The Constitution of Tennessee, in force in 1838, declares that
"suits may be brought against the state in such manner and in such
courts as the legislature may by law direct." The statute of 1855
providing that actions might the state under the same rules and
regulations that govern those between private citizens, but
conferring no power on the court to execute their judgments, was
repealed in 1865. No other law was enacted prescribing the manner
or the courts in which the state could be sued. In a suit
subsequently brought by the state in 1872 against the Bank of
Tennessee and certain of its creditors, A., who was admitted a
defendant, filed a cross-bill, setting up that while the first
statute was in force, the bank became indebted to him and, praying
that under the indemnity clause of its charter, a decree be
rendered against the state for the amount of the debt. The
cross-bill was dismissed solely upon the ground that the state
could not be sued in her own courts.
Held that the
repealing statute of 1865 did not impair the obligation of a
contract within the meaning of the contract clause of the
Constitution of the United States.
Page 101 U. S. 338
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
On the 19th of January, 1838, the State of Tennessee established
a bank in its own name and for its own benefit, and pledged its
faith and credit to give indemnity for all loses arising from any
deficiency in the funds specifically appropriated as capital. The
state was the only stockholder, and entitled to all the profits of
the business. The bank was by its charter capable of suing and
being sued. At that time, the constitution of the state contained
this provision: "Suits may be brought against the state in such
manner and in such courts as the legislature may by law direct."
Art. 1, sec. 17. No law had then been passed giving effect to this
express grant of power, but in 1855 it was enacted that actions
might be instituted against the state under the same rules and
regulations that govern actions between private citizens, process
being served on the district attorney of the district in which the
suit was instituted. Code, sec. 2807. No power was given the courts
to enforce their judgments, and the money could only be got through
an appropriation by the legislature.
In 1865, this law was repealed, and after that there was no law
prescribing the manner or the courts in which suits could be
brought against the state. On the 16th of February, 1866, an act
was passed to wind up and settle the affairs of the bank, under
which an assignment of all the property was made to Samuel Watson,
trustee. Afterwards, on the 16th of May, 1866, the state and the
trustee filed a bill in equity, in the chancery court at Nashville,
against the bank and its creditors, for an account of debts and
assets and a decree of distribution. At the November Term, 1872, of
the court, the Memphis and Charlestown Railroad Company was
admitted as a defendant to this suit, and given leave to file a
cross-bill. This cross-bill
Page 101 U. S. 339
was accordingly filed, and set forth an indebtedness from the
bank to the railroad company, which accrued while the law allowing
suits against the state was in existence, and sought to enforce the
liability of the state under the indemnity clause of the charter.
To this bill both the state and Watson, the trustee, demurred, and
assigned for cause, among others, that the state could not be sued.
The demurrer was sustained by the chancery court, and the
cross-bill dismissed. An appeal was then taken to the supreme court
of the state, where the decree below was affirmed, upon the express
ground that the repeal of the law authorizing suits against the
state was valid, and did not impair the obligation of the contract
which the railroad company had. All other questions were waived by
the court, and the decision placed entirely on the ground that as
the state could not be sued in its own courts, the bill must be
dismissed. To reverse that judgment this writ of error was
brought.
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 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
Page 101 U. S. 340
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. Every thing 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, 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. This renders it unnecessary to
consider whether in this suit a cross-bill could have been
maintained by the railroad company if the right to sue had been
continued, and also whether a remedy given after the charter of the
bank was granted, but in force when the debt of the bank was
incurred, might be taken away without impairing the obligation of
the contract of the state to indemnify the creditors against loss
by reason of any deficiency in the capital. Neither do we find it
necessary to determine what would be a complete judicial remedy
against a state, nor whether, if such a remedy had been given, the
obligation of a contract entered into by the state when it was in
existence
Page 101 U. S. 341
would be impaired by taking it away. What we do decide is that
no such remedy was given in this case.
Judgment affirmed.
MR. JUSTICE SWAYNE and MR. JUSTICE STRONG dissented.