The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-05-31
A State Sued by Her Own Citizens.


A State Sued by Her Own Citizens.
The following note from Mr.. ROYAL
satisfies us that there Is in Judge HudHEs's
decision 10 which we referred yesterday
nothing Whatever that can stand in the
Supreme Court OF the United States, unless
the act OF Congress OF 1875 can be made to
override the Constitution Of the United
States. We call the attention OF Mr..
TICKER 10 that act and TO the extraor-
binary decisions which Judge BoSD and
Judge HUGHES have based upon 1t. But
to Mr.. ROYALS note:
To the Editor Of the Dispatch
In your editorial this morning on Judge
Hughes's decision you entirely omit REFER
epce TO the provision OF the Constitution
on which Judge Hughes Pounds his deci-
sion. The Constitution provides, IN addi-
ton 10 the cases mentioned by you, that
the judicial power OF the United States
shall extend 10 all cases arising Under the
Consultation, and the Supreme Court has
repeatedly held that q case arises under
the Constitution whenever IL is necessary to
construe the Constitution in order to give
Judgment in the case.s The argument OF
Judge Hughes's opinion Is this: The SUI
preme Court decided in Chisholm Us.
Georgia that the States OF this Union were
as much liable TO be sued as individuals
werl. Thereupon the eleventh amend
ment was adopted, which forbids citizen
Of another State only 10 sue State. But
II does not forbid citizen OF Virginia TO
sue Virginia. II he can find court that
has Jurisdiction 10 entertain his suit. Now
the act OF Congress OF March, 1915. ex-
tends the jurisdiction OF the circuit
courts 10 al cases arising under the Con-
stitutiOn, whether the parties to the case
be adults, infants, married women. luna
ties, or States. Therefore. ~ the case 10 be
tried arises under the Constitution, the
Circuit Court has jurisdiction OF 1t never
mind who may be the defendant, whetner
a married woman or State. just now
this argument is to be answered, con-
fess that cannot perceive.
WILLIAM l.. royal.
Now. the very point we made yesterday,
and to which we now again call particular
attention, Ia that no such case as the one IN
which Judge HUGHES recently took iuris-
diction can arise under the Constitution OF
the United States. The judicial power OF
the United States unquestionably exterds
to all cases arising under the Constitution
and laws OF the United States. This Is the
language OF the Constitution itself. But
this language must be taken in connection
with other language OF the same Constitu-
ton. We showed vesterday-wh indeed
neither MIR. ROYAL nor any other lawyer
will deny-that before the eleventh amend
ment became part OF the Constitution
citizen OF Georgia might sue Virginia in
the Federal courts, but citizen OF Virginia
could not. Why not: The judicial power
OF the United States extended then as now
TO all cases arising under the Constitution
and laws Of the United States. Why, then,
could not either OF Virginia at that time
sue Virginia? Because, we repeat, no such
case could arise under the Constitution.
Its language negatived the idea. Let us
quote 1t again:
Article ILL.,. section ill.,. paragraph l:
"The judicial power [of the United States]
sbalIeXtend . - to controversies between
two or more States; between 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 clear implication is that though the
judicial power OF the United States eX-
tended to controversies " between State
and citizens OF another State" 1t did not
extend to controversies between q State
and her own citizens.
What has been done to change that state
OF things? Nothing whatever. The elev-
enth amendment must be read, as it was
meant TO be, simply as repeating act. 1t
provides as follows:
1.-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"
The Constitution bad provided that the
Judicial power Of the United States should
extend to controversies between State
and citizens OF another State. But the
people, not liking this feature Of the Con-
stitution, repealed it by adopting an
amendment declaring that the judicial
power OF the United States should NOT
extend to such cases. Read in this light,
the amendment cannot possibly have the
meaning that Judge HUGHES has attached
to ii.
So no such case as suit against q State
by one OF her own citizens can possibly
arise under the Constitution and laws OF the
United States.
Again II the Constitution provided in
terms that the judicial power Of the United
States should not extend TO controversies
between a State and her own citizens, Mr..
royal would admit that no such case
could possibly arise under the Constitution
OF the United States. Now, this is Just
what the Constitution does in effect. 1t
does by necessary implication deny the
rif bit OF citizen to sue his own State in
the Federal courts. Consequently such a
case cannot arise under the Constitution OF
the United States.
In word, case cannot arise under the
Constitution which that Constitution for
bids to arise. Otherwise every limiting
clause 10 the Constitution might be set
aside by simply alleging that the case arose
under the Constitution. The very point
nj issue Is whether such case can arise
under the Constitution. We say emphati-
cally, No. Mr. royal says, Yea. IL we
ask him why. he can only say, 1t arises I'M
der the Constitution because it arises I'M
der the Constitution. or because it Is al