Where a proceeding was instituted in Louisiana in the name of
the treasurer of the state to recover a tax imposed upon property
inherited by aliens, a citation served upon that officer was
sufficient. He was the "adverse party," under the Judiciary
Act.
The tenth rule of this Court, directing process to be served
upon the chief executive magistrate and attorney general, applies
to those cases only in which "the state is a party on the record."
When an officer of the state is the party prosecuting the suit for
the state, the citation must be served on him.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
Page 58 U. S. 2
It appears that a proceeding was instituted in the state court
by the treasurer of the state to recover certain taxes alleged to
be due from the plaintiffs in error under a law of Louisiana which
imposes a tax of ten percent upon the amount of property inherited
by aliens in that state.
The payment of the tax was resisted by the plaintiffs in error,
but the case was finally decided against them in the Supreme Court
of Louisiana, and they thereupon brought this writ of error upon
the ground that the authority exercised under the state law was
contrary to the Constitution and treaties of the United States.
The citation required by the act of 1789, was served on the
treasurer, by whom and in whose name, as treasurer, the proceedings
had been instituted and conducted, and in whose favor the judgment
was entered.
A motion is now made to dismiss this writ of error upon the
ground that the state is the real party to the suit, in the name of
the treasurer, and that the citation ought therefore to have been
served on the chief executive magistrate and attorney general of
the state, according to the provisions of the 10th rule of this
Court.
But that rule applies to those cases only in which the state is
a party on the record. It is intended to point out the officers who
shall be held to represent the state when process is issued against
it, so far as the service of the process is concerned. The only
mode in which a state can be cited to appear is by serving the
process on some one or more of its officers, and those above named
in the rule were considered by the court to be its appropriate
representatives in a summons or citation to appear in this
Court.
But the citation must be directed to the party on the record and
served on him. And when an officer of the state is the party
prosecuting the suit for the state, the citation must be served on
him. In this case, a notice or citation on the chief executive
officer of attorney general would not be sufficient, for the
treasurer is the person who has obtained the judgment, and has the
right to receive the money. He is the actor -- the plaintiff in the
suit. And the chief executive officer and attorney general do not
represent him, and may or may not support his proceedings.
This rule of practice has been uniformly followed in this Court.
There have been many cases in which an officer of the state, acting
in behalf of the state, has been one of the parties. And the 10th
rule has never been applied to a case of that kind, and the
citation has always been served on the officer, whether conducting
the proceedings in his own name or that
Page 58 U. S. 3
of his office. The practice is founded upon the language of the
act of 1789, c. 20, which directs the "adverse party" to be cited,
on a writ of error or appeal. The "adverse party" is the one which
appeared in the suit and who prosecuted or defended it, and in
whose favor the judgment was rendered which the plaintiff in the
writ of error seeks to reverse.
The motion to dismiss this writ of error must therefore be
overruled.
Order
On consideration of the motion made by Mr. Dunbar to dismiss
this cause on a prior day of the present term, to-wit, on Friday,
the 19th instant, and of the arguments of counsel thereupon, had as
well against as in support thereof, it is now here ordered by the
Court that the said motion be, and the same is, hereby
overruled.