The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-16
NORTH CAROL|NA'S
COUNSEL HOPEFUL
Ju4ge Shepherd Concludes
Argument for the State.
SITUATION SATISFACTORY
Court Asked Counsel Many Questions as to How
South Dakota Acquired the Bonds---Judge
Shepherds Powerful Speect---Mr.
Peckkam Concludes.
Peckkam Concludes.
Special to News and Observer)

Especial to News and Observer
Washington, D. c., April 15.-Judge
Shepherd resumed his argument this
morning. closing for North Carolina
Mr.. Peckham then concluded for South
Dakota. Mr.. Rountree and Judge Shep-
herd both made strong speeches contend
ing that the court had no jurisdiction of
a suit by one State against another on
it's bonds. During the argument the court
asked counsel many questions, eliciting
Information as to the manner in which
South Dakota acquired the bonds in suit,
the very questions the attorneys for
North Carolina wished to be asked. Their
answers showed clearly that the whole
proceeding is a fraud on jurisdiction.
The situation is quite satisfactory to
counsel for North Carolina, who are
hopeful of winning.
JUDGE SHEPHERDS ARGUMENT.
Some of the principal contentious in
Judge Shepherds argument were as fol-
lows:
mo controversy within the meaning of
the Constitution is presented in this suit
between the complainant and the defend
ant States. in which a decree can be
made and enforced against the defendant
State or it's property.
I'm an elaborate review of the cases in
which this court has assumed original
jurisdiction under the judicial clause of
the Constitution, the opinion in Missouri
V. Illinois ESQ u. S., 2OS), did not disclose
any in which such jurisdiction had been
entertained for the purpose of enforcing
the public obligations of one State in a
suit brought by another much less where
the complaining State was the voluntary
assignee OF parties who could not them
selves sue.
"A judgment is prayed for against the
State for the amount due and the sale by
foreclosure of property owned by and in
the actual possession of the State 0he
dividends from which constitute consid
cradle part of its necessary revenue)
and the application of the proceeds to the
entire mortgage indebtedness, all of
which is held by individuals, except the
ten bonds sued upon. In other words.
such property, now in the possession OF
the State, and such revenue therafrom,
is to be wrested fr-;n its possession and
internal regulations disturbed and to
great extent controlled by the judicial
power of this court.
I'VE do not consider that We are over
adventurous in saying that in the adop-
tion of this brief, general and indefinite
Jurisdictional clause. the granting of
such power to the Federal judiciary was
never for a moment contemplated and
that IL the trainers OF the Constitution
had considered that it conferred such q
power. so utterly at variance with tne
fundamental principles of the government
they were constructing, the clause would
have been instantly rejected. We saw
furthermore, that, had it been understood
that such power would be claimed. who
can doubt that the States, while permit
ting one State to sue another in certain
cases would have expressly excluded the
power here claimed at the time of tho
adoption OF the Eleventh Amendment?
THE proposition TO which we have re-
ferred, and upon which this suit is pred
icated, has never received the deliberate
consideration OF this court Indeed. We
may safely assert that it has never been
presented, and that this is the first time
such a grave and momentous question
In its solution the court will not, as it has
declared be governed by the mere lit
eral comprehension of the judicial clause
owls. V. Pelican Co, supra), but ii will
look into its Historical origin and upon
that. as well as the whole Constitution
and the character Of the government es-
tablished by it, determine whether Judi
cial power has been conferred in respect
TO the case before it
The controversies existing between tho
states were we'll known at the time of
the adoption of the Constitution. and al
'hough tribunal had existed under the
"i''cles OF the Confederation for their de
tVi Vihihatlon, only eight cases were
oush1 before it, and these involved
Soaey questions of boundary and the like.
"hie the language of the articles es
'"oiiShihS such tribunal, was even moro
.'iuprehenslve in its terms than the in
ulcial clause of the Constitution. If was
never suggested that it conferred iuris-
cctlon TO compel the payment of the
puohc obligations OF a State. If vaz
thoroughly understood and vo NOV, 90,
II is now so understood. that those rostoa
entirely upon moral sanction and tho
good faith of the States
This consensus of opinion docs no, ,vo
most respectfully submit. rest unon rho
mere narrow technical ground as tn who
may be parties to suits. as ii is weu set
tied that State may. in some eases be
sued by another State. The question is
one of far higher eminence. as it involves
the inquiry whether the several States
dicial department of the Federal govern