158 N.Y.S. 92 | N.Y. Sup. Ct. | 1916
Action for a separation under section 1762 of the Code of Civil Procedure. The parties were married April-9, 1913, in the borough of Brooklyn, where they resided at the commencement of the action.The defendant appears specially for theo purpose of contesting the jurisdiction of the court. Alleging that he is consul for the republic of Peru in the city of New
The Constitution of the United States extends the judicial power of the United States to all cases affecting ambassadors, other public ministers and consuls. U. S. Const, art. II, § 2, subd. 1. Subdivision 2 of the same article and section provides that in all cases affecting ambassadors, other public ministers and consuls, the Supremo Court shall have original jurisdiction. The Constitution further declares that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. U. S. Const! art. Ill, § 1. Inferior courts were established by Congress about six months after the adoption of the Constitution, by what is commonly known as the Judiciary Act of 1789 (Statutes of 1789, chap. 20); which provided that District Courts should have jurisdiction “ exclusively of the courts of the several states ” of all suits against consuls, except for certain offenses not material to be considered here. § 9.
In view of the language of the Constitution, that the Supreme Court should have original jurisdiction in all cases affecting consuls, question early arose and was for some years mooted whether Congress could lawfully vest original jurisdiction of such cases in District Courts. United States v. Ravara (1793), 2 Dall. 297; Marbury v. Madison (1803), 1 Cranch, 137; Osborn v. Bank of the United States (1824), 9 Wheat. 738; United States v. Ortega (1826), 11 Wheat. 467. These cases were closely analyzed. by Chief Justice Taney, at circuit, in Gittings v. Craw
In Davis v. Packard (1833), 7 Pet. 276, the Supreme Court of the United States, upon writ of error to the Court for the Correction of Errors of the state of New York (6 Wend. 327), declared further that the provision of the Judiciary Act which made the jurisdiction of district courts exclusive of state courts in civil actions against consuls was likewise constitutional. Writing in the Davis Case, supra, at page 281, Mr. Justice Thompson says: “As an abstract question, it is difficult to understand on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power of the United States extends to all cases affecting ambassadors, other public ministers and consuls, etc. And the judiciary act of 1789 (2 Laws U. S., sec. 9), gives to the district courts of the United States, exclusively of the courts of the several states, jurisdiction of all suits against consuls and vice-consuls, except for certain- offenses mentioned in the act. ’ ’
The foregoing provisions of the Judiciary Act remained in force for about eighty-six years, having-passed meanwhile, unchanged, into section 711 of the Revised Statutes of the United States; paragraph 8 of which section contained the clause which made the
About thirty-six years after the amendment of 1875 Congress enacted the present Judicial Code. This act was passed March 3, 1911, and, while continuing the original jurisdiction of district courts, it also expressly restored the former exclusive jurisdiction of district courts of all civil actions against consuls. Judicial Code, § 1; Id. § 24, subd. 18; Id. § 25-b, subd. 8. Such restoration carried with it, upon the unimpeachable authority of Davis v. Packard, supra, the constitutionality of the Judicial- Code upon the question under consideration.
In the highest court of the state of New York the same question has been considered and determined. Valarino v. Thompson, 7 N. Y. 576. In the Valarino case, Buggies, Ch. J., cites the Davis Case, supra, and says: “ The defendant, therefore, is exempted as a consul from liability to be sued in the state courts. But this exemption is neither his personal privilege nor the privilege of the state by which he was commissioned. It is not founded on the law of nations, or on. any treaty between his government and that of this country. If it can be regarded as a privilege belonging to him or to his office, it is only because it secures to
The plaintiff has not cited nor has the court discovered any federal decision in which jurisdiction of a civil action against a consul has been declined. Pooley
It is hardly necessary to add that the Constitution of the United States and the laws of the United States which are made in pursuance thereof are ‘ ‘ the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws.- of any State to the Contrary notwithstanding.” U. S". Const, art. VI, subd. 2.
The service of the summons will be vacated and the complaint will be dismissed, without costs.
Ordered accordingly.