The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-05-11
people of the rich and prosperous city nave
| Just indorsed by an immense majority.
THE STATE In COURT.

/ THE BTATE In UUUhls
| The renort Of the Committee on Ltmita-
/ t,one recommends the adoption Of the follow
ing AZ one OF the articles Of the projected con-
stitution.
Apr 10 The State of Louisiana shall never
| be made defendant In any court Federal or
STATE.
1t must occur to any constitutional lawyer
that such an unqualified declaration as this Ia
manifest absurdity. The Convention cannot
possibly have any power whatever to define
Or clrcumscribe the judicial power of the gem
eral government or TO declare that this State
shall not remain amenable TO the jurisdiction
plainly conferred upon the courts OF the
Union by the Federal constitution. The juris-
dlction OF these courts Is conferred and de-
fined In that instrument and to 1t those
courts will look for their authority. The SEQ
ond section of article 8, and the eleventh
amendment, contain the entire delegation of
the Federal judicial power, and they name,
at least, one insti nee where State may be
made defendant III suit In the face of this
plain delegation, |, isSfolly for the Convention
10 incorporate so unqualified declaration In
the constitution tho State. The Federal
courts, In passing upon their juris-
diction. would 3os pay the slightest
attention to II. and the only.etfeet III Ii would
be to take from the Legislature the power Of
allowing individuals the privilege Of suing
the State. For all purposes of resisting the
encroachments Of tEs Federal courts. the ar
ticle would be a mei,s dead letter. Upon the
question Of their jurisdiction. those courts
will always look to She Federal constitution,
the sole source Of their power
The encroachments of the Federal judiciary
must be met. but In nm entirely different way.
Az every lawyer knows, In every case wherein
the Jurisdiction OF the Federal courts has been
pushed To the extreme II has been to enforce
immunlties and privileges voluntarily granted
by the State under the conditions OF the CON
tract. In such cases II has invariably been
held that State cannot be made party de-
PENDANT at the suit Of an Individual The most
extreme view ever taken by the Supreme
Court Ia that officers Of O State may be en-
joined from executing law In plain violation
81 the constitution or the laws OF the United
States. No provision that can be inserted Ia
the State constitution can prevent
D. legislature from passing laws
violative OF the Federal constitution,
which will be more binding than the provis-
ions OF that instrument itself. III such laws
are passed they are not binding. and II they
are not the Federal courts have the right to
DO declare III suits properly brought before
them.
In the other class OF cases the remedy Is to
take from the Legislature, by proper llmita-
tions Of Its power, all right or power to cre-
ate obligations on the part of the State, which
shall submit the State to the jurisdiction OF
the Federal courts under that provision Of
the Federal constitution which forbids
a State to pass q claw impairing
the obligation Of contracts" The constltu-
tions Of Georgia and Pennsylvania may well
serve us as models In this respect. These
instruments declare the right of taxation to
be sovereign and inalisnable right, and de-
prive the legislatures Of all authority to "irre-
uocGbly give, grant, limit or restrain" Ii; and
all laws, grants, contracts, and all other
acts whatsoever to this effect are declared
absolutely null and void. They also declare
that the exercise Of tho police power
shall never be abridged. They fur
thermore declare that no laws shall be
passed making nr0ocdbte grants Of special
privileges or inmunities." Il Is by such pro-
visions as this that 1t Is proposed to retain to
the State the control Of her own corpora
lions and Internal affairs, and exclude the in
PREVENTION between them and herself Of the
Federal courts. This is the only practical
manner In which the object aimed at In the
article recommended by the Committee On
Limitations can be realized.
In many particulars the report OF the Com
mittee on Limitations is made To conform to
the provisions Of these constitutions; but In
one instance. at least, 1t has gone to an ex-
treme that was never dreamed OF by the law
givers OF those States. We're this report
adopted, such thing as a corporation would
be forbidden to exist In tho State OF Louisiana.
This Ia certainly not desirable In great
commercial community like this.
Article OF this report provides that tho
Legislature shall not pass any focal or spe-
clal" laws creating corporations or "grant-
ing to Iany corporation association or indi-
vidual any special or exclusive right priv
lege or immunity" This Is all right and
proper, and 1t serves the two-fold purpose OF
forbidding monopoles andFequlring all such
institutions to be Incorporated under gen.
eral law. 1t even proposes to incorporate all
municipalities, except New Orleans, by gem
eral law. This we do not believe can be done,
since In such political corporations there are
always delegations Of sovereign powers, Of
taxation, police, etc, which should be special
So far MS 1t affects private corporations, how
ever, there can be no objection to 1t.
But how are these private institutions to be
lntorporated2 Article II of this report reads as
follows:
ART. H. That no cr post fncto law, nor law
fmpairtng the obligations Of contracts. or retro
speotve ~ IT, operation Or making dnV grant
of special privileges or immnntties, can be
passed by the General Assembly. etc.
or course this provision treats OF general
laws monopoly cannot DO created by
general law, 50 that this provision against the
making of "anp grant OF special privileges or
immunities" does not apply to such institu-
tions, but to ordinary corporations. To take