The decision of the Supreme Court of North Carolina, made in an
action to recover on bonds issued by the state in 1868, that the
Constitution of 1868 (in force when the bonds were issued), giving
the Supreme Court of the state jurisdiction to hear claims against
the state, but providing that its decision should be merely
recommendatory, to be reported to the legislature for its action,
had been repealed by an amendment to the constitution made in 1879
which forbade the general assembly to assume or provide for the
payment of debts incurred by authority of the convention of 1868,
or by the legislature that year or in two sessions thereafter
unless ratified by the people at an election held for that purpose,
and that the court was without jurisdiction to render judgment of
recommendation on a claim against the state whose validity was thus
denied by the state constitution, did not in any way impair the
obligation of contracts entered into by the state when the
Constitution of 1868 was in force.
The case is stated in the opinion.
Page 161 U. S. 241
MR. JUSTICE WHITE delivered the opinion of the Court.
By an ordinance of the Constitutional Convention of the State of
North Carolina held in 1868, certain bonds were authorized to be
issued in aid of the Chatham Railroad. While there was some
question raised on the subject in the discussion at bar, it may be,
for the purposes of this case, conceded that at the time the
ordinance authorizing the bonds was passed, section 11 article 4,
of the Constitution of North Carolina, adopted in 1868, was in
existence, and was as follows:
"
Claims against the State. -- The supreme court shall
have original jurisdiction to hear claims against the state, but
its decision shall be merely recommendatory. No process in the
nature of execution shall issue thereon; they shall be reported to
the next session of the General Assembly for its action."
In 1879, an amendment to the Constitution of North Carolina was
submitted by the legislature of that state to the people thereof,
and this amendment was ratified by a popular vote in 1880. It is as
follows:
"Nor shall the General Assembly assume or pay or authorize the
collection of any tax to pay, either directly or indirectly,
expressed or implied, any debt or bond incurred or issued by
authority of the convention of the year 1868, nor any debt or bond
incurred or issued by the legislature of the year 1868, either at
the special session of the year 1868 or at its regular sessions of
the years 1868-'69 and 1869-'70, except the bonds issued to fund
the interest on the old debts of the state, unless the proposing to
pay the same shall have first been submitted to the people and by
them ratified by the vote of a majority of all the qualified voters
of the state at a regular election held for that purpose."
After the incorporation of this amendment in the constitution of
the state, the plaintiff in error commenced in the Supreme Court of
North Carolina an action against that state for the recovery of the
amount of interest due on coupons forming part of certain bonds
which had been issued under the ordinance of the Constitutional
Convention of 1868,
Page 161 U. S. 242
above referred to. The Attorney General of the state, reserving
all its rights to plead to the jurisdiction, answered, denying both
the existence and validity of the bonds and coupons declared on and
pleading the statute of limitations of three and ten years.
Thereupon a motion was made by the Attorney General on behalf of
the state to dismiss the action for want of jurisdiction. This
motion prevailed, the court referring, as its grounds for
dismissing the suit, to the reasons assigned by it in the previous
cases of
Horne v. State, 84 N.C. 462, and
Baltzer v.
State, 104 N.C. 265. The cases thus referred to held that the
power of the court to recommend claims to the favorable
consideration of the legislature had (
quoad claims
identical in legal nature with the coupons sued on) been repealed
by the constitutional amendment to which we have referred, and that
the court was without jurisdiction to render judgment of
recommendation on a claim against the state when its validity was
denied by the state constitution. To the judgment thus rendered
this writ of error is prosecuted.
In
Railroad Co. v. Tennessee, 101 U.
S. 337, this Court was called upon to determine whether
the repeal by a state of a statutory provision authorizing itself
to be sued in its own courts, but which gave no power to the courts
to enforce their judgments and which enacted that when such
judgments were rendered, the money could only be obtained through
an appropriation by the legislature, was an impairment of the
obligation of a contract entered into by the state while the
authority conferred by the statute was unrepealed. In speaking on
this subject, this Court, by Mr. Chief Justice Waite, said:
"The question we have to decide is not whether the state is
liable for the debts of the bank to the railroad company, but
whether it can be sued in its own courts to enforce that liability.
The principle is elementary that a state cannot be sued in its own
courts without its consent. This is a privilege of sovereignty. It
is conceded that when this suit was begun, the state had withdrawn
its consent to be sued, and the only question now to be determined
is whether that withdrawal
Page 161 U. S. 243
impaired the obligation of the contract which the railroad
company seeks to enforce. If it did, it was inoperative so far as
this suit is concerned, and the original consent remains in full
force for all the purposes of the particular contract or liability
here involved."
"The remedy which is protected by the contract clause of the
Constitution is something more than the privilege of having a claim
adjudicated. Mere judicial inquiry into the rights of parties is
not enough. There must be the power to enforce the results of such
an inquiry before there can be said to be a remedy which the
Constitution deems part of a contract. Inquiry is one thing, remedy
another. Adjudication is of no value as a remedy unless enforcement
follows. It is of no practical importance that a right has been
established if the right is no more available afterwards than
before. The Constitution preserves only such remedies as are
required to enforce a contract."
"Here, the state has consented to be sued only for the purposes
of adjudication. The power of the courts ended when the judgment
was rendered. In effect, all that has been done is to give persons
holding claims against the state the privilege of having them
audited by the courts, instead of some appropriate accounting
officer. When a judgment has been rendered, the liability of the
state has been judicially ascertained, but there the power of the
court ends. The state is at liberty to determine for itself whether
to pay the judgment or not. The obligations of the contract have
been finally determined, but the claimant has still only the faith
and credit of the state to rely on for their fulfillment. The
courts are powerless. Everything after the judgment depends on the
will of the state. It is needless to say that there is no remedy to
enforce a contract if performance is left to the will of him on
whom the obligation to perform rests. A remedy is only wanted after
entreaty is ended. Consequently that is not a remedy, in the legal
sense of the term, which can only be carried into effect by
entreaty."
"It is clear, therefore, that the right to sue, which the State
of Tennessee once gave its creditors was not in legal effect
Page 161 U. S. 244
a judicial remedy for the enforcement of its contracts, and that
the obligations of its contracts were not impaired within the
meaning of the prohibitory clause of the Constitution of the United
States by taking away what was thus given."
Subsequently, in the case of
Railroad Co. v. Alabama,
101 U. S. 832, the
same question was presented on a state of facts somewhat stronger
in favor of the contention that there was a contract right than
that which had been considered in the foregoing case. There, the
facts were that the statute of the state existing at the time the
contract was made not only authorized a judgment to be rendered
against the state, but provided (we quote from the opinion)
"that if a judgment should be rendered against the state, it was
the duty of the comptroller, on the certificate of the clerk of the
court together with that of the judge who tried the cause that the
recovery was just, to issue his warrant for the amount, but no
certificate could issue until six months after the recovery of the
judgment. Code 1867, sec. 2536. It was also the duty of the
treasurer to pay all warrants drawn on him by the comptroller under
the authority of law. Code, sec. 442. But the constitution in force
then and now provides in express terms that no money should be
drawn from the treasury but in consequence of appropriations made
by law. Const. 1834 and 1870, art. 2, sec. 24."
Upon these facts, speaking through Mr. Chief Justice Waite, this
Court again said:
"We are unable to see any substantial difference between this
case and that of
Railroad Co. v. Tennessee, supra. Under
both the Tennessee and Alabama statutes, the courts are made little
else than auditing boards. If the funds are not voluntarily
provided to meet the judgment, the courts are not invested with
power to supply them. In Alabama, a warrant for the payment may be
secured, but the state may stop payment by withholding an
appropriation. Perhaps the judgment creditor may take one step
further towards the collection in Alabama than he can in Tennessee,
but both states may refuse to pay -- that is, may refuse to make
the necessary appropriation -- and the courts are powerless to
compel
Page 161 U. S. 245
them to do so. In neither state has there been granted such a
remedy for the enforcement of the contracts of the sovereignty as
may not, under the Constitution of the United States, be taken
away."
The statute of North Carolina which we now consider, and which
gave the courts of that state power to examine and recommend claims
against it to the legislature, is much more restrictive than were
the statutes of Tennessee and Alabama passed on in the cases just
cited. Applying to this case the reasoning of this Court in those
cases expressed, it becomes clear that the authority given by the
State of North Carolina to its court not being a part of the
contract on which the plaintiff in error had a right to rely, its
repeal did not impair the obligations of his contract in the sense
conveyed by those words when used in the Constitution of the United
States. This proposition so necessarily results from the
authorities, and is so self-evident in reason, that it was not
denied in the discussion at bar. Indeed, it was frankly conceded
that the exercise by a State of the power to repeal a grant of
authority to its courts to audit claims against itself would not in
any manner violate the obligations of contracts which had been
entered into by the state at a time when the power existed. Yet
whilst this concession was made, it was asserted that the
impairment of the obligation of the contract here claimed to have
been accomplished, arises from the fact that the state court
erroneously held that the amendment to the state constitution
repealed the court's authority to examine and recommend the claim
presented to it, when in fact such repeal had not taken place. In
other words, it was argued that although the right to have the
claim examined and recommended was existing and unrepealed, the
state court had impaired the obligations of the contract by holding
that such right was nonexisting, because repealed by a subsequent
provision of the state constitution. But this is mere reasoning in
a vicious circle, for the concession that the right could be taken
away without violating the contract clause of the Constitution
necessarily implied that the decision of the state court as to
repeal
vel non in no way involved rights protected from
impairment
Page 161 U. S. 246
under the Constitution of the United States. It is apparent that
no rights under the Constitution of the United States arose in
favor of the claimant from the provision conferring on the courts
of the state the authority to examine and recommend, since all the
benefits resulting therefrom could admittedly be withdrawn without
violating the contract. To give effect to the contention of the
plaintiff in error, we should be obliged to announce the
contradictory proposition that where there were no rights under the
Constitution of the United States to be impaired, yet a decision of
the state court had impaired such rights. We should also be obliged
to hold that although the state could at its will take away the
right without impairing the contract, yet a decision by the court
of last resort of the state that the right had been taken away was
an impairment of the contract. The fallacy contained in the
argument results from overlooking the fact that the moment it is
admitted that the repeal of the right to have the claim examined
and recommended is no impairment of the obligation of the contract
secured under the Constitution of the United States, the question
whether or not such right has been repealed becomes purely a
question of state law, to be determined by the state courts.
Judgment affirmed.