133 U.S. 529 (1890), Lincoln County v. Luning

Citation:133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766
Case Date:March 03, 1890
Court:United States Supreme Court

Page 529

133 U.S. 529 (1890)

10 S.Ct. 363, 33 L.Ed. 766










United States Supreme Court.

March 3, 1890


[10 S.Ct. 363] H. F. Bartine, for plaintiff in error.

A. C. Freeman, for defendant in error.



This is an action on bonds and coupons. Judgment was rendered against the county, and it alleges error. The primary

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question is as to the jurisdiction of the circuit court. This jurisdiction is challenged on two grounds: First, it is claimed that, because the county is an integral part of the state, it could not, under the eleventh amendment of the federal constitution, be sued in the circuit court; and, secondly, inasmuch as the act under which the bonds were issued provided for litigation concerning the same, and named a court of the state in which such litigation could be had, that such jurisdiction was exclusive, and prevented suit in the circuit court.

With regard to the first objection, it may be observed that the records of this court, for the last 30 years, are full of suits against counties; and it would seem as though by general consent the jurisdiction of the federal courts in such suits had become established. But, irrespective of this general acquiescence, the jurisdiction of the circuit courts is beyond question. The eleventh amendment limits the jurisdiction only as to suits against a state. It was said by Chief Justice MARSHALL, in Osborn v. Bank, 9 Wheat. 738, 857, that 'the eleventh amendment, which restrains the jurisdiction granted by the constitution over suits against states, is of necessity limited to those suits in which the state is a party on the record.' While that statement was held by this court in the case of In re Ayers, 123 U.S. 433, 8 S.Ct. 164, to be too narrow, yet, by that decision the jurisdiction was limited only in respect to those cases in which the state is a real, if not a nominal, defendant; and while the county is territorially a part of the state, yet politically it is also a corporation created by, and with such powers as are given to it by, the state. In this respect, it is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the state. Railroad Co. v. District of Columbia, 132 U.S. 1, ante, 19.

The constitution of the state of Nevada explicitly provides for the liability of counties to suit. Article 8 is entitled 'Municipal and Other Corporations,' and its 10 sections contain provisions, some applicable to private, and others to both

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private and municipal, corporations. Section 5 declares that 'corporations may sue and be sued in all courts in like manner as individuals;' and that this section is not to be limited to private corporations is evident, not alone from the generality of its language, [10 S.Ct. 364] and from the title of the article, but also from several sections therein in which municipal corporations are expressly I amed. Thus the second section subjects the property of corporations to taxation, with a proviso 'that the property of corporations formed for municipal * * * purposes may be exempted by law;' and section 10 expressly recognizes the county as a municipal corporation; for its language is 'no county, city, town, or other municipal corporation shall become a stockholder,' etc. Thus the liability of counties as municipal corporations to suit is declared by the constitution itself. Further, the act under which these bonds were issued provided for suits against the county in respect to this indebtedness in one of the courts of the state; and this liability of a county to suit...

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