The record-union., 1894-02-24
RIGHTS OF FOREIGN CONSULS.
They Are Under the Jurisdiction of the
State Courts.
At Least so Far as Business Affairs
Are Concerned-So Rules Su-
perior Judge CatIIn.


plaintiff, and P. J. Van Loben Sells and
others are defendants. The action was
one to determine the validity of an as
sessment levied for reclamation purposes.
Van Loben Sells, being Consul for the
Netherlands. objected to the proceeding
in his case. on the ground that the State
Courts had no jurisdiction of himself or
property.
On yesterday afternoon, after dispos-
ing Of the cases on his law calendar,
Judge Catlin rendered his decision on the
point at issue, in which he holds that the
defendants plea is untenable.
RECITAL OF THE FACTS.
This, says the court, is an action in
stituted under Section 34934 of the
Political Code, to procure the decree
of this court determining the validity or
invalidity of a certain assessment made
upon the lands of the reclamation dis
trict, in pursuance, it is alleged, OF the
provisions Of the Political Code in rela-
ton to the reclamation of swamp lands.
Van Loben Sells is one of the defendants.
and an owner of about $500 acres in the
district. He is the Consul of the King
dom of the Netherlands at the port of
San Francisco, and by his answer inter-
poses plea of abatement that he is such
Consul, and that this court is without
jurisdiction to proceed in the action
against him or his said lands.
The evidence shows that while he is,
and has been such Consul ever since 1892,
administering the duties Of the office, he
is, and during the same time, has been
engaged in the commerce and business
Of farming the lands mentioned, work.
ing a small portion directly, renting
some of it for money rent, but greater
part for share of the crops, which crops
10 2 ~ OF ,Ffn +Ho
custom of other agricultural producers.
AS TO CONSULAR PRIVILEGES.
The effect of his plea of his consular
privilege is the sole matter for considera-
ton.
The case of Beers VS.. Preston Q11
Z. s., 252) was an action in a United
States Circuit Court against a Consul
to recover damages for the unlawful
conversion of merchandise, resulting
in q verdict against the Consul. He
did not plead against the jurisdiction;
but in the Supreme Court, on writ OF
error to the Circuit Court. made the OBJ
lection that the jurisdiction was in the
United States District Court and not In
the Circuit Court. 1t was claimed by the
defendant, in error, that the Circuit Court
had jurisdiction by reason of the alien
age of the Consul, which, although it did
not directly appear in the record, must be
presumed from the TACT that he was the
T0DroS6QIaLlF6 OF q 1OrSlRl NON6TI1lu0uts
The court held first THAT the eXemp-
ton of the Consul of a foreign Govern
ment from suit in particular courts Is the
privilege, not of the person who happens
to fill that office, but of the State Cor ov-
ernment he represents" therefore the
privilege was not waived by failure to
plead il in the court below. Upon the
Question of Jurisdiction upon the ground
Of alienage, the court said 1t did not ap-
pear from an inspection of the record
that Beers, the plaintiff in error, was an
alien, and it would not presume he was
from the mere fact that he held the office
of Consul.
Aside from the preliminary objection
in regard to the waiver Of the privilege
this was the only question in the case.
In conclusion the court said: "Our
conclusion is that, as it does not appear
from the record that the defendant is an
alien, and since it is consistent with the
record that the defendant is and was a
citizen of the same State with the plaintiff,
the record as it now is does not present
case which the Circuit Court had au-
thority to determine. Without, there
fore, considering the merits OF this cause,
the Judgment must be reversed and the
cause remanded for such further proceed
ings as may be consistent with this opin-
ion."
The case of Miller VS.. Van Loben Sells
(66 Cal, 34l) was an action in a State
court to recover money for goods sold and
delivered. The defendant was Consul of
the Republic of Paraguay. He did not
plead his consular privilege, and judg-
ment went against him. ON appeal he
interposed the plea and the court held it
good, and that the privilege was not
waived by the failure to plead it in the
court below, citing Davis VS.. Packard
e Peters, 2S4) and Beers VS.. Preston,
above referred to.
CASES NOT APPTTCA ARTF
II is claimed that this case is decisive of
the one at bar. l do not think il is for the
following reasons:
First-The only question brought to
the attention of the court in that case
MILLER VS.. Van Loben Sels), namely, the
question of waiver of the privilege in the
court below, and the only one discussed,
is not in this case.
Second-The provision of the Federal
Constitution, Section 2, Article Ill, that
the judicial power of the United States
shall extend ito all cases affecting En-
bassadors, other public Ministers and
Consuls,'' is held by the weight Of au-
thority not to imply that such jurisdic-
ton, though original, is exclusive. 1t
was therefore competent for Congress, by
the Judiciary Act of September 24, 1879,
to give to the United States District
Courts jurisdiction exclusively of the
courts of the several States of all suits
against Consuls or VIce-Consuls. Il L.
S. Stat. ~
The United States Revenue Statutes,
enacted by Congress in June, 1874, by
Section 6S7, gives the Supreme Court IN
terms original but not exclusive juris-
diction of all suits in which
Consul or Vice-Consul is party"
Bv the seventeenth paragraph of Sec
lion 563 exclusive jurisdiction is given to
the District Courts ''of all suits against
Consuls or Vice-Consuls," except for
certain ofenses.
Section I'll provides that ''the jurisdic-
ton vested in the courts of the United
States in the cases and proceedings herein
after mentioned shall be exclusive of the
courts of the several States." The eighth
parag raph of the section specifies "all
suits or proceedings against Embasadors
or other public Minister'S or their domes-
sites. or domestic servants, or against
Consuls, or Vice-Consuls."
On the Sth of February, 1875, Congress
repealed the eight paragraph of Section
iii. above quoted. as y. S. Stat. 31S)
In Beers VS.. Preston the court Incl
dentally referred to this repeal, and OBJ
served ''that by existing laws there is no
statutory provision which, in terms,
makes the Jurisdiction OF the court of the
United States exclusive Of the State
courts in suits against Consuls or Vice
Consuls."
Inasmuch as neither the Constitution
nor the laws Of Congress vest exclusive
jurisdiction in such cases in the Federal