Statement of the Case.

to be superseded by this constitution;' and said State thereby undertook to repudiate her contract obligations aforesaid and to prohibit her officers and agents executing the same, and said State claims that, by said provisions of said constitution, she is relieved from the obligations of her aforesaid contract and from the payment of said coupons held by petitioner, and so refuses payment thereof and had prohibited her officers and agents making such payment.

"Petitioner also avers that taxes for the payment of the interest upon said bonds, due January 1, 1880, were levied, assessed and collected, but said State unlawfully and wrongfully diverted the money so collected, and appropriated the same to payment of the general expenses of the State, and has made no other provision for the payment of said interest.

"Petitioner also avers that said provisions of said constitution are in contravention of said contract, and their adoption was an active violation thereof, and that said State thereby sought to impair the validity thereof with your petitioner in violation of article 1, section 10, of the Constitution of the United States, and the effect so given to said state constitution does impair said contract.

"Wherefore petitioner prays that the State of Louisiana be cited to answer this demand, and that after due proceedings she be condemned to pay your petitioner said sum of ($87,500) eighty-seven thousand five hundred dollars, with legal interest from January 1, 1880, until paid, and all costs of suit; and petitioner prays for general relief."

A citation being issued, directed to the State, and served upon the governor thereof, the attorney general of the State filed an exception, of which the following is a copy, to wit:

"Now comes defendant, by the attorney general, and excepts to plaintiff's suit on the ground that this court is without jurisdiction ratione persona. Plaintiff cannot sue the state without its permission; the constitution and laws do not give this honorable court jurisdiction of a suit against the state, and its jurisdiction is respectfully declined.

"Wherefore respondent prays to be hence dismissed, with costs and for general relief."

Argument for Plaintiff in Error.

By the judgment of the court this exception was sustained, and the suit was dismissed. See Hans v. Louisiana, 24 Fed. Rep. 55. To this judgment the present writ of error was brought.

Mr. J. D. Rouse, (Mr. William Grant was also on the brief,) for plaintiff in error.

I. The sole question arising in this case, and now here presented for the first time, is: "Does the judicial power of the United States extend to a case arising under the Constitution or laws of the United States and originally brought against a State by one of its own citizens?"

The judicial power of the United States is established by the Constitution, and its extent is defined by section 2 of article 3, which is as follows:

"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 ambassadors, 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, and between a State or the citizens thereof and foreign states, citizens or subjects."

The provision is mandatory, and has always been held to include all that the fullest scope given to the language requires. Osborn v. United States Bank, 9 Wheat. 738; Cohens v. Virginia, 6 Wheat. 264; Tennessee v. Davis, 100 Ụ. S. 257; Railroad Co. v. Mississippi, 102 U. S. 135; Mayor v. Cooper, 6 Wall. 247; 3 Webster's Works, 334, 482.

II. But it is contended by the defendant that because of its sovereignty it is excepted from the operation of this general grant of judicial power. There is no warrant for the proposition either in the history of the constitution or in its judicial interpretation.

Argument for Plaintiff in Error.

The sovereignty of the States is limited by the Constitution. No State can enter into any treaty, alliance or confederation; grant letters of marque, pass any bill of attainder, or grant any title of nobility. These and many other rights and powers inherent in sovereign States were surrendered to the federal government by the adoption of the Constitution.

Sovereign States may not be sued without their consent, but by the federal Constitution the States submitted themselves to the judicial power of the Union in many named cases. It was expressly extended to controversies between two or more States; between a State and citizens of another State, and between a State and foreign states, citizens or subjects.

This was necessary for the establishment of justice, and to insure that domestic tranquillity which was among the chief objects of the Constitution; because controversies would inevitably arise between the States themselves, as well as between the States and citizens of sister or foreign states, which might not involve any question arising under the Constitution or laws of the United States, jurisdiction over which had already been given in all cases, without regard to parties, whether States or individuals.

In Chisholm v. Georgia, 2 Dall. 419, a citizen of South Carolina sued the State of Georgia, invoking jurisdiction under that clause of the Constitution extending the judicial power to controversies between States and citizens of other States. It was contended on behalf of the State of Georgia that while a State might sue a citizen of another State in the federal courts, the State could not there be sued; but this court held that it could be.

This decision was followed by the adoption of the Eleventh Amendment to the Constitution, declaring that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."

This is a limitation upon the exercise of judicial power in the cases named. Upon no principle of construction can the limitation be applied to other cases. No change in the Con

Argument for Plaintiff in Error.

stitution was made in any other respect. The judicial power still extends to all cases over which it was granted, excepting only suits in law or equity commenced or prosecuted against a State by a citizen of another State or of a foreign State. Suits may still be brought by a foreign State against a State of the Union, by one State against another or against the citizens of another State. Wisconsin v. Pelican Ins. Co., 127 U. S. 265.

III. The jurisdiction has been exercised in cases too numerous to mention. See, especially, Rhode Island v. Massachusetts, 12 Pet. 657; New Hampshire v. Louisiana, 108 U. S. 76, 90; Tennessee v. Davis, 100 U. S. 257, 266; Poindexter v. Greenhow, 114 U. S. 270; Cohens v. Virginia, 6 Wheat. 264, 279; Ames v. Kansas, 111 U. S. 449; Carter v. Greenhow, 114 U. S. 317, 322; Civil Rights Cases, 109 U. S. 3, 12.

In In re Ayers, 123 U. S. 443, the contempt proceedings were in a suit instituted by aliens, and therefore held not to be within the jurisdiction of the court, because of the Eleventh Amendment. The cases of Hagood v. Southern, 117 U. S. 52, and Louisiana v. Jumel, 107 U. S. 711, were held to be in effect suits against a State within the prohibition of the amendment, the plaintiffs being citizens of another State.

IV. The third article of the constitution declares that "the judicial power of the United States shall be vested in one Supreme Court and in such other inferior courts as the Congress may from time to time ordain and establish." The language of this article is mandatory upon the legislature. Martin v. Hunter's Lessee, 1 Wheat. 304, 334.

By the judiciary act of 1789, sec. 13, it is enacted that "the Supreme Court shall have exclusive jurisdiction of controversies of a civil nature where a State is a party, except between a. State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction," 1 Stat. 80, c. 20, § 13; thus clearly recognizing that controversies might arise between a State and its citizens within the judicial power of the United States.

The Constitution is the supreme law of the land, and upon

Argument for Plaintiff in Error.

its adoption the sovereignty of the States ceased to exist as to all matters confided to the federal government. Dodge v. Woolsey, 18 How. 331. By their own consent the States submitted themselves to the judicial power of the United States in all cases to which that power extends. The submission of the original States was voluntary. The territory of Orleans possessed no sovereignty, but the act of Congress, authorizing the people thereof to form a constitution and state government, required the convention to adopt the Constitution of the United States, and to transmit to Congress the instrument by which its consent to said Constitution was given, 2 Stat. 641, c. 21; and the act admitting the State of Louisiana into the Union declared this condition, among others, a fundamental condition of such admission. 2 Stat. 701, c. 50.

V. The State of Louisiana, when it entered into the contract upon which the plaintiff sues, submitted itself to the judicial power for its enforcement.

Section 11 of the act under which the bonds were issued provided that each provision of the act should be a contract between the State of Louisiana and each and every holder of the bonds. A constitutional amendment further provided that no court should enjoin the payment of the principal, or the levy and collection of the tax therefor, and that the judicial power should be exercised, when necessary, to secure such levy, collection and payment. It was competent for the State to thus subject itself to suit in the state courts. Curran v. Arkansas, 15 How. 304; Davis v. Gray, 16 Wall. 203, 221.

By the submission of herself to the judicial power of her own courts the State submitted herself to the judicial power of the federal courts having jurisdiction ratione materiæ. She submitted herself to the jurisdiction of the court below, because she made no exception. Even the Supreme Court of Louisiana, in the case of the State ex rel. Hart v. Burke, put her exemption from suit to enforce this contract upon the ground that the constitutional amendment of 1874, which submitted the State of Louisiana to the judicial power, had been repealed by the Constitution of 1879 and that the power of submission was taken away.