62

58

59

the Secretary of War, the Secretary of the Interior, a commissioner of immigration," a collector of a port,1 a collector of internal revenue, and a postmaster." That such suits may be treated as suits against the United States where the government consents to be sued seems a natural inference from Stafford v. Wallace which takes advantage of the provision in the Packers and Stockyards Act providing the same procedure for suits against the Secretary of Agriculture as is provided for suits against the Interstate Commerce Commission.

I. Suits Against a State.

With the exception of suits by one state against another, it is settled that a state is immune from suit in the United States except by its consent. It was early established that a writ of error to a state court to review a judgment in an action brought by a state is not a suit against the state. Ilustrations of this exercise of federal jurisdiction abound in each term of the Supreme Court. Each year we have also actions brought in federal courts against state offi

58 French v. Weeks, 259 U. S. -, 42 Sup. Ct. 505 (1922), 21 MICH. L. REV. 77, note 38; Creery v. Weeks, 259 U. S. —, 42 Sup. Ct. 509 (1922), 21 MICH. L. REV. 77.

59 Southern Pacific R. R. Co. v. Fall, 257 U. S. 460, 42 Sup. Ct. 147 (1922); Santa Fe Pacific R. R. Co. v. Payne, 259 U. S. —, 42 Sup. Ct. 466 (1922).

60 Ng Fung Ho. v. White, 259 U. S. —, 42 Sup. Ct. 492 (1922), 21 MICH. L. REV. 72.

61 International Ry. Co. v. Davidson, 257 U. S. 506, 42 Sup. Ct. 179 (1922), 21 MICH. L. REV. 298.

62 Lipke v. Lederer, 259 U. S. 42 Sup. Ct. 549 (1922), 21 MICH. L. REV. 68, 292, 299; Corneli v. Moore, 257 U. S. 491, 42 Sup. Ct. 176 (1922), 21 MICH. L. REV. 66; Smietanka v. First Trust & Savings Bank, 257 U. S. 602, 42 Sup. Ct. 223 (1922), 21 MICH. L. REV. 295, note 58; Greiner v. Lewellyn, 258 U. S. -, 42 Sup. Ct. 324 (1922), 21 MICH. L. REV. 297. See also the case in 21 MICH. L. REV. 297, note 62.

63 Leach v. Carlile, 258 U. S. REV. 71.

42 Sup. Ct. 227 (1922), 21 MICH. L.

64 259 U. S., 42 Sup. Ct. 397 (1922), 21 MICH. L. REV. 182.

65 For controversies between states during the 1921 term of court see sub-section E, supra.

66 Instances during the past term are Gillespie v. Oklahoma, 257 U. S. 501, 42 Sup. Ct. 171 (1922); Hawes v. Georgia, 258 U. S., 42 Sup. Ct. 204 (1922); Howat v. Kansas, 258 U. S. 181, 42 Sup. Ct. 277 (1922); Oklahoma Gas Co. v. Oklahoma, 258 U. S. 234, 42 Sup. Ct. 287 (1922); Vigliotti v. Pennsylvania, 258 U. S., 42 Sup. Ct. 330.

68

cers without complaint that the suit is in effect one against the state. Among those of the past term are actions against a secretary of state, an attorney general, a commissioner of agriculture," a board of supervisors,70 and a judge and the master of a house of correction."1

J. Original Jurisdiction of the Supreme Court.

The Constitution provides that in cases in which a state shall be a party, the Supreme Court shall have original jurisdiction; but this, it is now established, relates only to the mode of initiating a case or controversy to which the federal judicial power extends. On general principles it does not extend to suits against the United States except when the United States consents. This principle was applied in North Dakota v. Chicago & N. W. Ry. Co.2 to dismiss a bill brought in the Supreme Court by a state against a railroad to enjoin it from complying with an order of the Interstate Commerce Commission raising intrastate rates under power conferred by the Transportation Act of 1920. The ground of decision was that Congress had provided that in suits to set aside an order of the Commission the United States must be made a party and that the United States has consented to be sued only in the District Court. The argument of the state that the provision for making the United States a party was a mere matter of procedure was rejected. The further contention that Congress is without power to forbid the state to start its proceeding in the Supreme Court was rejected as to the case in question by resort to the discretion enjoyed by courts in entertaining jurisdiction of equitable proceedings. In the words of Mr. Justice Holmes:

"The main contention of the state is that if in the opinion of this court it has a substantial right that is infringed by what the defendants are doing Congress neither can take that right away nor prevent the state from proceeding in this court for such remedy as law

67 Terral v. Burke Construction Co., 257 U. S. 529, 42 Sup. Ct. 188 (1922); Hump Hairpin Co. v. Emmerson, 258 U. S. 290, 42 Sup. Ct. 305 (1922).

68 Lemke v. Farmers' Grain Co., 258 U. S. - 42 Sup. Ct. 244 (1922); Newton v. Consolidated Gas Co., 258 U. S. 165, 42 Sup. Ct. 264 (1922). 69 Texas Co. v. Brown, 258 U. S. 42 Sup. Ct. 375 (1922). 70 Irwin v. Wright, 258 U. S. 219, 42 Sup. Ct. 293 (1922).

71 Ponzi v. Fessenden, 258 U. S. 254, 42 Sup. Ct. 309 (1922). In 8 VA. L. REV. 293 is a note on the construction of the Eleventh Amendment.

or equity may afford. But if these premises were granted, it would not follow that the bill should be maintained. It is a proceeding in equity in which the requirements of complete justice and of public policy must be taken into account. When they are considered it seems to us pretty clear that the state should be remitted to the remedy offered by the statutes-a suit in the district court in which the United States is made a party. Complete justice requires that the railroads should not be subjected to the risk of two irreconcilable demands-that of the Interstate Commerce Commission enforced by a decree on the one side and that of this court on the other. The decision in this case although an authority would not be res judicata, and the Commission would not be concluded from rearguing the whole matter. As to public policy, Congress has indicated the policy of the United States."

This was followed in Texas v. Interstate Commerce Commission which, in adition to the fact that the United States was a necessary party and had limited its consent to be sued to suits in the district court, adduced the further consideration that the carriers and their employees were intimately concerned with the orders of the Railroad Labor Board which they had carried out and which the state sought to have cancelled, so that "to take up and solve the controversy without their presence and without their being represented would he quite inadmissible, considering the exceptional nature of our original jurisdiction." To this Mr. Justice Van Devanter added that "if their citizenship be such that they cannot be brought into the suit consistently with the limitations on our original jurisdiction, this does not justify us in proceeding in their absence."

Original proceedings in suits between states were entertained in Georgia v. North Carolina" and in Oklahoma v. Texas 75 which involved boundary disputes, and in Wyoming v. Colorado which involved a controversy over the powers of the two states with regard to an interstate river."

78 258 U. S. 158, 42 Sup. Ct. 261 (1922), notes 2 and 48, supra.

74 257 U. S. 516, 42 Sup. Ct. 173 (1922), note 45, supra.

75 259 U. S.

76 259 U. S.

42 Sup. Ct. 552 (1922), note 47, supra.

77 For articles having some bearing on various aspects of the judicial interpretation and application of constitutional provisions, see Anonymous, "Marbury v. Madison," 26 DICKINSON L. REV. 53; Anonymous, "The Preamble and Declaration of Rights of the Pennsylvania Constitution," 26 DICK

2. Requisites of Jurisdiction over Defendant.

In a proceeding brought by the holder of certificates of deposit against the bank which issued them, the bank relied for defense on a prior judgment that the plaintiff was not entitled to payment of the certificates, and the issue in Bank of Jaspar v. First National Bank of Rome's was whether in the proceeding in which this prior judgment was rendered there was jurisdiction over the certificate holder. It had appeared specially to object to the jurisdiction and had appealed from an adverse ruling. The Supreme Court recognized that the state law might validly provide that such an appeal would amount to a general appearance so as to authorize a personal judgment, but found that it did not do so. The other contention in the INSON L. REV. 29; James D. Barnett, "Judicial Review of Exceptions from the Referendum," 10 CALIF. L. REV. 371; Arthur Lyon Cross, "Judges in the British Cabinet and the Struggle Which Led to their Exclusion after 1806," 20 MICH. L. REV. 24; Robert Eugene Cushman, "The Social and Economic Interpretation of the Fourteenth Amendment," 20 MICH. L. REV. 737; Henry P. Dart, "Edward Douglass White," 3 LOYOLA L. J. 1; Walter F. Dodd, "The Judicial Function in Construing a Written Constitution," 4 ILL. L. Q. 219; Ludwik Ehrlich, "Comparative Public Law and the Fundamentals of its Study," 21 COLUM. L. REV. 623; J. Hugo Grimm, "The Article on Judiciary in the Constitution of Missouri," 7 ST. LOUIS L. REV. 145; Charles Grove Haines, "General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges," 17 ILL. L. REV. 96; Urban A. Lavery, "Status of the Illinois Constitutional Convention," 16 ILL. L. REV. 196; Leon P. Lewis, "Constitutional Problems of Kentucky," 10 KENTUCKY L. J. 53; David Hunter Miller, "Some Early Cases in the Supreme Court of the United States," 8 Va. L. Rev. 108; Cuthbert W. Pound, "Some Recent Phases of the Evolution of Case Law," 31 Yale L. J. 361; William Renwick Riddell, "Judges in the Executive Council of Upper Canada," 20 MICH. L. REV. 716; Gordon E. Sherman, "Swiss Constitutional Progress." 1 BOSTON L. REV. 249; Joseph Whitla Stinson, "Opinions of Richard Peters," 70 U. PA. L. Rev. 185.

Here as well as anywhere may be listed notes in 35 HARV. L. REV. 593. 615, on whether acquiescence will validate a state constitutional amendment not validly adopted; in 20 MICH. L. REV. 100 on the amendments to the Massachusetts constitution as a mere rearrangement and not a new constitution; in 6 MINN. L. REV. 158 on the recall of decisions on constitutional questions; in 6 MINN. L. REV. 582 on the state of procedure at which constitutional rights must be asserted; in 8 VA. L. REV. 121 on judicial review of legislative declaration that a statute is not subject to referendum; and in I WIS. L. REV. 500 on estoppel against questioning the constitutionality of a

statute.

case was that the proceeds of the discounting of notes from which arose the obligation behind the certificates of deposit constituted a res within the jurisdiction which authorized a judgment in rem that this res was impressed with a trust. This was rejected by the court on the view that the certificates were negotiable promissory notes physically without the jurisdiction, payable only upon surrender of the instruments properly endorsed. The holding was that as neither the certificates nor their owner were within the jurisdiction, the decree purporting to determine the liability between maker and holder was void for want of jurisdiction and so did not serve as a bar to a later action by the holder against the maker.

80

The question of jurisdiction over a foreign corporation by service of process on an agent within the state duly appointed for that purpose in conformity with the state statute arose in Mitchell Furniture Co. v. Selden Breck Construction Co., but a decision on the constitutional issue was rendered unnecessary by construing the state statute not to confer jurisdiction in causes of action arising in other states, there being no state decision giving a contrary construction. It was recognized that if the corporation were still doing business in the state at the time of such service of process, it would run the risk of a contrary construction of the statute by the state court."1

An effort to get jurisdiction in rem by reason of the presence within the state of promissory notes which were the subject matter of dispute failed in Crichton v. Wingfields through the interpretation put upon the federal statute allowing service by publication on

79 Questions of jurisdiction, constitutional or statutory, are considered in Charles Kellogg Burdick, "Service as a Requirement of Due Process in Actions in Personam," 20 MICH. L. REV. 422; Robert Tucker, "Venue in Divorce Cases," 1 OREGON L. REV. 93; Sam Bass Warner, "Venue of Civil Causes in Oregon," 1 OREGON L. REV. 142; Edgar V. Werner, "Service by Publication, an Ex Parte Proceeding," 6 MARQUETTE L. REV. 97; and notes in 22 COLUM. L. REV. 152 on service by publication on non-resident defendants in actions in rem; in 6 MINN. L. REV. 410 on absence of jurisdiction over person brought into the state by rendition proceedings; in 6 MINN. L. REV. 605 on immunity of a member of the legislature from service of judicial process; in 31 YALE L. J. 425 on service by publication in a suit involving an assignment of an insurance policy.

80 257 U. S. 213, 42 Sup. Ct. 84 (1921). See 22 COLUM. L. REV. 369.

81 Problems of jurisdiction over foreign corporations are considered in notes in 22 COLUM. L. REV. 87, 598; 35 HARV. L. REV. 87; and 31 YALE L. J. 205, 336. 6 MINN. L. REV. 309, 325.

82 258 U. S. -, 42 Sup. Ct. 229 (1922).