The New Orleans Daily Democrat

THE STATE IN COURT

The report of the Committee on Limitations recommends the adoption of the following as one of the articles of the projected constitution:

Art. 18. The State of Louisiana shall never be made a defendant in any court, Federal or State.

It must occur to any constitutional lawyer that such an unqualified declaration as this is a manifest absurdity. The Convention cannot possibly have any power whatever to define or circumscribe the judicial power of the general government, or to declare that this State shall not remain amenable to the jurisdiction plainly conferred upon the courts of the Union by the Federal constitution. The jurisdiction of these courts is conferred and defined in that instrument, and to it those courts will look for their authority. The second section of article 3, and the eleventh amendment, contain the entire delegation of the Federal judicial power, and they name, at least, one instance where a State may be made defendant in a suit. In the face of this plain delegation, it is folly for the Convention to incorporate so unqualified a declaration in the constitution of the State. The Federal courts, in passing upon their jurisdiction, would not pay the slightest attention to it, and the only effect of it would be to take from the Legislature the power of allowing individuals the privilege of suing the State. For all purposes of resisting the encroachments of the Federal courts, the article would be a mere dead letter. Upon the question of their jurisdiction, those courts will always look to the Federal constitution as the sole source of their power.

The encroachments of the Federal judiciary must be met, but in an entirely different way. As every lawyer knows, in every case wherein the jurisdiction of the Federal courts has been pushed to the extreme, it has been to enforce immunities and privileges voluntarily granted by the State under the conditions of the contract. In such cases it has invariably been held that a State cannot be made a party defendant at the suit of an individual. The most extreme view ever taken by the Supreme Court is that officers of a State may be enjoined from executing a law in plain violation of the constitution or the laws of the United States. No provision that can be inserted in the State constitution can prevent a legislature from passing laws violative of the Federal constitution, which will be more binding than the provisions of that instrument itself. If such laws are passed they are not binding, and if they are not the Federal courts have the right to so declare in suits properly brought before them.

In the other class of cases the remedy is to take from the Legislature, by proper limitations of its power, all right or power to create obligations on the part of the State, which shall submit the State to the jurisdiction of the Federal courts under that provision of the Federal constitution which forbids a State to pass a "law impairing the obligation of contracts." The constitutions of Georgia and Pennsylvania may well serve us as models in this respect. These instruments declare the right of taxation to be a sovereign and inalienable right, and deprive the legislatures of all authority to "irrevocably give, grant, limit or restrain" it; and all "laws, grants, contracts, and all other acts whatsoever" to this effect are declared absolutely null and void. They also declare that the exercise of the police power shall never be abridged. They furthermore declare that no laws shall be passed "making irrevocable grants of special privileges or immunities." It is by such provisions as this that it is proposed to retain to the State the control of her own corporations and internal affairs, and exclude the intervention between them and herself of the Federal courts. This is the only practical manner in which the object aimed at in the article recommended by the Committee on Limitations can be realized.

In many particulars the report of the Committee on Limitations is made to conform to the provisions of these constitutions; but in one instance, at least, it has gone to an extreme that was never dreamed of by the lawgivers of those States. Were this report adopted, such a thing as a corporation would be forbidden to exist in the State of Louisiana. This is certainly not desirable in a great commercial community like this.

Article 9 of this report provides that the Legislature shall not pass any "local or special" laws "creating corporations" or "granting to [any corporation, association or individual any special or exclusive right, privilege or immunity." This is all right and proper, and it serves the two-fold purpose of forbidding monopolies and requiring all such institutions to be incorporated under a general law. It even proposes to incorporate all municipalities, except New Orleans, by a general law. This we do not believe can be done, since in such political corporations there are always delegations of sovereign powers, of taxation, police, etc., which should be special. So far as it affects private corporations, however, there can be no objection to it.

But how are those private institutions to be incorporated? Article 17 of this report reads as follows:

Art. 17. That no ex post facto law, nor law impairing the obligations of contracts, or retrospective in its operation, or making any grant of special privileges or immunities, can be passed by the General Assembly, etc.

Of course this provision treats of general laws. A monopoly cannot be created by a general law, so that this provision against the making of "any grant of special privileges or immunities" does not apply to such institutions, but to ordinary corporations. To take from the Legislature all power to make such grants in general laws is, we think, carrying a good principle to a most pernicious extreme. Neither in the constitution of Pennsylvania nor in that of Georgia, in which this doctrine has been carried to an extent never before attempted, is there any such limitation upon the legislative power. These States content themselves with saying that no general law, making irrevocable grants of special privileges or immunities, shall be passed, and that none such of any kind shall be made by a local or special law. They have regarded it sufficient for the protection of the State and her control over her corporations against the invasion of the Federal judicial power, to forbid the Legislature to confer upon such institutions any charter privileges or immunities which the State shall not be empowered to revoke at will-to make "irrevocable grants," etc.

There is no necessity to go further than this-certainly not to the extent proposed by the report of the Committee on Limitations if the effect of the article recommended by it be as we apprehend, to forbid by general legislation the incorporation of chartered institutions.