Under the Constitution of the State of Arkansas, the legislature
passed a law allowing the state to be sued.
According to this law, a suit was brought upon some of the state
bonds, and whilst the suit was going on, the legislature passed
another law requiring the bonds to be filed in court or the suit to
be dismissed.
The suitor refusing to file his bonds, the suit was dismissed,
and the case was carried to the supreme court of the state, where
the judgment was affirmed. The case, being brought to this Court
under the twenty-fifth section of the Judiciary Act, must be
dismissed for want of jurisdiction.
The permission to bring the suit was not a contract whose
obligations were impaired by the passage of the subsequent law.
Page 61 U. S. 528
These three cases depended upon the same principle, and are
therefore classed together. The report in the first-named case will
apply to them all. It was a case which was brought up from the
Supreme Court of the State of Arkansas by a writ of error issued
under the twenty-fifth section of the Judiciary Act.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This was an action of covenant, brought in the Circuit Court for
Pulaski County, in the State of Arkansas, to recover the interest
due on sundry bonds issued by the state, and which the state had
failed to pay according to its contract.
The constitution of the state provides that "The general
assembly shall direct by law in what courts and in what manner
suits may be commenced against the state." And in pursuance of this
provision, a law was accordingly passed, and it is admitted that
the present suit was brought in the proper court and in the manner
authorized by that law.
The suit was instituted in the circuit court on the 21st of
November, 1854. And after it was brought, and while it was pending
in the circuit court, the legislature passed an act, which was
approved on the 7th of December, 1854, which provided,
"That in every case in which suits or any proceedings had been
instituted to enforce the collection of any bond or bonds issued by
the state, or the interest thereon, before any judgment or decree
should be rendered, the bonds should be produced and filed in the
office of the clerk, and not withdrawn until final determination of
the suit or proceedings and full payment of the bonds and all
interest thereon, and might then be withdrawn, cancelled, and filed
with the state treasurer by order of the court, but not
otherwise."
And the act further provided that in every case in which any
such suit or proceeding had been or might be instituted, the court
should, at the first term after the commencement of the suit or
proceeding, whether at law or in equity, or whether by original or
cross-bill, require the original bond or bonds to be produced and
filed, and if that were not done and the bonds filed and left to
remain filed, the court should on the same day dismiss the suit,
proceeding, or cross-bill.
Afterwards, on the 25th of June, 1855, the state appeared to the
suit by its attorney, and without pleading to or answering the
declaration of the plaintiff, moved the court to require him to
file immediately in open court the bonds on which the
Page 61 U. S. 529
suit was brought, according to the act of assembly above
mentioned, and if the same were not filed, that the suit be
dismissed.
Upon this motion, after argument by counsel, the court passed an
order directing the plaintiff to produce and file in court
forthwith the bonds mentioned and described in the declaration. But
he refused to file them, and thereupon the court adjudged that the
suit be dismissed, with costs.
This judgment was afterwards affirmed in the supreme court of
the state, and this writ of error is brought upon the
last-mentioned judgment.
The error assigned here is that the Act of December 7, 1854,
impaired the obligations of the contracts between the state and the
plaintiff in error evidenced by and contained in each of the said
bonds and the endorsement thereon, and was therefore null and void
under the Constitution of the United States.
The objection taken to the validity of the act of assembly
cannot be maintained. It is an act to regulate the proceedings and
limit the jurisdiction of its own courts in suits where the state
is a party defendant, and nothing more.
It is an established principle of jurisprudence in all civilized
nations that the sovereign cannot be sued in its own courts or in
any other without its consent and permission, but it may if it
thinks proper waive this privilege and permit itself to be made a
defendant in a suit by individuals or by another state. And as this
permission is altogether voluntary on the part of the sovereignty,
it follows that it may prescribe the terms and conditions on which
it consents to be sued and the manner in which the suit shall be
conducted, and may withdraw its consent whenever it may suppose
that justice to the public requires it.
Arkansas, by its Constitution, so far waived the privilege of
sovereignty as to authorize suits to be instituted against it in
its own courts, and delegated to its general assembly the power of
directing in what courts and in what manner the suit might be
commenced. And if the law of 1854 had been passed before the suit
was instituted, we do not understand that any objection would have
been made to it. The objection is that it was passed after this
suit was instituted, and contained regulations with which the
plaintiff could not conveniently comply. But the prior law was not
a contract. It was an ordinary act of legislation, prescribing the
conditions upon which the state consented to waive the privilege of
sovereignty. It contained no stipulation that these regulations
should not be modified afterwards if upon experience it was found
that further provisions were necessary to protect the public
interest, and
Page 61 U. S. 530
no such contract can be implied from the law, nor can this Court
inquire whether the law operated hardly or unjustly upon the
parties whose suits were then pending. That was a question for the
consideration of the legislature. They might have repealed the
prior law altogether and put an end to the jurisdiction of their
courts in suits against the state if they had thought proper to do
so, or prescribe new conditions upon which the suits might still be
allowed to proceed. In exercising this latter power, the state
violated no contract with the parties; it merely regulated the
proceedings in its own courts and limited the jurisdiction it had
before conferred in suits when the state consented to be a party
defendant.
Nor has the state court, in the judgment brought here for
review, decided anything but a question of jurisdiction. It has
given no decision in relation to the validity of the contract on
which the suit is brought, nor the obligations it created, or the
rights of parties under it. It has decided merely that it has no
right under the laws of the state to try these questions unless the
bonds given by the state are filed. The plaintiff refused to file
them pursuant to the order of the court, and the case was thereupon
dismissed for want of jurisdiction in the court to proceed further
in the suit. There is evidently nothing in the decision, nor in the
act of assembly under which it was made, which in any degree
impairs the obligation of the contract, and nothing which will
authorize this Court to reverse the judgment of the state
court.
The writ of error must therefore be dismissed for want of
jurisdiction in this Court.