118 Cal. 639 | Cal. | 1897
Lead Opinion
The defendant made his promissory note to the plaintiff for the sum of two thousand dollars, and in an action brought against him thereon in the superior court for San Francisco suffered default, and judgment was rendered against him and in favor of the plaintiff for the full amount of the note. Thereafter upon his motion, based upon his affidavit that at and prior to the commencement of the action and ever since he had been consul general of the republic of Chili, residing in San
Tbe correctness of tbe order appealed from is to be deteimined upon the construction to be given to tbe constitution of tbe United States and the legislation of Congress thereunder, and not upon any consideration of tbe rules of international law. The immunity of ambassadors and public ministers from suits in tbe courts of tbe country to which they are sent is not extended by any principles of international law to consuls. “Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their official duties, and whatever special privileges may be conferred upon them by the local laws and usages or by international compact, they are not entitled by tbe general law of nations to tbe peculiar immunities of ambassadors. In civil and criminal eases they are subject to tbe local law in the same manner with other foreign residents owing a temporary allegiance to the state.” (Wheaton’s International Law, see. 249; 1 Kent’s Commentaries, 44; Story on the Constitution, sec. 1660; Giddings v. Crawford, Taney, 1.)
Section 2 of article III of tbe constitution of the United States declares that: “The judicial power shall extend .... to all eases affecting ambassadors, other public ministers and consuls”; and, “In all cases affecting ambassadors, other public ministers and consuls, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” It is held that the judicial power thus vested in the courts of the United States is t-o be exercised in accordance with such legislation as Congress may prescribe. Wherever the constitution does not make this jurisdiction exclusive of state authority, it may be made so by Congress, and Congress may also declare the extent to which the state courts may exercise concurrent jurisdiction, as well as at wbat stage of procedure the jurisdiction of the United States courts may attach in cases originally commenced in the state courts—either after
Section 687 of the Bevised Statutes of the United States, which became the law on the subject from and after December 1, 1873, declares that the supreme court shall have “original, but not exclusive jurisdiction of all suits in which a consul or vice-consul is a party.” And by section 563 jurisdiction is given to the district courts: .... 17. Of all suits against consuls or vice-consuls,” with the exception of certain offenses previously named. It had been held in Giddings v. Crawford, supra, that the provision in the constitution giving to the supreme court “original” jurisdiction in all cases affecting consuls did not imply that that jurisdiction was to be exclusive, and in Bors v. Preslon, 111 U. S. 252, the supreme court approved this ruling and held that Congress could confer upon the subordinate courts of the United States concurrent original jurisdiction in cases affecting consuls. It was also held in Claflin v. Houseman, supra, that the provision extending the judicial power of the United States to “all cases” arising under the constitution and laws of the United States does not imply that the jurisdiction of the •federal courts is necessarily exclusive.
Section 711 of the Bevised Statutes, as originally enacted, declared: “The jurisdiction vested in the courts of the United States, in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states.8. Of all suits or proceedings against ambassadors or other public minis
By the above amendment to section 111, removiug from the statutes the express provision that the jurisdiction of the federal courts in suits or proceedings against consuls should be exclusive of the courts of the several states, Congress must have intended to declare that such jurisdiction should no longer be exclusive, unless it was made exclusive either by the constitution itself or by other existing legislation. There is, however, as above seen, no express declaration by Congress that such jurisdiction is exclusive, hut it must be conceded that a consul who has been recognized by the President and admitted to the exercise of his official functions shall not, so long as he continues in the exercise of those functions, be deprived of the benefits of the provision in the constitution extending the judicial power of the United States to all cases in which he is affected, and that, unless there is some law by which he may invoke this judicial power for the purpose either of removing the cause into the courts of the United States before judgment, or to review the judgment of the state court, a state court can have no jurisdiction to entertain an action in which he is a defendant. Under this provision of the constitution he is entitled to invoke the exercise of that power in any ease to which he may he a party, and, if Congress has made any provision by which he can avail himself of this right, he is amply protected in the enjoyment of this provision of the constitution. The constitution does not declare that he shall he exempt from the jurisdiction of the state courts, hut that the judicial power of the United States shall extend to all cases affecting him. It is for Congress to determine the mode and time at which he may invoke this jurisdiction, and, if that body has provided a means by which he can avail himself of this judicial power, he is not deprived of any right given him by the constitution. There is no provision in the removal act of 1875, or in that of 1887, for removing to
The superior court, therefore, had jurisdiction to entertain the action against the defendant, and as he did not appear in answer to the complaint, or in any mode present a defense to the action, the court property rendered judgment against him, and
The order is reversed.
Dissenting Opinion
dissenting. I dissent. My views of the ease were expressed in my opinion delivered when the case was in Department.
The following is the opinion of Department Two, rendered on July 16, 1896, referred to and adopted by Mr. Justice McFarland:
McFARLAND, J. — The only question presented in this case is, whether the superior court had jurisdiction in a civil ease over the person of the defendant, who is the consul general of Chili for the United States, resident at San Francisco, California. The court below held that it had no jurisdiction, and the plaintiff appeals from the judgment.
The question was determined adversely to the contention of appellant by this court in the case of Miller v. Van Loben Sels, 66 Cal. 341. Appellant contends that said case should not be considered as conclusive authority upon the question, because at the time it was decided the ninth section of the judiciary act of 1789 expressly provided that the jurisdiction of the United States over consuls was exclusive; and that since then, on February 18, 1875, the Congress of the United States, by an act entitled “An act to correct errors, etc., in the Revised Statutes," repealed the said section of the said act of 1789; and that the court in said case of Miller v. Van Loben Sels, supra, assumed that said section 9 was still in existence, and that its attention was not called to the said repeal of said section. The attention of the court in that case was called to such repeal by a petition for rehearing; but it is contended by appellant that the court must be deemed to have not considered a point presented for the first time in such petition. Whether that decision should or should not be considered as final authority upon the question, we are satisfied that the rule there declared was correct, even in view of the fact that said section of