JUDGMENTS

CARTER V. STATE.

[42 LOUISIANA ANNUAL, 927.]

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SEIZURE OF STATE PROPERTY TO SATISFY JUDGMENT AGAINST STATE.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 consent given by statute to maintain suit against the state. If such consent were expressly given by the statute, it would be unconstitutional and void. Such a judgment is without compulsive force, and the only recourse for its satisfaction is by application to the legislature. STATUTE AUTHORIZING SUIT AGAINST STATE has no effect beyond referring to the judiciary, for settlement, 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 does not authorize a seizure of state property to satisfy such judgment, and only conveys an implication that the legislature will recognize such judgment as final, and make provision for the satisfaction thereof. LGISLATIVE CONTROL OF STATE FUNDS. The control, disposition, and appropriation of state funds to the payment of debts against the state are powers exclusively belonging to the legislature, and cannot be delegated to or exercised by the courts, under the Louisiana constitution. Land and Land, and A. H. Leonard, for the appellant. J. Henry Shepherd, district attorney, for the appellee. FENNER, 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 memberз, 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 cannot, 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 consent had been expressly given by the legislative power, it would be unconstitutional, null, and void.

1. 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 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 intention 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. Undoubt edly, 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.

Puffendorf 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 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 v. Haldimand, 1 Term Rep. 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 fieri facias 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.

2. We are quite satisfied that if the legislature had expressly authorized the court to execute this judgment by the issuance of the writ of fieri facias, 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 constitu tion 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.

SOVEREIGNTY - SUITS AGAINST A STATE. —A state cannot be sued and proceeded against as in the case of private persons, except by its own consent: McWhorter v. Pensacola etc. R. R. Co., 24 Fla. 417; 12 Am. St. Rep. 220, and note; Cornwall v. Commonwealth, 82 Va. 644; 3 Am. St. Rep. 121. CONFLICT BETween Legislative and JudiCIAL POWERS. — The judiciary can exercise no power which properly belongs to the legislature: Hawkins v. Governor, 1 Ark. 570; 33 Am. Dec. 346.

SCHMITT V. Drouet.

[42 LOUISIANA ANNUAL, 1064.]

OFFICIAL BONDS-NOTARY-LIABILITY OF SURETY. - The law which speci fies the conditions and obligations of an official bond furnished by a notary public in compliance therewith forms part of the bond, and must be strictly construed against the surety therein. OFFICIAL BONDS-NOTARY-LIABILITY OF SURETY. The surety on the official bond of a notary public is liable only to such persons as have employed him, and who have suffered injury on account of his failure to perform a duty incumbent on him or required and authorized by law. OFFICIAL BONDS-NOTARY LIABILTY OF SURETY. - Where a notary pub lic does a thing which the law does not authorize him to do, although he does so eo nomine, in his capacity of a notary, the surety on his bond is not liable.

OFFICIAL BONDS-NOTARY LIABILITY OF SURETY. A notary public is not authorized by law, nor is it a duty incumbent upon him, to write officially on any note, or utter any certificate, that a prolongation of pay. ment of a debt has been allowed by an act before him; hence the surety on his official bond is not liable for such act, even if such certificate is shown to be false.

Charles Lougue, for the appellant.

W. E. Murphy and Omer Villeré, for the appellees.

BERMUDEZ, C. J. This suit involves the liability of a surety on a notary's bond furnished in 1884.

From a judgment in favor of Trepagnier and Birba, the suręty, Rabasse, appeals.

The facts are as follows:

On the 28th of May, 1883, and on the 18th of December of the same year, two mortgage acts were drawn up by Oscar