Page:Harvard Law Review Volume 4.djvu/327

311 THE CASE OF CELPCKE v. DUBUQUE. 31I THE CASE OF GELPCKE v. DUBUQUE. [In assenting to a request to furnish the following paper for publication, the writer is aware that the form of it requires a word of explanation. In examining a disputed or obscure case it is sometimes found convenient, at Law Schools, to give the case out for argument at a Moot Court, as if upon a rehearing. Such a proceeding often involves anachronisms, e. g., in the citation of later cases; but it has its advantages. The case of Gelpcke v. Dubuque (i Wall. 175) was thus given out lately, here at Cambridge, and what follows was read, last June, as the opinion of the court in deciding that case. The writer is the more willing to have it printed, because, in sustaining the doctrine of the court, as an original question, he found himself arriving at an unexpected result, and also because the opinion here given makes one or two suggestions which appear to him important, and, at the same time, to be less insisted upon in the discussion of this case than they should be. Probably the general judgment of the legal profession would be that the opinion in Gelpcke v. Dubuque was a very inadequate one. Certainly it was a great while before the Supreme Court, in its steady adherence to the rule laid down in that case, succeeded in commending it to the approval of the profession. Among the many keen and able criticisms of this rule, reference may be made to those of Mr. Justice Holmes, in his notes to the twelfth edition of Kent's Commentaries; to an article attributed to Hon. John M. Reed, late Chief- Justice of Pennsylvania, in 9 American Law Review, 381; to Mr. G. W. Pepper's "Border Land of Federal and State Decisions; " and to Mr. W. M. Meigs's articles in 29 Central Law Journal, 465, 485, on certain questions growing out of what he designates as "the Federal doctrine of 'General Principles of Jurisprudence.'" — J. B. T.] THIS case comes up on error to the District Court of the United States for Iowa, where a demurrer to the defend- ant's answer was overruled and judgment given for the defendant. The suit was brought to recover the amount of coupons on certain bonds of the defendant city, issued under color of authority from an act of the Legislature of Iowa. It was brought in the United States court by the plaintiffs, who are not citizens of Iowa, under those provisions of the Constitution and laws of the United States, by which persons who are not citizens of a State where they wish to sue one who is such a citizen, are permitted to avoid the danger of a possible bias and prejudice in the State courts in favor of their own people, by proceeding in a national tribunal sitting within that State. The defence was that the bonds were unlawfully issued, in that the Constitution of Iowa forbids the Legislature to create debts exceeding one hundred thousand dollars; and it is alleged that at the time of the statute authorizing these bonds, the indebted- ness of the State and of the municipalities of the State exceeded