New Jersey v. New York (28 U.S. 461)

A BILL was filed on the equity side of the court, by the state of New Jersey, on the 20th of February 1829, against the people of the state of New York; and on motion of Mr Wirt for the complainants, a subpoena was awarded by the court on the 16th of March 1829. The writ issued on the 26th of May 1829. A copy of the subpoena and of the bill was served on the attorney general of New York, personally, on the 5th day of June 1829, by the marshal of the southern district of New York, and on the acting governor of the state, by transmitting the same to him by letter. The acting governor acknowledged 'due service of the same,' by an indorsement on the subpoena, signed by him on the 5th day of June 1829.

The subpoena was returnable on the first Monday in August 1829, being the third day of that month, and fifty-nine days after the service. And no appearance having been entered for the defendants, on the 6th of October 1829 an alias subpoens was issued, returnable to January term 1830. This writ was served on the acting governor of New York on the 9th of November 1829, sixty-one days before the term, by delivering a true copy of the same to him. The marshal of the southern district of New York returned, as to the attorney general of New York, 'the attorney general of New York, Green C. Bronson, Esq. not found, being absent, and not within my district.'

Together with the alias subpoena, there was served on the acting governor of the state of New York, in the manner before stated, a notice signed by the solicitor for the complainants, in the following terms:

'To Enos T. Throop, Esquire, governor of the state of New York.

'By virtue of a writ of subpoena to you directed and herewith shown, you are required to be and appear, on behalf of the people of the state of New York, before the supreme court of the United States holding pleas in equity, on the second Monday in January next, at the city of Washington, in the district of Columbia, being the present seat of the national government of the United States, to answer concerning those things which shall be objected to the said state in a bill in equity now depending in the said court, wherein the state of New Jersey is complainant, and the people of the state of New York are defendants, to do and receive, on behalf of the said state of New York, what further the said court shall have considered in this behalf. And this you may in no wise omit, under the penalty of five hundred dollars, dated the first Monday of August, in the year of our Lord 1829.' A similar notice was issued, directed to the attorney general of New York, but was not served upon him.

No appearance having been filed on the 12th of January 1830, Mr Southard, attorney general of New Jersey, and Mr Wirt, solicitors for the complainants, addressed to the governor of the state and the attorney general of New York the following letter:

'A bill having been filed on the equity side of the supreme court of the United States, by the state of New Jersey against the people of the state of New York, a copy whereof, with the usual and regular process of subpoena to appear and answer the said bill, having been duly served upon you, and you having failed to appear on the return day of the said process, notice is hereby respectfully given to you, that we, as solicitors for the state of New Jersey, complainant in the said bill, will move the said supreme court of the United States, on Saturday the 13th of February next, to proceed ex parte in the said cause, and to take the said bill pro confesso, and render a decree in conformity with the prayer thereof, according to the rules of practice established in the said court, or for such other order as to the said court may seem meet; unless, on or before the said 13th of February next, you shall have appeared and answered the said bill, or shall show sufficient cause to the contrary.'

The subpoena issued on the filing of a bill in which the state of New Jersey were complainants, and the state of New York were defendants, was served upon the governor and attorney general of New York sixty days before the return day, the day of the service and return inclusive. A second subpoena issued, which was served on the governor of New York only, the attorney general being absent. There was no appearance by the state of New York.

By the Court: This is not like the case of several defendants, where a service on one might be good, though not on another. Here the service prescribed by the rule is to be on the governor, and on the attorney general. A service on one is not sufficient to entitle the court to proceed.

Upon an application by the counsel for the state of New Jersey, that a day might be assigned to argue the question of the jurisdiction of this court to proceed in the case, the court said they had no difficulty in assigning a day. It might be as well to give notice to the state of New York, as they might employ counsel in the interim. If, indeed, the argument should be merely ex parte, the court could not feel bound by its decision; if the state of New York desired to have the question again argued.

A notice was given by the solicitors for the state of New Jersey to the governor of the state of New York, dated the 12th of January 1830, stating that a bill had been filed on the equity side of the supreme court, by the state of New Jersey, against the people of the state of New York, and that on the 13th of February following, the court would be moved in the case for such order as the court might deem proper, &c. Afterwards, on the day appointed, no counsel having appeared for the state of New York, on the motion of the counsel for the state of New Jersey, for a subpoena to be served on the governor and attorney general of the state of New York; the court said: as no counsel appears to argue the motion on the part of the state of New York, and the precedent for granting it has been established, upon very grave and solemn argument, the court do not require an ex parte argument in favor of their authority to grant the subpoena, but will follow the precedent heretofore established. The state of New York will be at liberty to contest the proceeding at a future time in the course of the cause, if they shall choose so to do.

This letter was delivered to the attorney general of New York, then in the city of Washington, on the 13th of January 1830, and to the governor of the state on the 21st of January 1830.

The motion of the solicitors for the plaintiffs coming on for argument, on the 13th of February 1830; Mr Wirt said, that there are two questions to be presented: the first, whether there had been a sufficient service of the subpoena, supposing the court to have jurisdiction to issue it without an act of congress. The second was, whether such jurisdiction existed.

The first subpoena was served upon the governor and attorney general sixty days before the return day, the day of the service and of the return inclusive. Whether this was sufficient, according to the course of the court, he was desirous to know. The second subpoena was served on the governor only; the attorney general being absent. Was it necessary, to make the service good, that it should be served upon both? Mr Wirt referred to the rules of the court on this subject, particularly the rule adopted in August term 1796.

Mr Chief Justice MARSHALL said, that this was not like the case of several defendants, where a service on one might be good, though not on another. Here the service prescribed by the rule was to be upon the governor and upon the attorney general. A service on one was not sufficient to entitle the court to proceed against the state.

Mr Wirt then said, that he should be glad to have a day assigned to argue the point of jurisdiction, if the court chose, before another subpoena issued; as it might, if decided against the plaintiffs, prevent unnecessary expenses. He would be willing that it should be at so distant a day, as to enable the state of New York to appear and employ counsel. He mentioned three weeks from the day of the application.

Mr Chief Justice Marshall said, the court had no difficulty in assigning that day for the motion. It might be as well to give notice to the state of New York, as they might employ counsel in the interim. If, indeed, the argument should be merely ex parte, the court would not feel bound by its decision; if the state of New York afterward desired to have the question again argued(a).

Motion granted, and notice directed.

(a)

The following letters, addressed by the attorney general of New York to the clerk of the court, dated July 27, 1829, and to the chief justice and the associate justices, dated January 8, 1830, were read during the discussion.