24 F. 55 (E.D.La. 1885), Hans v. State of Louisiana

Citation:24 F. 55
Case Date:May 15, 1885
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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24 F. 55 (E.D.La. 1885)




United States Circuit Court, E.D. Louisiana.

May 15, 1885

At Law. On exception to jurisdiction.

This suit was an action at law against the state of Louisiana by a citizen of said state for the recovery of the amount of certain coupons held by him representing the interest upon the 'consolidated bonds' of said state, which fell due January 1, 1880. The bonds were authorized by an act of the legislature passed in 1874, which provided a continuing annual tax levy to meet the interest upon said bonds and a continuing annual appropriation thereof to its payment, and declared each provision of the act to be a contract between the state and every holder of the bonds issued under it. An amendment to the constitution of the state was adopted the same year, which is as follows:

'No. 1. The issue of consolidated bonds, authorized by the general assembly of the state, at its regular session in the year 1874, is hereby declared to create a valid contract between the state and each and every holder of said bonds, which the state shall be no means and in nowise impair. The said bonds shall be a valid obligation of the state in favor of any holder thereof, and no

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court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor. To secure such levy, collection, and payment the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until said bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the state to the holders of said bonds as the principal and interest shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.'

By the new constitution adopted in 1879 it was ordained 'that the coupon of said consolidated bonds falling due the first of January, 1880, be, and the same is hereby, remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the state government. ' And by article 257 said constitution also prescribed that 'the constitution of this state adopted in 1868, and all amendments thereto, is declared to be superseded by this constitution. ' The plaintiff alleged that by said provisions of said constitution the state claimed to be relieved of the obligation of her contract to pay the coupons held by him, and refused such payment. He also alleged that said provisions of the constitution of 1879 impaired the validity of said contract, in violation of article 1 of section 10 of the constitution of the United States.

The state appeared and filed an exception to the jurisdiction of the court, ratione personae; that the state could not be sued without her permission; that the constitution and laws do not give the court jurisdiction permission; that the constitution and laws do not give the court jurisdiction of a suit against the state; and she declined the jurisdiction.


May it please Your Honor:

The attorney general having waived the opening of this discussion, I am compelled to anticipate his argument.

The action is brought by a citizen of the state of Louisiana against the state of Louisiana. The exception is to the jurisdiction of the court to entertain such an action, because the state of Louisiana is a sovereign and has not consented to be sued in this court, and declines to submit herself to its jurisdiction. The first question arising is, how far is the state of Louisiana sovereign? In some respects she possesses the elements of sovereignty; in many others she has been deprived of them with her consent, or, rather, as she is not one of the 13 original states, she has never enjoyed them. The original 13 colonies surrendered a portion of the sovereignty which they possessed as independent states when they entered into the Union under the constitution. * * * What sovereignty remained in the state of Louisiana when she became one of the United States under the constitution? She has no power to make treaties with foreign nations; she cannot issue letters of marque; she cannot enter into an alliance with a foreign state; she cannot pass any laws regulating or imposing duties upon imports; and there are various matters in which she does not possess the power of sovereign states. When the states entered into the Union, which some have seen fit to term a compact, and others properly denominate a nation, they surrendered to the nation which

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they created, (or, properly speaking, which the people of the states created,) jurisdiction over those matters proper for the nation to have control of, rather than to be left to the individual constituents of that nation. By the adoption of the federal constitution they surrendered to the United States a certain degree of power to be exerted through its judiciary.

Section 2 of article 3 of the constitution of the United States provides 'that the judicial power shall extend 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 embassadors, 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; 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. ' Thus was the judicial power extended by the very letter of the constitution to controversies to which a state is a party. It was a necessity of the government which they formed that such a power should be vested, and especially was it a necessity that the power should be vested in cases which might arise under the constitution or laws of the United States.

In the case of Osborne v. Bank, 9 Wheat. 738, Chief Justice MARSHALL says that 'this clause of the constitution enables the judicial department to receive jurisdiction to the fullest extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. ' And again he says that 'all governments which are not extremely defective in their organization must possess in themselves the power of expounding as well as enforcing their own laws.'

So, also, Webster in his second speech on Foote's resolution said: 'The people have wisely provided in the constitution itself a proper, suitable mode and tribunal for settling questions of constitutional law. These are in the constitution grants of power to congress, and restrictions on these powers. There are also prohibitions on the states. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, sir, that the constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. This, sir, was the first great step. By this the supremacy of the constitution and laws of the United States is declared. The people so will it. No state law is to be valid which comes in conflict with the constitution or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the constitution itself decides also by declaring that the judicial power shall extend to all cases arising under the constitution and laws of the United States. These two provisions cover the whole ground. They are in truth the key-stone of the arch. With these it is a government; without them it is a confederation.' 3 Webst.Works, 334. Again he said in his great argument before the senate of the United States, on the question whether the constitution was a compact between the sovereign states; 'And in regard, sir, to the judiciary, the constitution is still more express and emphatic. It declares that the judicial power shall extend to all cases in law or equity arising under the constitution, laws of the United States, and treaties, that there shall be one supreme court, and that this supreme court shall have appellate jurisdiction of all these cases, subject to such exceptions as congress may make. It is impossible to escape from the generality of these

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words. If a case arises under the constitution, that is, if a case arises depending on the construction of the constitution, the judicial power of the United States extends to it. It reaches the case, the question; it attaches the power of the national judicature to the case itself in whatever court it may arise or exist, and in this case the supreme court has appellate jurisdiction over all courts whatever. No language could provide with more effect and precision than is here done for subjecting constitutional questions to the ultimate decision of the supreme court. An, sir, this is exactly what the convention found it necessary to provide for, and intended to provide for.'

In the case of Mayor v. Cooper, 6 Wall. 253, the supreme court say: 'It is the right and duty of the...

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