The Constitution of the United States of America: Analysis and Interpretation Part 119

[543] 149 U.S. 308, 401-404 (1893).

[544] 215 U.S. 349, 370 (1910).

[545] 276 U.S. 518 (1928).

[546] Ibid. 533. Justice Holmes was influenced in part by the article of Charles Warren, New Light On The History Of The Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced evidence to show that Justice Story's interpretation in the Tyson Case was contrary to the intention of the framers of the act. Mr. Warren did not, however, contend that the Tyson rule was unconst.i.tutional. Justice Holmes was joined in his dissent by Justices Brandeis and Stone. In addition to judicial dissatisfaction with the Tyson rule as manifested in dissents, disapproval in Congressional quarters resulted in bills by Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, 1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st Cong., 1st. sess.

[547] 293 U.S. 335 (1934).

[548] This concept was first used by Justice Bradley in Burgess _v._ Seligman, 107 U.S. 21 (1883).

[549] 293 U.S. 335, 339.

[550] 304 U.S. 64 (1938).

[551] 304 U.S. 64, 69-70, 77-78.

[552] Ibid. 79-80.

[553] 304 U.S. 64, 80-90.

[554] Ibid. 90, 91-92.

[555] 311 U.S. 223 (1940).

[556] 311 U.S. 169 (1940). This decision has been thoroughly criticized by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 (1941). _See also_ Mitch.e.l.l Wendell, Relations Between Federal and State Courts (New York, 1949), 209-223. This book contains a good account of the operation of the Tyson and Tompkins rules, pp. 113-247.

[557] 333 U.S. 153 (1948). For other cases applying the rule that decisions of State intermediate courts are binding unless there is convincing evidence that the State law is otherwise, _see_ Six Companies of California _v._ Highway Dist., 311 U.S. 180 (1940); Stoner _v._ New York Life Ins. Co., 311 U.S. 464 (1940).

[558] Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941).

[559] 28 U.S.C.A. -- 1652; 62 Stat. 944 (1948). In 1938, the year of the Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 -- 5) was superseded; and from that time until the enactment of 62 Stat. 944, the federal courts were guided in diversity cases by the Federal Rules of Civil Procedure formulated by the Supreme Court by virtue of the authority delegated it, in 1934, by 48 Stat. 1064.

[560] Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938).

[561] 326 U.S. 99 (1945).

[562] Ibid. 108-109.

[563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice Murphy concurred. Justice Rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that Congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding State statutes of limitations barring such suits in State courts. In his view, if any change were to be made, it was for Congress and not the Court to make it. In line with this ruling _see_ Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949); _also_ Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949).

[564] 2 Story, Commentaries, 467 -- 1696 (2d. ed., 1851).

[565] An interesting case which reached the Supreme Court under this clause was Pawlet _v._ Clark, 9 Cr. 292 (1815). In his opinion for the Court, Justice Story took occasion to a.s.sert that grants of land by a State to a town could not afterwards be repealed so as to divest the town of its rights under the grant. Ibid. 326; _cf._ Trenton _v._ New Jersey, 262 U.S. 182 (1923).

[566] The Exchange _v._ McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co.

_v._ S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola _v._ The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938).

[567] Princ.i.p.ality of Monaco _v._ Mississippi, 292 U.S. 313, 330 (1934).

[568] Ibid.

[569] The "Sapphire," 11 Wall. 164, 167 (1871).

[570] Ibid. 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought.

[571] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938); citing Jones _v._ United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign State is, of course, a political question.

[572] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938); citing United States _v._ The Thekla, 266 U.S. 328, 340, 341 (1924); United States _v._ Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). _See also_ Ex parte Republic of Colombia, 195 U.S. 604 (1904).

[573] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938).

Among other benefits which the Court cites as not extending to foreign States as litigants include exemption from costs and from giving discovery. Decisions are also cited to the effect that a sovereign plaintiff "should so far as the thing can be done, be put in the same position as a body corporate." Ibid, note 2, pp. 134-135.

[574] 5 Pet. 1, 16-20 (1831).

[575] Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809).

[576] Jackson _v._ Twentyman, 2 Pet. 136 (1829).

[577] Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 (1871). _See_, however, Laca.s.sagne _v._ Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens.

[578] Browne _v._ Strode, 5 Cr. 303 (1809).

[579] 2 Dall. 419 (1793). For an earlier case where the point of jurisdiction was not raised, _see_ Georgia _v._ Brailsford, 2 Dall. 402 (1792). For subsequent cases prior to 1861, _see_ Rhode Island _v._ Ma.s.sachusetts, 12 Pet. 657 (1838); Florida _v._ Georgia, 17 How. 478 (1855).

[580] Kentucky _v._ Dennison, 24 How. 66, 98 (1861).

[581] 1 Cr. 137 (1803).

[582] Ibid. 174. _See also_ Wiscart _v._ Dauchy, 3 Dall. 321 (1796).

This exclusive interpretation of article III posed temporary difficulties for Marshall in Cohens _v._ Virginia, 6 Wheat. 264 (1821), where he gave a contrary interpretation to other provisions of the Article. The exclusive interpretation as applied to original jurisdiction of the Supreme Court has been followed in Ex parte Bollman, 4 Cr. 75 (1807); New Jersey _v._ New York, 5 Pet. 284 (1831); Ex parte Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex parte Levitt, Pet.i.tioner, 302 U.S. 633 (1937), the Court was asked to purge itself of Justice Black on the ground that his appointment to it violated the second clause of section 6 of Article I. Although it rejected pet.i.tioner's application, it refrained from pointing out that it was being asked to a.s.sume original jurisdiction contrary to the holding in Marbury _v._ Madison.

[583] 252 U.S. 416 (1920).

[584] 262 U.S. 447 (1923).

[585] 157 U.S. 229, 261 (1895). Here the Court refused to take jurisdiction on the ground that the City of Oakland and the Oakland Water Company, a citizen of California, were so situated that they would have to be brought into the case, which would make it then a suit between a State and citizens of another State and its own citizens. The same rule was followed in New Mexico _v._ Lane, 243 U.S. 52, 58 (1917); and in Louisiana _v._ c.u.mmins, 314 U.S. 577 (1941). _See also_ Texas _v._ Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the original jurisdiction of the Supreme Court in specific cla.s.ses of cases _see_ the discussion of suits affecting amba.s.sadors and suits between States, _supra_, pp. 571, 591-593.

[586] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884).

[587] 127 U.S. 265 (1888).

[588] 1 Stat. 73, 80.

[589] 127 U.S. 265, 297. _Note also_ the dictum in Cohens _v._ Virginia, 6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be inst.i.tuted in any of the federal courts; not to those cases in which an original suit might not be inst.i.tuted in a federal court. Of the last description, is every case between a State and its citizens, and, perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction."

[590] Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930).