hereby assign and transfer the said claims and coupons to the state of New York.
W. H. Peckham, for New Hampshire.
[108 U.S. 76, 81] W. A. Duer, L. W. Russell, and David Dudley Field, for New York.
[108 U.S. 76, 84] John A. Campbell, for Louisiana.
WAITE, C. J. [108 U.S. 76, 86] Thereupon the state of New York, on the twenty-fifth of April, filed in this court a bill in equity against the state of Louisiana and the officers of the state composing the board of liquidation, with substantially the same averments and the same prayer as in that of the state of New Hampshire. There was, however, a statement in this bill, not in the other, to the effect that many of the consolidated bonds were issued to citizens of the state of New York in exchange for old bonds of Louisiana which they held, and that citizens of New York now hold and own bonds of the same class to a large amount. Testimony has been taken in support of this averment.
The first question we have to settle is whether, upon the facts shown, these suits can be maintained in this court.
Article 3, 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 citizens 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, 13, (1 St. 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 state and citizens of other states, 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 eleventh 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 acts of another state, whose will must always be dear to me, that she too condemned it.'
On the nineteenth 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 re- [108 U.S. 76, 87] ceived the most careful consideration. Mr. Justice WILSON, in his opinion, uses this language, (p. 465:)
And Chief Justice JAY, (p. 479:)
Prior to this decision the public discussions had been confined [108 U.S. 76, 88] 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 eighth 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 [108 U.S. 76, 89] 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 bond 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 a part from the other moneys of the state, and paid over by him to the owner of the claim, after deducting all expenses incurred, not before that time paid by the owner. The bill, 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 it 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 nor 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 act ual control of individual citizens, and are prosecuted and carried on altogether by and for them.
It is contended, however, that, notwithstanding the prohibition of the amendment, the states may prosecute the suits, because, as the 'sovereign and trustee of its citizens,' a state is [108 U.S. 76, 90] 'clothed with the right and faculty of making an imperative demand upon another independent state for the payment of debts which it owes to citizens of the former.' There is no doubt but one nation may, if it sees fit, demand of another nation the payment of a debt owing by the latter to a citizen of the former. Such power is well recognized as an incident of national sovereignty, but it involves also the national powers of levying war and making treaties. As was said in U. S. v. Dickelman, 92 U.S. 524 , if a sovereign assumes the responsibility of presenting the claim of one of his subjects against another sovereign, the prosecution will be 'as one nation proceeds against another, not by suit in the courts, as of right, but by diplomatic negotiation, or, if need be, by war.'
All the rights of the states, as independent nations, were surrendered to the United States. The states are not nations, either as between themselves or towards foreign nations. They are sovereign within their spheres, but their sovereignty stops short of nationality. Their political status at home and abroad is that of states in the United States. They can neither make war nor peace without the consent of the national government. Neither can they, except with like consent, 'enter into any agreement or compact with another state.' Article 1, 10, cl. 3.
But it is said that even if a state, as sovereign trustee for its citizens, did surrender to the national government its power of prosecuting the claims of its citizens against another state by force, it got in lieu the constitutional right of suit in the national courts. There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their government. Indeed, Sir Robert Phillimore says, in his Commentaries on International Law, vol. 2, (2d Ed.) p. 12: 'As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state.' Whether this be in all respects true or not, it is clear that no nation ought to interfere, except under very extraordinary cir- [108 U.S. 76, 91] cumstances, if the citizens can themselves employ the identical and only remedy open to the government if it takes on itself the burden of the prosecution. Under the constitution, as it was originally construed, a citizen of one state could sue another state in the courts of the United States for himself, and obtain the same relief his state could get for him if it should sue. Certainly, when he can sue for himself, there is no necessity for power in his state to sue in his behalf, and we cannot believe it was the intention of the framers of the constitution to allow both remedies in such a case. Therefore, the special remedy, granted to the citizen himself, must be deemed to have been the only remedy the citizen of one state could have under the constitution against another state for the redress of his grievances, except such as the delinquent state saw fit itself to grant. In other words, the giving of the direct remedy to the citizen himself was equivalent to taking away any indirect remedy he might otherwise have claimed, through the intervention of his state, upon any principle of the law of nations. It follows that when the 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 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 been 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 them is consequently dismissed.