The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-02-02
THE COURT is DIVIDED
The Chief Justice and Justices White,
McKenna and Day Unite in a Dis
senting Opinion, Leaving Five Fa-
vorabIe to the Contentious of South
Dakota.
fspecial to News and observer.l


Especial to News and Observer
Washington, D. c., Feb. North Car
DINA has lost the South Dakota bond suit.
The United States Supreme Court handed
down it's decision today. The opinion is
written by Justice Brewer and concurred
in by Justices Peckham, Harlan, Brown
and Holmes.
A dissenting opinion is written by JUS
tice White and concurred in by Chief
Justice Fuller and Justices McKenna and
Day.
1t will be seen, therefore. that the court
was pretty equally divided. being TO 4.
The general belief is that Judge Brown,
who heard only the first argument (made
last November) gave the deciding vote.
OF course, this is only surmise, and Is
based largely on the fact that he was
unable to be on the bench when the case
was argued the second time.
Although the State loses the case, the
decision is in one respect victory for it.
The State of South Dakota is adjudged
entitled to recover $27, ,400-amount due
on ten bonds of 81 GOO each and the at
tached coupons-but the action as to the
individual holders of stock, who were rep
resented by Butler and Russell, is dis
missed. These latter represented some
seven hundred thousand dollars.
The decision of the court is based on
three leading cases: Chisholm VS.. Georgia,
which was an action of assumpsit; United.
States vs. North Carolina. which was an
action of debt. ara United States VS..
Michigan, which was a suit for an ac-
counting. In the Chisholm case it was
decided that citizen of one State might
maintain in the Supreme Court an action
against another State. In consequence of
that decision tie eleventh Amendment was
adopted granting to State immunity
from suits ty ar individual, but not, says
the decision today, affecting controversies
between two or more States.
The opinion IS rendered by Justice
Brewer, and the decree of the court war
embodied n the following order.
"A decree will, therefore, be entered,
which after finding the amount due on
the bonds and coupons III suit 10 be $27,-
COO, no interest being recoverable, and
that the same are Secured by one hundred
shares OF stock OF the North Carolina Rail
read Company, belonging to tae State of
North Carolina, and directs that the said
State of North Carolina pay SAID amount
20 the State OF South Dakota and that in
default of such payment an order OF sale
be issued to the marshal of this court,
directing him to sell al public auction all
the interest of the State OF North Caro-
lima in and to one hundred shares OF the
capital stock of the North Carolina Rail-
road Company, belonging To the State
of North Carolina, and directs that the
ssid State of North Carolina pay said
amount to the State of South Dakota
and that in defualt of sucn payment ali
order of sale be issued to the marshal
Of this court, directing him 10 sell at
public auction all the interest OF the
State of North Carolina in and to sne
hundred shares OF the capital stock of
the North Carolina Railroad Company
srch sale to be made at the easc front
ccor of the Capitol building in this city,
pubic nOIlce 90 De given OF SucI safe
by advertisements IL soi2a daily paper
published in the City OF Raleigh. n. c.,
and also in some daily paper published
III the City of Washington
The decision of the court is considered
an important one and it marks & new de-
paIture in ordering the sale OF property
in dispute in cases of failure 10 satisfy
n Judgment. Coming TO that point, ,Sls-
ticc Brewer said there was "no reason
able doubt of the validity of the bonds
an6 mortgages in controversy nor "ques-
ton respecting the title Of South Dakota
to the bonds.'' He also asserted the juris-
diction of the court in cases brought by
one State against another to enforce prop
erty rights. He added
we are confronted with the contention
that there is no power in this court to
enforce such a judgment, and that such
lack of power is conclusive evidence that,
notwithstanding the general language of
the Constitution there is an implied ex-
ception of actions brought to recover mon
ey The public property held by any
municipality, city, county or Stat. is ex-
empt from seizure upon execution be-