Hans v. Louisiana

Billings. J.

In Louisiana v. Jumel and Elliott v. Wilts, reported in 107 U. S. 711, S. C. 2 Sup. Ct. Rep. 128, it was held by this court, and subsequently declared by the supremo court, that the suit was, in substance and effect, a suit against a state, and therefore that this court had no jurisdiction to hear or determine the same. This suit is brought upon obligations similar in all respects to those involved in the Elliott Case, i. e., issued under ihe same legislative and constitutional guaranties, and impeded and defied by the same constitutional ordinance. There the plaintiff was a citizen of the state of New York. Here the plaintiff is a citizen of the slate of Louisiana. The greater includes tlio less. If a citizen of another state cannot sue, a fortiori a citizen of Louisiana cаnnot. The effect of the eleventh amendment of the constitution was a construction by amendment of section 2, art. 8, of the constitution; and so far as, under that section, it had been held that the judicial power included a suit between a state and citizens of another state, when the state was defendant, that construction had been reversed. So far as relates to the class of cases to which this case bеlongs, viz., where a state is sued by its own citizens, the constitution had never included it, but had by implication excluded it.

The general clause, that “the judicial power shall extend to all cases in law' and equity arising under the constitution of the United States,” ‍​​​‌​‌​​‌‌‌‌‌‌‌‌​​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌​​​​‌​​​‌‌‌‍establishes the rule of boundary of jurisdiction so far as it depends upon the subject-matter of tlie suit, but was not meant to change or affect the capacity or liability of parties to be sued. It therefore included all suits involving or arising under the federal constitution, brought by parties competent to sue against parties capable of being sued. It included all suits of a requisite character against рarties so situated or constituted that they could be sued, whether brought by individuals or by the United States or one of the states or by a foreign government; but it had no effect to subject to the jurisdiction of the courts partiеs incapable to be sued.

Indeed, it is to Be observed that in the enumeration of-the cases to which the judicial power extends, (Const, art. 3, § 2,) while there is specified the cases “between a state and сitizens of another state, and between a state and the citizens'thereof and foreign states, citizens or subjects,” there is no mention of cases between a state and its own citizens. It is undoubtedly true that this enumerаtion of parties who could sue merely by virtue of their own character would not at all prevent the inclusion within the judicial power of other cases on account of the nature of the controvеrsy. But when the jurisdiction is given merely by the character of the questions involved, it must be a'suit in law or equity; that is, a demand presented against a party defendant, who, according to its nature and relations to others, cаn be sued. According to the settled ideas relating to governments, a state can no more be sued contrary to its continuing assent than can the dead. No matter what the nature of the controversy against thе dead, human tribunals can take no cognizance of it. No more can they against a state against its will. The reason is that weightiest public reasons prevent that control over the treasury and resourcеs of a state, and the compulsory appropriation thereof to the extinction of its debts on the part of courts, which the recovery of a judgment implies and necessitates. When the constitution was adopted, the effective enforcement of money judgments, obtained in equity, was by sequestration, and in law by the imprisonment of the debtor, which, of course, would be inapplicable to indebted states. .Not more inconsistent with the functions of states, and, indeed, with their very existence, or organisms for the protection of the lives and property and health of the citizens, and their advancement by education, is any judiсial control over the property of the states by bringing them directly before the courts. Though they do not make war or peace, nor regulate foreign or domestic commerce, nor deal with forеign governments, nor with each other through treaties, they still must, as sovereigns, regulate the taxation of the citizens, and must apply the taxes, when levied, to the repelling of pestilence, to the maintenance of schools and public order, and the promotion of the rights of all its citizens in their persons and estates. Its taxes must be levied, and its public lands disposed of, by legislative will, for which a mandamus from the courts, or a marshal’s sаle, cannot be substituted. The payment of the debts of a state is left ‍​​​‌​‌​​‌‌‌‌‌‌‌‌​​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌​​​​‌​​​‌‌‌‍to be enforced by an enlightened public conscience, which, at the time the constitution was adopted, was thought to be an amplе power to prevent all repudiation. It is matter of regret that just creditors of a state should be disregarded or defied; but even that is better than that government should be crippled and public good be possibly defeated, or public necessities go unprovided for.

These are the reasons which were given by the publicists and jurists against a state being sued against its will, — its continuing will, —when the constitution was submitted for adoption. These were the reasons given by Alexander Hamilton in the Federalist, No. 81, (Washington Ed. of 1818,) p. 508, when he says:

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sonso and thе general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. * * * There is no color to pretend that the state governments would, by the adoption of the plan of the convention, be divested of the privilege of paying their debts in their own way, free from every constraint blit that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independ ent of the sovereign will. To what purpose would it be to authorize suits against states for the debts they oioei How could recoveries be enforced? It is evident it eouj.d not be done without ‍​​​‌​‌​​‌‌‌‌‌‌‌‌​​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌​​​​‌​​​‌‌‌‍waging war against the contracting state; аnd to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forсed and unwarrantable.”

See, also, Hr. Madison, as reported in 2 Elliot’s Debates, 390. He there says: “It is not in the power of individuals to call any state into court.” Mr. Webster, in his letter to Baring Bros. & Co., vol. 6, (Everett’s Ed.,) at page 539, says:

“The security for state loans is thе plighted faith of the state as a political community. It rests on the same basis as other contracts with established governments, — the same basis, for example, as loans made by the United States under the authority of congress; that is to say, the good faith of the government making the loan, and its ability to fulfill its engagements. It has been said that the states cannot be sued on these bonds. But neither could the United States be sued, nor, as I suppose, the crown of "England. !Nor would the power of suing giveto the creditors, probably, any substantial additional security. The solemn obligation of a government arising on its own acknowledged bond would not be enhanсed by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment.”

When the legislature of Massachusеtts protested against the decision in Chisholm v. Georgia, 2 Dall. 419, it was against a state being sued by any one. This was the utterance of the conventions of New York and Rhode Island when they voted for the adoption of the constitution. This was thе meaning of the eleventh amendment. ‍​​​‌​‌​​‌‌‌‌‌‌‌‌​​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌​​​​‌​​​‌‌‌‍It introduced no new provision, but corrected what the people of three-fifths of the states thought was an erroneous construction. The reasons which prompted it, and the arguments which secured it, are equally strong against the citizen suing his own state, and against his suing any other state. In both cases the exemption springs from the inability of a court to deal directly with the treasury of a state.

See note to Baltimore & O. R. Co. v. Allen, 17 Red. Hep. 188-197. — [Ed.

In the cases of Cohens v. Virginia, 6 Wheat. 319, and of Ames v. Kansas, 111 U. S. 470, S. C. 4 Sup. Ct. Rep. 437, the court held that when a state instituted a suit it necessarily submitted itself to all reviews in and transfers to the federal courts, which the constitution and laws establishing the court authorized, — i. e., that having voluntarily taken the position of suitor, the state had necessitated the enforcement of all legally established rules by which the rights of parties litigant were ascertained and adjudged; and these cases hold nothing more. The contest there was as to what followed in the progress of a cause where the character of a suitor had been voluntarily assumed by a state to enforce a demand or a proceeding. The contеst here is altogether different, and is whether a state can compulsorily be made a suitor. In both these cases the learned chief justices expressly reserve the question as to the right to present a demand against a state, even in a cause instituted by a state. They say, Chief Justice Marshall speaking originally, and Chief Justice Waite speaking by quotation:

“The argument would have great force to prove that this court could not establish the demand of a citizen upon his state, but is not entitled to the same force when urged to show that this court cannot inquire whether the constitution and laws of the United States protect a citizen from a prosecution instituted against him by a state. ”

After an attentive consideration of the able arguments made and authorities cited by the counsel, my conclusion is that while the act of 1875, so far as jurisdictiоn depends upon the nature of the litigation, makes the jurisdiction of the circuit court co-extensive with the judicial power created by the constitution, and therefore includes all suits in law or equity involving a fedеral question, nevertheless, that does not include a suit ‍​​​‌​‌​​‌‌‌‌‌‌‌‌​​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌​​​​‌​​​‌‌‌‍against a state, for the reason that it is incapable to be sued against its continuing assent; and where, as here, the object of the suit is the recovery оf money, courts would be without any means of enforcing the judgment without an assumption of those powers which, in accordance with the checks and balances and distribution of powers in all well-constituted governments, are un-changeably and forever political, and not judicial.

The exception must be maintained, and the suit dismissed.

Case Details

Case Name: Hans v. Louisiana

Court Name: U.S. Circuit Court for the District of Eastern Louisiana

Date Published: May 15, 1885

Citation: 24 F. 55