other public ministers, or in which a consul or vice-consul is a party. 19 20 § 64. Enforcement of judgments against a state. An interesting question in connection with suits in the Supreme Court against a state arises in respect to the power of the court to enforce its judgment against a state. In conferring upon the Supreme Court jurisdiction of such suits it would seem that the Constitution by implication confers also the necessary power to enforce the judgment. And if such power be not considered a necessary incident of jurisdiction, it would seem to be competent for Congress to confer the necessary power under its power to "make all laws which shall be necessary and proper for carrying into execution . . . all other powers vested by this Constitution in the government of the United States or any department or officer thereof." However, there has been no legislation on this point. Very few cases have arisen in which the question has been raised. Most of the cases against states have been suits by other states to determine the question of disputed boundaries. The jurisdiction of the court to enforce its decrees in such suits was expressly declared and exercised in an early case.21 In these suits the court appoints its own commissioners to fix and mark the adjudged boundary 22 and has ample power to protect such boundary and enforce the decree as against all persons. In boundary suits, however, the decree does not call for any action on the part of the states, and hence no question of compulsory process against the state can arise. In suits for an injunction, as, for example, in connection with rights in interstate streams, it would seem that there would be no difficulty in enforcing a decree for an 20-Rev. St., § 687, 4 Fed. St. Ann. 436; Judicial Code, § 233. 21-Rhode Island v. Massachusetts, 12 Pet. 657. 22-For a late case, see North Carolina v. Tennessee, 235 U. S. 1, 240 U. S. 652. injunction, for any attempt to violate the decree would necessarily be the act of individuals, either officers of the state or other persons, and they could, of course, be proceeded against for contempt.23 The case of judgments against a state for the payment of money by the state presents more difficulty.24 The first suit in a federal court against a state was of this kind, that is, the case of Chisholm v. Georgia, in which judgment by default was entered against the state of Georgia, but was never executed, the decision having led to the adoption of the Eleventh Amendment depriving the court of jurisdiction of such cases.25 In 1809 the power of the Supreme Court to maintain its authority was impressively asserted by Chief Justice Marshall in a suit in which the state of Pennsylvania, though not nominally a party, was in fact interested as defendant.26 Judgment having been rendered for the plaintiff, the governor of the state, under authority of an act of the Pennsylvania legislature passed for the occasion, called out the militia to resist process of execution. The federal marshal appointed a day for execution and summoned a posse of two thousand men. The governor then appealed to President Madison, who upheld the court, whereupon the state surrendered and appropriated money to pay the judgment. The militia officers were convicted of obstructing federal process, but the sentence was remitted by the President.27 No case has yet arisen in which the Supreme Court has 23-Examples of such suits are Missouri v. Illinois, 200 U. S. 496, and Kansas v. Colorado, 206 U. S. 46. In neither case, however, was the injunction granted, the bills being dismissed. 24-See United States v. North Carolina, 136 U. S. 211, and United States v. Michigan, 190 U. S. 379. In the former case the judgment was for the defendant, and the bill in the latter case was finally dismissed at the instance of the plaintiff (203 U. S. 601). 25-For an account of this case see ante, & 30. 26-United States v. Peters, 5 Cranch 115. 27-See Carson, History of the Supreme Court, 214. See, also, Worcester v. Georgia, 6 Pet. 515, and account of this case in Carson, 269. enforced a judgment for money in a direct proceeding against the defendant state. In the case of South Dakota v. North Carolina,28 decided in 1903, a decree was rendered in favor of the plaintiff on bonds of the defendant which were secured by a mortgage on property belonging to the defendant. The suit was to enforce this mortgage. In delivering the opinion of the court, Brewer, J., said: "But we are confronted with the contention [against the jurisdiction to render judgment] that there is no power in this court to enforce such a judgment, and such lack of power is conclusive evidence that, notwithstanding the general language of the Constitution, there is an implied exception of actions brought to recover money. The public property held by any municipality, city, county or state is exempt from seizure upon execution because it is held by such corporation, not as a part of its private assets, but as a trustee for public purposes. Meriwether v. Barrett, 102 U. S. 472, 515. As a rule no such municipality has any private property subject to be taken upon. execution. A levy of taxes is not within the scope of the judicial power except as it commands an inferior municipality to execute the power granted by the legislature. . . . We have, then, on the one hand the general language of the Constitution vesting jurisdiction in this court over 'controversies between two or more states,' the history of that jurisdictional clause in the convention, the cases of Chisholm v. Georgia, [2 Dall. 419], United States v. North Carolina, [136 U. S. 211], and United States v. Michigan, [190 U. S. 379], (in which this court sustained jurisdiction over actions to recover money from a state), the manifest trend of other decisions, the necessity of some way of ending controversies between states, and the fact that this claim for the payment of money is one justiciable in its nature; on the other hand, certain expressions of individual opinions of justices of 28-South Dakota v. North Carolina, 192 U. S. 286. this court, the difficulty of enforcing a judgment for money against a state by reason of its ordinary lack of private property subject to seizure upon execution, and the absolute inability of a court to compel a levy of taxes by the legislature. Notwithstanding the embarrassments which surround the question, it is directly presented and may have to be determined before the case is finally concluded, but for the present it is sufficient to state the question with its difficulties. There is in this case a mortgage of property, and a sale of that property may satisfy the plaintiff's claim. If that should be the result there would be no necessity for a personal judgment against the state." The court then entered a decree for the amount found due, and ordered that the state of North Carolina pay said amount to the defendant on or before a day named, and in default of such payment, directed the marshal of the Supreme Court to sell the property covered by the mortgage at public auction at the east front door of the Capitol Building at Washington, after due advertisement, etc.29 In the case of Virginia v. West Virginia,30 for the apportionment of the debt of the original state at the time of the division into two states, the bill was filed in 1906 and was demurred to for want of jurisdiction on various grounds. In overruling the demurrer the court, by Chief Justice Fuller, said: "But it is objected that this court has no jurisdiction because the matters set forth in the bill do not constitute such a controversy or such controversies as can be heard and determined in this court, and because the court has no power to enforce and therefore none to render any final judgment or decree herein. We think these objections are disposed of by many decisions of this court. 29-On the day before that fixed for the sale the attorney general of North Carolina, acting for the state, paid the amount due. 30-206 U. S. 290, 319. [It] is not to be presumed on demurrer that West Virginia would refuse to carry out the decree of this court. If such repudiation should be absolutely asserted, we can then consider by what means the decree may be enforced. Consent to be sued was given when West Virginia was admitted into the Union, and it must be assumed that the legislature of West Virginia would in the natural course make provision for the satisfaction of any decree that may be rendered." In 1915 the court entered a decree in favor of Virginia for $12,393,929.50, with interest at the rate of five per centum per annum until paid.31 In 1916 Virginia petitioned for a writ of execution against West Virginia, but the petition was denied on the ground that as the legislature of West Virginia had not met since the decree no opportunity had been offered to the defendant to provide for payment.32 § 65. Appellate jurisdiction-In general. The Supreme Court derives its importance chiefly from its appellate jurisdiction. The Constitution provides (continuing last quoted section) that, "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." 33 By this provision the appellate jurisdiction of the Supreme Court is placed wholly under the control of Congress, and the Supreme Court can exercise no appellate jurisdiction except in the cases, and in the manner and form defined and prescribed by Congress.34 Congress may even take away the jurisdiction of the court in a pending cause, and thus prevent a decision therein. A notable instance of the exercise of this power is found in the action of Congress in connection with the 31-238 U. S. 202. 32-36 Sup. Ct. Rep. 719. 33-Art. III, § 2. 34-American Construction Co. v. Jacksonville, etc., R. Co., 148 U. S. 372. |