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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, inake 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. 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 tbe 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 ex. pressly 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 bolding 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 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 ex• press 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.
SOVEREIGNTY Sorts AGAINST A STATE. — A state cannot be sued and proceeded against as in the case of private persons, except by its own consent: Mc Whorter 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 legislaturo: 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 spool
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 strictlý construed against the surety thereiu. OFFICIAL BONDS — NOTARY — LIABILITY OF SURETY. — The surety on the
official bond of a notary public is liable only to such persons as have em. ployed 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 pube
lio 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 atter 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
Drouet, & notary for the parish of Orleans, by the first of which Degeorge is said to have issued two notes of five hun. dred dollars each, in favor of Trepagnier, and by the second of which Mansion is stated to have issued, in favor of Tudury, three notes of one thousand dollars each, and both to have secured them by mortgage on their respective property described in the acts.
At the dates of the acts, the notary paraphed the notes "ne varietur," as secured by mortgage by acts before him.
On the notes are found unsigned indorsements showing payments of interest at different times.
Each of the five-hundred-dollar notes bears an indorsement in the following terms: “Ne varietur."
“In conformity with an act passed this day before me, containing prolongation of payment of this note for one year from 28th of May last, and all interest paid up to 28th May, 1889.
“OSCAR DROUET, Notary Public. "NEW ORLEANS, 11th May, 1888.”
Each of the one-thousand-dollar notes bear a similar indorsement, except as to the date from which the prolongation begins, and up to which the interest was paid, which is the 18th of December, 1889. The indorsement is dated “New Orleans, 27th Dec., 1888," and is signed “Oscar Drouet, Notary Public."
Neither the acts of mortgage nor the notes were signed by either Degeorge or Mansion. That which purported to be their signatures thereto had been forged by Drouet, the notary. The acts of prolongation referred to in the indorsements had no existence. They had never been even drawn up and forged.
Trepagnier and Birba owned the notes previous to the dates of the last indorsements thereon referring to the acts of prolongation.
On the 22d of August, 1884, long before the date of the last indorsements, Drouet had furnished a bond, as notary for the parish of Orleans, for the sum of five thousand dollars, with Eugene Rabasse as surety thereon, containing the following stipulation: "The condition of the above obligation is such that of the above-bounden Oscar Drouet shall well and faithfully discharge and perform all the duties incumbent on him as notary public in and for the parish of Orleans, then and in such case the above obligation to be null and void, otherwise to remain in full force and virtue."