# McNutt v. Bland/Dissent Daniel

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* Dissenting Opinion Daniel
United States Supreme Court
43 U.S. 9
McNutt v. Bland
Mr. Justice DANIEL dissented.
From the opinion just pronounced on the part of the court in this cause, I am constrained to differ. Although it ever must be with unaffected diffidence that I shall find myself opposed to a majority of my brethren, still a feeling like that just adverted to, should not, and properly cannot, induce in me a relinquishment of conclusions formed from examinations carefully made, and upon decisions which appear to be distinctly, as they have been repeatedly announced. My opinion is, that the judgment of the Circuit Court against the plaintiff below ought to be affirmed, for the reason that the court could not properly take cognizance of his cause. Under systems of polity compounded as are the federal and state governments of this Union, instances of conflicting power and jurisdiction, real or apparent, will frequently arise, and will sometimes run into niceties calculated to perplex the most astute and practised expositors. For myself, I must believe that the surest preventive of such instances, their safest and most effectual remedy when they shall occur, will be found in an adherence to limits which language in its generally received acceptation prescribes, and in shunning not merely that which such acceptation may palpably forbid; but, as far as possible, whatever is ambiguous or artificial. In adopting or commending the rule thus indicated, I undertake to propound no new principle of construction to this court, to essay no innovation upon its doctrines. I plant myself, on the contrary, upon its oft repeated decisions, and invoke their protection for the interpretation now insisted upon.
The action in the Circuit Court was instituted in the name of Alexander McNutt, governor of the state of Mississippi, (who was the successor of Charles Lynch,) who sues for the use of Thomas Leggett and others, citizens of the state of New York, against Bland, Humphreys, and Geissen, citizens of the state of Mississippi. It was founded on a bond executed by Bland, as sheriff of the county of Claiborne in the state above mentioned. The pleadings, so far as they relate to the conduct of the sheriff in fulfilment of his duties, or in dereliction thereof, are irrelevant to the question here raised, and need not therefore be examined. The proper question for consideration here is this whether upon the case as presented upon the declaration, the Circuit Court of Mississippi could take jurisdiction. McNutt is the party plaintiff upon the record, in whom is the legal right of action. Leggett and others, who are said to be the beneficiaries in the suit, and in whom is the equitable interest, are not the legal parties to the suit at law, and could not maintain an action upon the bond to which they were not parties.
Is McNutt to be considered as suing in his private individual character, and the addition 'governor of the state of Mississippi,' to be regarded as merely a phrase of description? Or is he to be viewed as the representative of the state of Mississippi, or rather as identified with the sovereignty of that state, and having vested in him the exercise of her executive authority? Let both branches of this inquiry be cursorily pursued. If McNutt is to be regarded as a private party to the action, whether in his own interest, or as the private agent of the state for certain purposes, it would indeed seem to be too late, and entirely supererogatory, to construct an argument to prove, that to warrant either the commencement or prosecution of a suit in his name in a Circuit Court of the United States, his citizenship must be averred and shown upon the record. Decisions to this effect may be said to have been piled upon the question, for they may be traced from a period coeval almost with the passage of the judicial act, down to a comparatively recent day; ranging through at least ten volumes of the decisions of this court: and ruling, it is believed without an exception, that wherever jurisdiction is to be claimed from the citizenship or alienage of parties, such citizenship or alienage must be expressly set forth: ruling moreover, that wherever jurisdiction is claimed from the character of parties, it must be understood as meaning the parties to the record.
The first case in support of these positions, is that of Bingham v. Cabot et al., from 3 Dall., 382, instituted in 1797, in which the plaintiffs were styled in nar. as John Cabot, (with the co-plaintiffs,) described as being 'all of our said district of Massachusetts,' and as complaining that 'said William at Boston being indebted, &c.' Lee, attorney-general, insisted 'that there was not a sufficient allegation in the record of the citizenship of the parties to maintain the jurisdiction of the Circuit Court, which is of limited jurisdiction.' Dexter, on the other hand, urged 'that stating in the declaration the party to be of a particular place, designates his home, and of course his citizenship.' The court were clearly of opinion, 'that it was necessary to set forth the citizenship (or alienage where a foreigner was concerned) of the respective parties, in order to bring the case within the jurisdiction of the Circuit Court.' In the year 1797, were decided in the Supreme Court the cases of Turner v. Eurille, and of Turner, admin., &c. v. The Bank of North America, reported in 4 Dall., the former at pp. 7 and 8, the latter on pp. 8, 9, 10 and 11. The declaration in the former case set out a demand by the Marquis de Casa Eurille, of _____, in the island of _____, against Stanley and the intestate of Turner & Greene, merchants and partners at Newbern in the said district. Upon objection to the jurisdiction for want of a proper description of parties-By the court-'The decision in the case of Bingham v. Cabot et al. must govern the present case; let the judgment be reversed with costs.' Turner, admin. of Stanley v. The Bank of North America was an action upon a promissory note drawn at Philadelphia by Stanley, endorsed by Biddle & Company to the Bank of North America. The nar. stated that the president and directors were citizens of the state of Pennsylvania, that Turner the administrator, and Stanley the intestate, were citizens of the state of North Carolina; but of Biddle & Company, the payers and endorsers, there was no other description than 'that they used trade and merchandise at Philadelphia or North Carolina.' Ellsworth, chief justice, in delivering the opinion of the court, after remarking that the Bank of North America, as well as the drawer of the note, was properly described, proceeds thus: 'The error assigned is, that it does not appear from the record that Biddle & Company, the promisees, or any of them, are citizens of a state other than that of North Carolina. The Circuit Court, though an inferior court in the language of the Con stitution, is not so in the language of the common law. A Circuit Court, however, is of limited jurisdiction, and has cognizance not of cases generally, but only of a few specially circumstanced; and a fair presumption is, not (as with regard to a court of general jurisdiction) that a cause is within its jurisdiction unless the contrary appears, but rather that a cause is without its jurisdiction till the contrary appears. This renders it necessary to set forth, upon the record of a Circuit Court, the facts and circumstances which give jurisdiction, either expressly or in such manner as to render them certain by legal intendment. Among those circumstances, it is necessary, where the defendant is a citizen of one state, to show that the plaintiff is a citizen of some other state, or an alien. Here the description of the promisee only is, that he used trade at Philadelphia or North Carolina, which contains no averment that he was a citizen of a state other than North Carolina, or an alien. We must therefore say there was error.' In Mossman v. Higginson, 4 Dall., 14, the same doctrine is affirmed, and the court conclude their opinion with the following explicit language: 'Neither the Constitution, nor the act of Congress, regards, on this point, the subject of the suit, but the parties. A description of the parties is therefore indispensable to the exercise of jurisdiction. There is here no such description.' The case of Course et al. v. Stead et ux., 4 Dall., p. 22, is marked by one trait which peculiarly illustrates and enforces the principle ruled in the cases previously cited. In this last case, a supplemental bill was filed making a new party to a suit previously pending, but in the supplemental bill no description of the citizenship of this new defendant was given: the absence of such description having been assigned for error, it was contended that such a description was not necessary in the supplemental suit, which is merely an incident of the original bill brought in the same court; but the Supreme Court sustained the objection, and reversed the decree of the Circuit Court on the ground of jurisdiction. Next in the order of time is the case of Wood v. Wagnon, 2 Cranch, 9. Where the statement in the pleadings was that Wagnon, a citizen of Pennsylvania, showeth, that James Wood, of Georgia, &c. The judgment was reversed for the defect that the plaintiff and defendant were not shown by the pleadings to be citizens of different states.
In Hepburn and Dundas v. Elzey, 2 Cranch, 445, the decision turned upon a defect in the description of a party necessary to give jurisdiction. Winchester v. Jackson, 3 Cranch, 515. The writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different states. In In Kemp's Lessee v. Kennedy, this court declare, that 'the courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them.' 5 Cranch, 185. The same in effect, the same indeed in terms, is the decision of this court in Montalet v. Murray, 4 Cranch, 46. Again, the principle that the character which authorizes access to the Circuit Court must be apparent upon the record, is strikingly exemplified in Chappedelaine et al. v. Dechenaux, 4 Cranch, 306. It this case the plaintiffs were trustees, not suing in their own interest; yet as they were aliens and as such entitled to sue in the Circuit Courts of the United States, this court, in virtue of that character, and their title flowing therefrom apparent on the record, sustained the jurisdiction of the Circuit Court. Passing, with a mere mention of them, the cases of The Hope Insurance Company v. Boardman et al., 5 Cranch, 57; Hodgson and Thompson v. Bowerbank et al., 5 Cranch, 303; Skillern's Ex'rs, v. May's Ex'rs., 6 Cranch, 267; The Corporation of New Orleans v. Winter, 1 Wheat., 91, all full to the point; I will quote an emphatic and more comprehensive affirmation of Judge Washington in reference to the powers of the Circuit Courts, expressed in the opinion of that judge in McCormick and Sullivant, 10 Wheat., 199: 'They are all (says he) of limited jurisdiction. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may upon a writ of error or appeal be reversed for that cause.' But the fullest and clearest exposition and vindication of the doctrine contended for in this opinion, will be found in the reasoning of Chief Justice Marshall, in delivering the decision in the case of Osborn v. The Bank of the United States. The portion of the reasoning particularly referred to commences on the 856th page of the 9th volume of Wheaton: 'The judicial power of the Union,' says the chief justice, 'is also extended to controversies between citizens of different states; and it has been decided that the character of the parties must be shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest: but it has never been suspected that, if the executor be a resident of another state, the jurisdiction of the federal courts could be ousted by the fact that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in this case is, that the jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record. Why is this construction universal? No case can be imagined in which the existence of an interest out of the party on the record is more unequivocal than in that which has been stated. Why then is it universally admitted, that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is, because the jurisdiction of the court depends not upon this interest, but upon the actual party on the record.' Again he remarks, p. 857, 'It may, we think, be laid down as a rule which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the Constitution over suits against states, is of necessity limited to those suits in which a state is a party on the record.'
This reasoning of the late chief justice seems to meet the present case in every aspect of which it is susceptible, and to dispel every shade of doubt that could possibly be cast upon it. The doctrine this reasoning so well sustains, is reaffirmed by the same judge, in the still later case of The State of Georgia v. Juan Madrazo, 1 Pet., 122; and amongst other authorities there cited, the principles ruled as above mentioned in Osborne v. The Bank of the United States, are referred to and approved. Vide also Keary et al. v. The Farmers' and Mechanics' Bank of Memphis, 16 Pet., 90.
Alexander McNutt, in the case under examination, must be regarded as a private person acting in a private capacity; at most as a mere agent under a law of Mississippi, in whom the interests of other individuals may to a particular extent have been vested, and through whom they were authorized to sue. He represented or was identified with no political or fiscal rights or interests of the state of Mississippi. That state had no interest involved in the conducting of that suit by McNutt, and much less was she a party to the record in that suit. Standing then in the relation of a mere agent in the transaction, and there being no law of the United States investing the federal courts with jurisdiction as incident to such agency, he could have access to those courts, and the courts themselves could have jurisdiction, solely in virtue of his character of citizen of a state different from that in which the defendants resided, and that character it was indispensable should appear upon the record. These are positions which it has seemed to me impossible successfully to assail; positions encompassed with a chain of authorities comprehending the entire existence and duration of the government itself. This, however, is said to have been broken by the act of this court, and by that act an opening made for farther power and jurisdiction in the Circuit Courts. The mean by which such important consequences are supposed to have been effected, is the decision of the case of Brown at al. v. Strode, to be found in 5 Cranch, 303. In this case, which was submitted without argument, and in which the certificate directed to the Circuit Court is comprised in two lines, no reason whatever is assigned for the conclusion at which the court appear to have arrived The facts of the case, as presented in the short abstract of it, are thus stated: 'It was an action upon an executor's bond given in conformity with the laws of Virginia. The object of the suit was to recover a debt due from the testator in his lifetime to a British subject. The defendant was a citizen of Virginia. The persons named in the declaration as plaintiffs, were the justices of the peace for the county of Stafford, and were all citizens of Virginia.' The court ordered it to be certified as their opinion 'that the court below has jurisdiction in the case.' This is the whole case, and it is confidently believed to stand entirely solitary; without support, and without a likeness in the whole history of our jurisprudence: and, in commenting upon this case, it may be safely asserted, that if the court in their certificate have intended to affirm, that the holders of equitable interests, cestuis que trust, who are not the holders of the legal interests, or rights of action at law, are in actions at law the regular and proper parties to the record, then, indeed, they have not merely overturned the series of decisions in this court, from the case of Bingham v. Cabot, in 3 Dall., decided in 1798, down to the case of The Governor of Georgia v. Madrazo, 1 Pet., 110;-they have reversed, moreover, what is believed has been regarded as a canon of the law, wherever the principles of the common law have been adopted; and this they have accomplished by one short sentence, and without a single word to explain this mighty revolution. But can it be reasonably presumed that this court have in so cursory a mode intended to reverse its own well-considered, well-reasoned, and oft-repeated decisions; and this, too, without professing to review them-nay, without one word of reference to them of any kind? A presumption like this seems scarcely compatible with that cautious reluctance with which innovation on settled principles is always admitted by the courts. Is it not far more probable, that the short and isolated abstract in question, exhibits an imperfect picture of the action and purposes of the court as applicable to some particular state of case which may not be fully and accurately given, for the record of the case in the court below is not set out in extenso. But let it be supposed that the objects and the language of the court, in the case of Browne and Strode, are accurately given; still the inquiry recurs, does that case establish the law of this cause at the present day? Broune and Strode was decided in 1809. Turning, for the moment, from the decisions of this court prior to 1809, supposed (strong and explicit, and numerous as they are) to have been silently demolished by Broune and Strode, what must be understood with respect to the decisions of Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267; of Osborne v. The Bank of the United States, 9 Wheat., 733; of McCormick v. Sullivant, 10 Wheat., 199, and of The Governor of Georgia v. Madrazo, 1 Pet., 110-all posterior in date to 1809? If these cases are to be received upon the import solely of their own terms, uninfluenced by any reference to prior decisions, still as they are posterior in time to Browne and Strode, and are wholly irreconcilable therewith, they should be understood as controlling and reversing that decision. How much stronger, then, nay, how irresistible appears this conclusion, when it is ascertained that the several decisions subsequent to 1809 refer expressly to those of previous date, rely upon them as forming their own foundation, and reaffirm them as the law of the federal courts.
The only decision in this court which would appear, upon a superficial view of it, to give color to the decision of Broune et al. v. Strode, is the case of Irvine v. Lowry, reported in 14 Pet., 293. An attentive examination of the latter case, however, will show that, so far from resembling Browne and Strode, the facts of the two cases differ essentially; and that the former does not sustain, but, in effect, contradicts the latter. In Irvine v. Lowry the action was in the name of Irvine the payee of the note, for the benefit of the Lumberman's Bank. On behalf of Lowry the defendant, exception was taken to the jurisdiction upon the ground that the Lumberman's Bank, the beneficiaries in the suit, consisted, in part, of persons who were citizens of the same state to which the defendant belonged. The case of Browne et al. v. Strode was relied on to show that these beneficiaries and not the nominal parties or those who held the legal interest, should be considered the true parties on the record. This exception was overruled, and the jurisdiction sustained in the name of the party holding the legal right, in conformity with the current of authorities before cited. 'Tis true that, in the opinion delivered in this case, the decision in Browne et al. v. Strode is mentioned, and accounted for upon an hypothesis which by no means divests it of its anomalous character, any more than it rests the case of Irvine v. Lowry upon any real similitude with it. The argument is this, that although in Broune et al. v. Strode the plaintiffs and defendant were citizens of the same state, yet the statute of Virginia, which requires the executor's bond for the protection of creditors and legatees, passes the legal right to those whose interests the bond is designed to protect. To this reasoning several answers at once present themselves, either of which appears to be sufficient. 1. If this could be so understood, it would leave the objection precisely where it stood before. The parties to the action would still be all citizens to the same state, whereas the judicial act declares they shall be (that is the plaintiffs and defendants) of different states. 2. The Virginia statute professes to effect no such transmutation of legal rights. 3. It confers no right of action on the beneficiaries under the bond. 4. It orders the prosecution of the suit in the names of the justices the obligees, and by consequence, forbids such proceeding in the names of any other persons. 5. In point of fact, in the case commented on, (as doubtless would be found to be the fact in every suit ever instituted under the statute,) the action was brought in the names of the justices, so that those whose interests were designed to be protected by the bond, were never parties to the suit at all, much less the real or only parties representing the right of action under the bond.
My mind, then, is impelled, by considerations like these, to the deductions, that Browne v. Strode does not furnish the rule for the decision of this cause; and that, if it ever was a rule for the federal courts, it has been clearly and emphatically annulled. As a corollary from the above reasoning and the cases adduced in support thereof, it follows, that Alexander McNutt, without appearing as the party plaintiff upon the record to be a citizen of some state other than that to which the defendants belong, could have no standing in the Circuit Court; and that failing so to appear, the Circuit Court could have no jurisdiction over the cause.
It cannot be requisite here to meet any argument, should any be attempted, designed to maintain the right of McNutt to sue in virtue of his character of governor of Mississippi, and as such representing the sovereign or supreme executive power of that state. In that aspect, the suit would be virtually by the state herself, and not be the suit of Alexander McNutt; such a suit, too, could take place only where some direct right or interest of the state should be involved. Of such a controversy, the Circuit Court could unquestionably have no jurisdiction; this having been settled as one of those instances, the cognizance whereof belongs exclusively to the Supreme Court. See The State of Georgia v. Brailsford, 2 Dall., 402, and The Governor of Georgia v. Madrazo, 1 Pet., 110; Fowler et al. v. Lindsay et al., 3 Dall., 411.
To any argument, ab inconvenienti, which may be urged in support of the jurisdiction in this case, I would simply oppose the observations of two distinguished members of this bench, in reply to a similar argument addressed to them in the case of Turner, admin., &c. v. The Bank of North America, 4 Dall., 10; in which Chief Justice Ellsworth inquired: 'How far is it intended to carry this argument? Will it be affirmed that, in every case to which the judicial power of the United States extends, the federal courts may exercise jurisdiction without the intervention of the legislature to distribute and regulate the power?' And Chase, justice, remarked: 'If Congress has given the power to this court, we possess it, not otherwise; and if Congress has not given the power to this or any other court, it still remains at the legislative disposal.' Est boni judicis ampliare jurisdictionem was once quoted as a wise judicial maxim; how far this may accord with systems differently constituted from ours, and having their foundations in a large and almost undefinable discretion, it is, perhaps, unnecessary here to inquire; it seems, however, scarcely compatible with institutions under which the political and civil state is referred, almost exclusively, to legislative or express regulation.
Upon the views above given, I conclude that the judgment of the Circuit Court should be affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to that court, to enter judgment in this case for the plaintiff in that court.
The decree of the Circuit Court in this case was reversed on the 30th of January, 1844, and the cause remanded, with directions to enter judgment for the plaintiff. On the 31st of January, Jones, for the plaintiff in error, suggested the death of Bland, and moved that the writ of error stand against the survivor, Humphreys, and that judgment be entered against him alone.
Mr. Justice STORY, in delivering the opinion of the court said, that if Bland died since the commencement of the term, the judgment might be entered against both defendants, on a day prior to the death of Bland, nunc pro tunc. If he died before the commencement of the term, then upon the suggestion of his death before the term being entered of record, the cause of action surviving, the judgment might be entered against the surviving defendant, Humphreys. There certainly is no objection in this case, under all the circumstances, to granting the application as asked for by the plaintiff's counsel; that is, to enter the suggestion of Bland's death upon the record, and then entering judgment against Humphreys alone, as the survivor; and it is accordingly so ordered by the court.
Alexander McNutt, Gov., &c., plaintiff in error,
v.
Richard J. Bland et al.
Mr. Jones, of Counsel for the plaintiff in error, having suggested the death of Richard J. Bland, one of the co-defendants, since the last continuance of this cause, now here moved the court that his writ of error stand as against the surviving defendant. Whereupon this court not being now here sufficiently advised of and concerning what order to render in the premises, took time to consider.
January 31, 1844.
Alexander McNutt, Gov., &c., plaintiff in error,
v.
Richard J. Bland et al.
On consideration of the motion made in this case on a prior day of the present term of this court, to wit: on Wednesday, the 31st day of January, it is now here ordered by this court that the suggestion of Bland's death be entered on the record, and that then judgment be entered against Humphreys alone as the survivor, and that the mandate of this court direct the Circuit Court to enter judgment for the plaintiff against Benjamin G. Humphreys alone as the survivor.
March 12th, 1844.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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