New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-07-24
...--.- tCsmmunicated-I
DOES PRESCRIPTION RUN AGAINST
THE STATE.

1t appears that James Graham, Esq, State
Auditor, as custodian of State securities,
has in his possession number of prOmissory
notes, given by different parties, which are
more than five years old; and are, by the
general laws of the State, prescribed on
their face. The Auditor recently informed
his attorneys, Messrs. Horror & Benedict,
OF the facts, and requested their legal
opinion as to whether these notes were pre-
scribed, being debts due the State. The
attorneys responded in a communication,
which was published in your paper of j late
date, giving it as their opinion that pre-
scriptiOn does not run against the State,
assigning as reason, or the reason there
for, that 'the State is sovereign; that 1t
acts for the people, and that the great public
policy is to preserve the public rights, rev.
enues and property from injury and loss, by
the lashes Or negligence of public officers
Numerous authorities are cited by the
counsel in support of this view, from differ
ent States of the Union, as well as the
United States, but it is a somewhat singular
and striking fact that the cOunse! have been
unable to cite a single authority from the
long current of decisions Of our own courts
running through period of over sixty years
in support of this view. The cases they do
cite from our courts, show strong leaning
the other way, and the counsel might, had
they examined our late decisions with more
care, have found other cases affirming the
doctrine so strongly limited at by Judge
A. %,I f,n,, tt,n ,,,y,tl
Annual, page l4l. In the case Of Smith VS..
| Stewart, 81 Annual, page g., it was held by
| the present Supreme Court that prescription
| runs against all persons, unless included in
some exception established by law. It
| would seem to be clear enough that. unless
| an exception was established by law in
| favor of the State, that the general provi-
sion of the code declaring all written obi
CATION to pay money. whether negotiable or
not, prescribed by five years, would apply
| to the State as well as an individual; unless
| an exception is shown.
The theory on which the counsel of the
Auditor claims for the State immunity from
| the laws of prescription is, that she is a
| sovereign and acts for the public good.
| The correctness of the doctrine that the
State is sovereign. is not apparent nor adj
mitted nor can the State invoke that high
behest when she enters the forum of her
| courts to enforce demand against citizen.
| In such case it has been settled by numer-
| ous decisions of our courts, that the citizen
| could plead all the exceptions and means OF
defense that he could against any other
| suffer. This doctrine was probably lald
down in the case Of the State vs. State
Bank, Bailey intervenor. Illsley, Judge;
30 An. page 46S.
In the case of Buckner VS.. Masters, Tax
Collector, lately decided and not yet pub
Iished. it was held that the lien and priv
lege given by law on the lands in favor of
the State and parish. for the taxes expires
in two wears from date of assessment. 1t
is true this decision was made on a positive
enactment OF the Legislature, which de-
clares that the lien shall expire after two
| years, but the prescription Is against the
State nevertheless. That prescription can
| not be pleaded by the citizen against the
sovereign is quite clear and well established,
but that a State Of the Union can claim or
maintain that attitude is not so well estab-
| lished. II the doctrine is correct that
citizen may plead all the detenses against
the State that he could against any other
sutton what is in the way of his urging the
plea of prescription against note he has
given the State for property which he has
| purchased! What sort of figure would
the State cut if, in answer to such plea,
she were to set up her sovereignty
and claim immunity from the plea on that
| ground! To push the argument TO its final
consequences, suppose that the considera-
ton of the notes given were for slaves
owned by the State, and the maker of the
note was to plead in bar of its payment
emancipation by the United States, could
the State invoke her own sovereignty, in
opposition to this plea! If she could not
| it is difficult to see how she could, as
against the plea of prescription. There be-
ing no exception established by law in favor
| of the State, it would seem that she is in
tended TO be, and must be. held to the same
| vigilance in the enforcement of her claims
that other citizens are. The fact that the
Attorney General comedies with the other
counsel in this matter. confers no additional
authority in favor Of the correctness OF the
| doctrine. Len.