
    No. 266.
    Leon M. Carter vs. The State of Louisiana.
    ' 1. An act of the Legislature authorizing a party to sue the State does not authorize'the issuance of a writ of fieri facias, commanding the seizure and sale of property of the State to satisfy the judgment rendered in such suit.
    2. The only effect of such judgment is to effect a settlement of disputed questions of law and fact involved, morally binding on the State, but possessing no executory force.
    ■8. The control, administration and disposition of the property and funds of the State and the appropriation thereof to the payment of debts are powers appertaining exclusively to the legislative department, and, under Articles 14 and 15 of the Constitution, can not be delegated to, or exercised by the judiciary department.
    
      APPEAL from the First District Court, Parish of Caddo. Taylor, J.
    
    
      Land & Land and A. H. Leonard for Plaintiff and Appellant:
    1. The judicial power, under the Constitution of the State, is one of the sovereign, powers of government, independent and exclusive of the legislative and executive powers of the government. See Arts. 14,15 and 80 of the Constitution.
    2. Under the present Constitution the courts of the State can only exercise judicial powers, and no law can be passed authorizing them or the several judges, thereof to exercise any other functions or to perform any other duties but such as are judicial. See Arts. 92,14 and 15.
    3. It is a universal principle oí jurisprudence that the judicial power of a court is. continuous, and ends only with the execution of its judgments; and that every court has the power to command the execution of its final sentences, decrees and orders.
    This principle of jurisprudence is stated by Sir William Blackstone in the following language: “All jurisdiction implies superiority of power; authority to, try would be vain and idle without an authority to redress; and the sentence of a court would be contemptible unless the court had power to command the execution of it.” 1 Blackstone’s Commentaries, 242.
    4. The same principle is expressly declared in our own State laws as follows: “The-execution of judgments belongs to the courts by which the causes have been, tried in the first instance, wnetlier such judgments have been affirmed or reversed on appeal.” See C. 1\, Arts. 017, 618.
    5. The same principle was recognized by the Supremo Court of the United States in the celebrated case of Chisholm vs. The State of Georgia, in which the State was sued by a citizen of another State, under a provision contained in the Constitution of the United States. See 2 Balias, p. 419; 1 Kent’s Commentaries, 297*
    45. The same principle, when a State consents to be sued and is properly brought into court, is recognized and declared by the Supreme Court of the United States in the case of Davis vs. Gray, in the following language: “When a State becomes a jjarty to a contract, the same rules of law are applied to it as to private persons, and, when properly brought into the forum of litigation, no right or immunity can be asserted by the State as an incident of its sovereignty* Davis vs. Gray, 16 Wall. BOB.
    7. A State can not be sued without its consent; but a State may waive this privilege and permit itself to be made a defendant in a suit by individuals or another-State. A State 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 before trial and judgment. Boors vs. Arkansas, 20 Howard, 527; Clarke vs. Banard, 106 U. S. 4B7; Cunningham vs. Mason et al., 109 U. S. 446.
    8. The act of the Legislature authorizing the plaintiff to sue the State contains no terms or conditions, but declares in plain and positive language that he shall have the right to sue the State and recover the amount of money adjudged to be due to him by the court taking cognizance of the suit. See Act No. 81 of 1884.
    9. The judicial powers of a cou>rt only end with the execution of its judgment. 3 Blackstone, 313; C. P., Arts. 617, 618.
    10.A judgment directing the payment of a sum of money is executed by a writ o£ fieri facias against the property of the debtor. O. P., Art. 641. This writ lies against all persons and corporations, whether privileged or not. 3 Blackstone, 417; C. P. 641.
    11. The writ of fieri facias is not a writ of compulsion or coercion; it does not command the debtor to do any act, to exercise any power, or to perform any duty-contrary to his will or pleasure. C. 3?., Arts. 642, 643; Blackstone, 417.
    12. The Constitution of the State ordains that all courts shall be opened, and every person for injury done him in his rights, lands, goods, person or reputation., shall have adequate remedy by due process of law, and justice administered without denial or unmeasureable delay. See Art. 11. The due process of law is distinguished into original, intermediate and final. Ifinal process is the process of execution. 3 Blackstone, 279,413.
    13. A State is a supreme political corporation; but when it waives its sovereignty or exemption from suit, and is properly brought into the forum of litigation, it becomes subject to the jurisdiction of the court in the same way and to the some extent that subordinate political corporations are subjected under the constitutional laws of the State. There is no sovereignty intheparties to a lawsuit, and none can be asserted in bar of the jurisdiction of the court. The sovereignty is in the court. Davis vs. Gray, 16 Wall.
    14. In suits between sovereign States there can bo no plea of sovereignty in bar of the jurisdiction of the court. 1 Kent, 297, and notes.
    15. When the General Assembly of the State pass a law authorizing a suit against the State, the courts are bound to-enforce it to the full extent of their jurisdiction or judicial powers under the Constitution, unless the law prescribes limitations on the powers of the courts or terms and conditions inconsistent with the full exercise thereof in the suit. See Arts. 80,11,14,15 and 92 of the Constitution. Chisholm vs. The State of Georgia, 2 Dallas, 419.
    
      J. Henry Shepherd, District Attorney, for Defendant and Appellee:
    1. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and general practice of mankind, and the exemption as one of the attributes of sovereignty is now enjoyed by the government of every State in the Union. Hans vs. Louisiana, 134 U. S. 13.
    2. State governments have the privilege of paying tlieir own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. Hans vs. Louisiana, 184 U. S. 13.
    3. The public property and money used for public purposes of the parishes of the State, to whom the sovereign has delegated but a portion of her powers, are exempt from seizure, even though judgments have been rendered in conformity to law. 1 An. 435 ; 4 An. 84; 6 An. 570: City vs. Sugshed, 35 An. 548.
    4. The public revenues and public property of the State are under the exclusive control of the legislative department of the government. That department is withoufauthority to divert them save in the method prescribed by the Constitution. A judgment authorizing the seizure of the property or money of the State would be a nullity.
    5. No money shall be drawn from the treasury except in pursuance of specific appropriation made by law. Article 43 of the Constitution. The General Assembly shall have no powernor authorize the payment of any claim against tlie State without express authority oí law. Article 45 of the Constitution. When the judgment orders the payment of a sum of money the party in whose favor it is rendered may apply to the clerk and obtain from him a writ of fieri facias against the property of his debtor. C. P. 641.
   The opinion of the court was delivered by

Fbnnbr, J.

By an act of the General Assembly, No. 81 of 1884, plaintiff was authorized to sue the State of Louisiana for a certain indebtedness alleged to be due under a contract with the State. In accordance therewith he brought his suit and recovered a judgment against the State in March, 1885, which became final without appeal. He alleges that at the session of the General Assembly in 1886 and at the subsequent session in 1888 he applied for an appropriation to satisfy his said judgment by bills for that purpose introduced by members, which said bills were defeated, and that his only remedy for the enforcement of his rights under said judgment is by the exercise of the judicial power.

He avers that the State owns property, rights and credits, which form no part of its annual revenues, derived from taxation for the support of the government, and which are not exempt from seizure and sale, and that he has the right to execute his judgment by seizure and sale thereof under the usual process.

He prays, therefore, that the State be cited through her Governor and that, after due proceedings, there be judgment decreeing that a writ of execution or fieri facias issue on said judgment against the State commanding the seizure and sale of any of her property not forming part of her annual revenues derived from taxation, to an amount sufficient to pay and satisfy said judgment.

The State appeared by counsel and filed an exception of no cause of action, and from a judgment sustaining said exception the plaintiff brings the present appeal.

The learned counsel of plaintiff fully and frankly concedes the principle, now fortunately too firmly established by repeated judicial decisions to admit of further controversy,- that a State of this Union can not, directly or indirectly, be sued by its own citizens, or by the citizens of other States or of foreign nations, either in its own courts or in the Federal courts, without its consent. His contention, as we understand it, is that the State, in this case, has consented to be sued, and that the effect of such consent is to subject the State to the judicial power and jurisdiction, not only for the purpose of entertaining, hearing and deciding the suit, but also for the purpose of executing and enforcing the judgment by the seizure and sale of the property of the State and by applying the proceeds to the satisfaction thereof.

Our answer to this contention is twofold, viz:

1. The consent to execute the judgment rendered by seizure and sale of the property of the State, is not implied by, and does not follow from, the consent given to the suit.

2. If such copsent had been expressly given by the legislative power, it would be unconstitutional, null and void.

I.

Legislative acts authorizing individuals to sue the State upon claims which the Legislature, for any cause, does not see fit to recognize and pay, have been of common occurrence in this and in other States. Their purpose and effect, as commonly understood, are undoubtedly nothing more than to refer to the judiciary the settlement of the questions of law and fact involved in the claims, and the determination, in the form of a judgment, of the rights of the parties. It is implied, as a matter of course, that the legislative power, after making such a reference, will accept and abide by the judicial determination, will recognize the judgment rendered as final and conclusive, and will, in due and ordinary course, make provision for the satisfaction thereof.

That such was the interpretation of his remedy adopted by the plaintiff himself is evinced by his applications to successive General Assemblies for an appropriation to satisfy his judgment.

But to assume that, by consenting to be sued, the Legislature intended to abdicate its constitutional function of controlling and administering the public funds and property and of appropriating them to such lawful purposes as it may deem best, and to delegate to the judicial department the power of seizing such property and applying it to the payment of a particular debt, would be, beyond measure, rash and unjustifiable. No such intention is expressed in the act or can be fairly implied from its terms; and we consider it beyond question that no such ever entered into the mind of any member of the legislative body. The incidents and appurtenances of ordinary jurisdiction have no application to a case like this. Undoubtedly jurisdiction granted to render judgments between parties subject to judicial power and control implies power to execute such judgments. But the sovereign is not subject to judicial power and control, except just so far as it has consented thereto; the moment the limit of that consent is reached the judiciary must instantly halt. Satisfied as we are that the Legislature has not consented and did not intend to consent to the execution of this judgment by writ of fieri facias, we are bound to deny such remedy.

Counsel asks, of what use is the power to render judgment against the State, if the court is powerless to execute the judgment? That question was anticipated by Mr. Hamilton in the discussion of the Constitution of the United States before its final adoption. ‘ To what purpose,” he asked, “ would it be to authorize suits against sovereign States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State.” Federalist No. 81. He never dreamed that authorizing suit against a State would imply the right to issue fieri facias on the judgment.

Puffendorff says: “And if the prince gives the subject leave to enter an action against him in his own courts, the action itself proceeds rather upon natural equity than on municipal laws. For the end of the action is not to compel the prince to observe the contract, but to persuade him.”

In England claims against the Crown might be prosecuted before certain courts in the form of petitions of right, with the consent of the King, but it was held by Lord Mansfield that “ if there were a recovery against the Crown, application must be made to Parliament, and it would come under the head of supplies for the year.” Macbeth vs. Haldimand, 1 Durn. & East, 172.

We have examined all the authorities quoted by counsel and find none of them to support his contention. We are quite certain that no precedent exists sustaining the issuance of a fi. fa. on a judgment against a sovereign State in her own courts, though rendered with her own consent.

The only recourse for satisfaction is by application to the Legislature, with whom the judgment should surely have great persuasive force, but none compulsive.

II.

We are quite satisfied that, if the Legislature had expressly authorized the court to execute this judgment by the issuance of the writ of fl. fa., and the seizure and the sale of the property of the State for its satisfaction, such action would have been unconstitutional, null and void.

Articles 14 and 15 of the Constitution divide the powers of government into three distinct departments, and provide that “no one of these departments, nor any person or collection of persons holding office in any one of them, shall exercise power properly belonging to either of the others.”

The fiscal affairs of the State, the possession, control, administration and disposition of the property, funds and revenues of the State are matters appertaining exclusively to the legislative department. Except in so far as the Constitution itself has appropriated them to particular purposes, the legislative department has exclusive control of them. No debt of the State can be paid without an appropriation, and the Constitution provides the manner in which alone appropriations shall be made. The judicial department is vested with no right or authority over such matters directly or indirectly. If the Legislature, in authorizing the judiciary to entertain suits and render judgments against the State, should add the authority to execute the same by seizure and sale of the State’s property and the application thereof to the payment of the debt recognized by the judgment, it would be delegating to the judicial department powers exclusively vested in the legislative department, in violation of the express prohibition of the Constitution. The giving to the exercise of such powers the form of judicial process would not destroy its essential character. It would still be in effect the exercise of the purely legislative power of disposing of, and appropriating the property and funds of the State to the payment of a particular debt of the State. Such powers the judiciary and all members thereof are prohibited from exercising, with or without the legislative consent.

If the Legislature could delegate such power in one instance, it might refer all public creditors to the courts for satisfaction, and shoulder on the judiciary the whole burden of distributing the State’s property and funds amongst them in a concursus.

We will not further elaborate the subject.

Judgment affirmed.  