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Argument for Appellee.
theory) he would have sued to him for process allowing like hearing and determination against a private person, supposing his cause of action had been against the latter, such favorable endorsement being at the same time as much ex debito justitiæ in the one case as the original writ would have been in the other.
The practical operation of that proceeding is such that if the coupons now in suit had been taken from bonds issued in 1869 by the British government, and payment thereof had been refused, the Crown would be obliged by the common law, upon application of this citizen of North Carolina, to allow to him the right of a suit in its regular courts against itself to enforce his claim. If the common law be otherwise in America the general belief that our citizens are in matters of right more upon an equality with their own governments than English subjects (or indeed than such citizens themselves) are with the English Crown may require revision. The Queen v. Von Frantzin, 2 DeG. & J. 126; Windsor & Annapolis Railway v. The Queen, 11 App. Cas. 607; The Queen v. Doutre, 9 App. Cas. 745 ; Thomas v. The Queen, L. R. 10 Q. B. 31 ; Tobin v. The Queen, 16 C. B. (N. S.) 310; Feather v. The Queen, 6 B. & S. 257; Canterbury v. The Attorney General, 1 Phillips, Ch. 306; Monckton v. The Attorney General, 2 Macn. & Gord. 402; De Bode v. The Queen, 3 H. L. Cas. 449; Frith v. The Queen, L. R. 7 Ex. 365; Rustomjee v. The Queen, 2 Q. B. D. 69; Kirk v. The Queen, L. R. 14 Eq. 558. See, also, Chitty's Prerogatives of the Crown, 345; 2 Inst. 269; 3 Inst. 31 ; 4 Inst. 21; 3 Bl. Com. 49 ; Bowyer Const. Law Eng. 141; Broom Const. Law, 509; Daniell Ch. Pl. and Pr. ed. 1846, c. 84, $ 2; Manning, Exch. Pr. 84, ed. 1827; Banker's Case, 14 State Trials, 1:; 2 Stubbs' Const. Hist. 555, 557; Petition of Right, 3 State Trials, 60 to 230; Ashby v. White, 14 State Trials, 695; Smith v. Upton, 6 M. & G. 251; Mirror of Justices, 4, 10, 225.
II. The forms by which creditors of the Crown are referred to courts of justice correspond substantially with those of the like reference in cases betwixt subjects.
Petition of Right is sometimes spoken of as if it were a form of proceeding that in point of principle is entirely unlike
Argument for Appellee.
those ordinarily in use by litigants in England; ex. gr., that by original writ. It is submitted that this assumption is not correct.
In the same way application to the king for justice against himself is a “petition,” a short endorsement upon which opens the courts to the plaintiff for the case to which that endorsement' refers, substantially in the same manner as is done in ordinary cases, either by the king's original writ in answer to an oral application or "petition " or by a bill and subpoena.
That the application, or supplication, by petition of right is made to the king in person, whereas ordinary applications for original process are to his subordinates (the allowance in all cases being equally ex debito justitiæ) is explained by the circumstance that the class of cases in which he himself was to be defendant has never been so large as to prevent his personal attention to applications for original process in that. So that the issue of such process in that class is seen to be a survival from the time when the king issued all process, and not as sometimes, and perhaps without much consideration suggested, an abnormal provision of English law. Thus it is seen that the proceeding by petition of right is, even in point of form, analogous to the ordinary methods of beginning suits, and that it is in his character as the original Fountain of Justice, and by way of mere survival from his former vast duties, in that character and of the same sort, that the king acts therein.
III. By passing a law which impairs the obligation of a contract of its own, or by depriving the other party of his property therein without due process, a State becomes subject to the judicial power of the United States for whatever relief judicial power ordinarily exerts to establish and give effect to violated contracts.
IV. The act of 1875, c. 137, investing circuit courts with jurisdiction over “all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars and arising under the Constitution or laws of the United States” has
Dissenting Opinion : Harlan, J.
thereby conferred upon these courts judicial power to enforce the obligation of contracts of a State of that value when impaired by its own laws.
V. Inasmuch as laws passed by the State of North Carolina, Resolution of Jan. 20, 1870; Act of 1870, c. 71, March 8; Act of 1874, c. 2, Nov. 23, and a constitutional amendment adopted in 1880; Const. art. 1, sec. 6; impair obligations of that State created in 1869, by issuing the coupons now in suit, and deprive the holders of such coupons of property without due process of law, the opinion of the presiding judge below was correct.
Mr. Edward L. Andrews also argued for appellee.
MR. JUSTICE BRADLEY, after stating the case as above, delivered the opinion of the court.
We think it perfectly clear that the suit against the auditor in this case was virtually a suit against the State of North Carolina. In this regard it comes within the principle of the cases of Louisiana v. Jumel, 107 U. S. 711 ; Cunningham v. Macon & Brunswick Railroad Co., 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; and In re Ayers, 123 U. S. 443. We do not think it necessary to consider that question
The other point, the suability of the State, is settled by the decision just rendered in Hans v. The State of Louisiana, ante, 1.
To the question on which the judges of the Circuit Court were opposed in opinion, our answer is in the negative, namely, that the suit could not be maintained in the Circuit Court against the State of North Carolina by the plaintiff, a citizen thereof.
The decree of the Circuit Court is
miss the bill of complaint. MR. JUSTICE HARLAN dissenting.
I dissent from so much of the judgment in this case as holds that this suit cannot be maintained against the auditor of
the State of North Carolina. The legislation of which complaint is here made impaired the obligation of the State's contract, and was therefore unconstitutional and void. It did not, in law, affect the existence or operation of the previous statutes out of which the contract in question arose. So that the court was at liberty to compel the officer of the State to perform the duties which the statutes, constituting the contract, imposed upon him. A suit against him for such a purpose is not, in my judgment, one against the State. It is a suit to compel the performance of ministerial duties, from the performance of which the state's officer was not, and could not be, relieved by unconstitutional and void legislative enactments.
EILENBECKER v. DISTRICT COURT OF PLYMOUTH
ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.
Na 101. Submitted January 8, 1890,
- Decided March 3, 1890.
The first eight of the Articles of Amendment to the Constitution of the
United States have reference only to powers exercised by the United
States, and not to those exercised by the States. The provision in Article III of the Constitution of the United States respect
ing the trial of crimes by jury relates to the judicial power of the United
States. Article VI of the Amendments to the Constitution of the United States re
specting a speedy and public trial by jury; Articles V and VI respecting the right of persons accused of crime to be confronted with the witnesses; Article VIII respecting excessive fines, and cruel and unusual punishments; and Article XIV respecting the abridgment of privileges, the deprivation of liberty or property without due process of law, and the denial of the equal protection of the laws, are not infringed by the statutes of Iowa authorizing its courts, when a person violates an injunction restraining him from selling intoxicating liquors, to punish him as for contempt by
fine or imprisonment or both. Proceedings according to the common law for contempt of court are not
subject to the right of trial by jury, and are “due process of law,”
within the meaning of the Fourteenth Amendment to the Constitution. All the powers of courts whether at common law or in chancery may be
Opinion of the Court.
called into play by the legislature of a State, for the purpose of suppressing the manufacture and sale of intoxicating liquors when they are prohibited by law, and to abate a nuisance declared by law to be such; and
the Constitution of the United States interposes no hindrance. A District Court of a county in Iowa is empowered to enjoin and restrain a
person from selling or kezping for sale intoxicating liquors, including ale, wine and beer, in the county, and disobedience of the order subjects the guilty party to proceedings for contempt and punishment thereunder. The case is stated in the opinion. Mr. William A. McKenney for plaintiffs in error.
Mr. J. S. Struble, Mr. S. M. Marsh and Mr. A. J. Baker, attorney general of Iowa, for defendant in error.
MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the Supreme Court of the State of Iowa.
The judgment which we are called upon to review is one affirming the judgment of the District Court of Plymouth County in that State. This judgment imposed a fine of five hundred dollars and costs on each of the six plaintiffs in error in this case, and imprisonment in the jail of Plymouth County for a period of three months, but they were to be released from confinement if the fine imposed was paid within thirty days from the date of the judgment.
This sentence was pronounced by the court as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining each of the defendants from selling, or keeping for sale, any intoxicating liquors, including ale, wine and beer, in Plymouth County, and the sentence was imposed upon a hearing by the court, without a jury, and upon evidence in the form of affidavits.
It appears that on the 11th day of June, 1885, separate petitions in equity were filed in the District Court of Plymouth County againsť each of these plaintiffs in error, praying that they should be enjoined from selling, or keeping for sale, intoxicating liquors, including ale, wine and beer, in that county. On the 6th of July the court ordered the issue of preliminary injunctions as prayed. On the 7th of July the writs were