New Jersey v. New York (28 U.S. 461)/Opinion of the Court

Utica, N. Y. July 27, 1829.

William Thomas Carroll, Esquire, Clerk of the Supreme Court of the United States.

SIR,

The governor and attorney general of the state of New York were recently served with the copy of a bill in equity, said to have been exhibited in the supreme court of the United States, by 'The State of New Jersey vs. The People of the State of In conformity with the direction of the court, notice of the day appointed for hearing the motion for a subpoena was forthwith served on the governor, and on the attorney general of the state of New York; and on the day assigned by the court, the 6th of March 1830, Mr Southard, attorney general of the state of New Jersey, and Mr Wirt, attended as counsel for the complainants. No counsel appeared for the state of New York.

The counsel for the state of New Jersey inquired of the court if they would hear an argument on the motion that a subpoena might issue to be served on the governor and attorney general of the state of New York, stating that they were willing and prepared to go into the same.

Mr Chief Justice MARSHALL said, as no one appears to argue the motion on the part of the state of New York, and the precedent for granting the process has been established upon very grave and solemn argument, in the case of Chisholm vs. The State of Georgia, 2 Dall. Rep. 419, and Grayson vs. The State of Virginia, 3 Dall. 320, the court do not think it proper to require an ex parte argument in favour of their authority to grant the subpoena, but will follow the precedent heretofore established.

The court are the more disposed to adopt this course, as the state of New York will still be at liberty to contest the proceeding at a future time in the course of the cause, if it shall choose to insist upon the objection.

On consideration of the motion made by Messrs Southard and Wirt, solicitors for the complainant in this cause, on Saturday the 13th day of February of the present term of this court, praying the court to postpone the consideration of this cause until Saturday the 6th of March of the present term of this court, with leave to the counsel for the said complainant on that day either to argue the point of jurisdiction, or to move the court for a decree in pursuance of the notice therein recited, or for new process in case the court should determine that the service of the process in this case was not sufficient to entitle the court to proceed against the state of New York, or for such other order as to the court may seem meet: it is considered by the court, that as no one appears to argue this motion on the part of the state of New York, and the precedent has been established in the case of Chisholm's Executors against the State of Georgia, the court do not consider it proper to require an ex parte argument, but will follow the precedent so established after grave and solemn argument. The court is the more disposed to adopt this course, as the state of New York will be at liberty to contest this proceeding at any time in the course of the cause. Whereupon it is ordered by the court that, as the service of the former process in this cause was defective, inasmuch as it was not served sixty days before the return day thereof, as required by the rules of this court, process of subpoena be, and the same is hereby awarded as prayed for by the complainant(b).

The president of the United States to the governor and the attorney general of the state of New York, greeting:-For certain causes offered before the supreme court of the United States, holding jurisdiction in equity, you are hereby commanded and strictly enjoined, that, laying all matters aside, and notwithstanding any excuse, you personally be and appear, on behalf of the people of the said state of New York, before the said supreme court, holding jurisdiction in equity, on the first Monday in August 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 the things which shall then and there be objected to the said state, and to do further and receive on behalf of the said state, what the said supreme court, holding jurisdiction in equity, shall have considered in this behalf; and this you may in no wise omit, under the penalty of five hundred dollars. Witness, the honourable John Marshall, Esquire, chief justice of the said supreme Court at Washington city, the second Monday in January, being the 11th day of said month, in the year of our Lord 1830, and of the independence of the United States the fifty-fourth.

WILLIAM THOMAS CARROLL, Clerk of the Supreme Court of the United States.