#### THE STATE OF NORTH CAROLINA v. THE TRUSTEES OF THE UNIVERSITY and C. DEWEY, Assignee, and others.

The Circuit Courts of the United States have not jurisdiction of a case either at Law or in Equity, in which a State is plaintiff against its own citizens. The Constitution of the United States does not confer such jurisdiction, nor is it conferred by any act of Congress. Such jurisdiction is not conferred upon the Circuit Court in this case by the Bankruptcy act of 1867, because there are other necessary parties than the Assignee in Bankruptcy, and without such parties the plaintiff could not sustain his suit in any Court.

Brooks, J.,

delivered the' opinion of the Court. The attention of the Court has not been invited to the question of j urisdietion in this case, by either the complainant or respondent, in their arguments. Yet, that is a question to be considered in the opinion of this Court, and the first properly demanding attention.

All the authority vested in the Courts of the United States to hear and determine causes, arises under the provisions of the Constitution of the United States, or acts of Congress.

By the provisions of the Constitution the Supreme Court of the United States is established, and its jurisdiction prescribed directly; and it is further provided that Congress shall have power to create or establish inferior Courts.

Then, we think that it necessarily follows that Congress has the power to prescribe the jurisdiction of such Courts. We *715are sustained in this view by the opinion in the case of Osborne v. The United States Bank, 9th Wheaton, 738, and Sheldon v. Gill, 8th Howard, 448.

The second section of the third article of the Constitution relates to the subjects or classes of cases declared to be within the jurisdiction or power of the United States Courts, and is ■as follows:

> “ The Judicial power shall extend to all cases in law and equity arising under this Constitution; the laws oi the United States and treaties made, or which shall be made under their authority; to all cases, affecting embassadors; other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State ; between citizens ■of different States; between citizens of the same State claiming lands under grants of different States,” and lastly, “ between a State or the citizens thereof and foreign States, citizens or subj ects.” ■ ’

If the framers of our Constitution had proceeded no further, It might be contended with more reason that this suit, as instituted, comes within the jurisdiction intended to be conferred upon the Circuit Courts. But, as if to leave no doubt upon the subject, they proceed in the second clause of the second section of the third article to enumerate the classes of cases over which the Supreme Court shall have original jurisdiction, and with these we find all cases affecting embassadors, other public ministers and consuls, and tho.se in which a State shall be a party; and it is further provided, that as to all other subjects included within the jurisdiction prescribed — the Supreme Court shall have appellate jurisdiction.

It may be said that though original jurisdiction is .by this provision of the ■ Constitution conferred upon the Supreme Court, it is not exclusive, but only concurrent with some other tribunal.

*716We think that a fair construction of the language of the-Constitution excludes such a conclusion, and we are happily sustained in this opinion by the opinion of the Court in the-case of Gale v. Babcock, 4 Wash. Circuit Court Rep. 199.

It will be seen that in this case it is decided that the Circuit Courts have no jurisdiction of a cause in which a State is a party.

If more authority should be desired upon this point, we refer to the case of Osborne v. The United States Bank, 9th Wheat. 820, in which it is declared — that in such cases in which original jurisdiction is conferred upon the Supreme Court, founded on the character of the parties, the judicial power of the United States cannot be exercised in its appellate form.

In the case before ns, the State of North Carolina is complainant and the only complainant, and it is the character of that party that brings the case within the original jurisdiction prescribed for the Supreme Court — and consequently, according to the opinion of the Court in the case last cited, is excluded from the appellate j urisdiction of that Court.

We hold that it was not intended by any provision of the Constitution or the laws to confer jurisdiction on this Court in any case involving many thousands of dollars, (as in this case)/ without the right of appeal in the event either party should be dissatisfied with the decision of this Court.

Again: In the cases of Martin v. Hunter's Lessees, 1 Wheat. 337; Cohen v. Virginia, 6 Wheat. 392, it is decided that in such cases' as draw in question the laws, Constitution, or treaties of the United States, though a State may be a party, the jurisdiction of the Supreme Court is appellate; for in such a case the jurisdiction is founded, not upon the character of the. parties, but upon the nature of the controversy. Such cases may be taken by appeal, or writ of error, from the highest, judicial tribunal of a State to the Supreme Court of the United States.

The great American Constitutional Judge, in delivering the *717opinion of the Supreme Court of the United States in Cohen v. The State of Virginia, before referred to,' uses this language : “It has been also argued as an additional obj ection to the jurisdiction of the Court, that cases between a State and one of its own citizens do not come within the general scope of the Constitution, and were obviously never intended to be made cognizable in the Federal Courts. The State tribunals might be suspected of partiality in cases between itself, or its citizens ■and aliens, or the citizens of another State; but not in pro•ceedings by a State against its own citizens. That jealousy which might exist in the first case could not exist in the last, and therefore the judicial power is not extended to the last. This is very true (says this learned Judge) so far as the jurisdiction depends upon the character of the parties.

“If the jurisdiction depended entirely upon the character of the parties, and was not given where the parties had not an original right to come into Court, that part of' the second section of the third article which extends the judicial power to .all cases arising under the Constitution and the laws of the United States would be mere surplusage. It may be true that the partiality of the State tribunals, m ordinary controversies between a State and its citizens was not apprehended, and therefore the judicial power of the Union was not extended to such eases.”

The ground, as it is seen, that the jurisdiction of this Court is claimed in this case depends upon the character of the parties, and not the character of the subject in controversy.

All we have said, it will be observed, relates more particularly to the provisions of the Constitution, and in regard to the prescribing and the distribution of the judicial power of the United States.

The Act of 1789, section 24, is the first whereby Congress undertook to prescribe the jurisdiction of the Circuit Courts, and we find by the 17th section of that Act that such Courts .are vested with original cognizance concurrent with the Courts *718of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds a certain sum stated, and the United States are plaintiff or petitioner, or an alien is a party, or the suit is between a citizen of the State where a suit is brought and a citizen of another State.

It is quite clear, we think, that the provisions of this act do not embrace a case in which a State is a party.

This question, however, was raised soon after the passage of the act in the case of Gale v. Babcock, before referred to, and in this case it was decided that the Circuit Courts had no jurisdiction between a State and its citizen, or citizens of othex; States.

It was at one time supposed that the Constitution gave a broader power to the Courts. But it has been' long since settled that the civil jurisdiction of the Circuit Courts is governed by the acts of Congress. Turner v. Bank of North Carolina, 4 Dall. 10; McIntyre v. Wood, 7 Cr. 506; Kendal v. United States, 12 Peterson 616; Cary v. Curtis, 3 How. 245.

But the power to entertain this suit is claimed by counsel for this Court under the provisions of the bankrupt act of 1867. After a careful examination of the provisions of that act, we are of opinion that it was not designed to confei’, and does not in fact confer such power.

If we could believe that the original jurisdiction conferred by that act upon the Circuit Courts was as full, or equal in all respects to that conferred upon the District Courts, we could not regard it as intending to produce so inevitable a. conflict with the provisions of the Constitution before referred to, limiting and restricting, according to our construction, the oxdginal jurisdiction in cases in which States are parties to the Supreme Court.

We hold that no such j urisdiction as that contended for in this case was intended to be conferred upon this Court; and further, if it was clearly otherwise, that any attempt to do so on the part of Congress would be ineffectual; for, as has been *719before seen, the Constitution having itself provided that the jurisdiction in such cases should be original in the Supreme Court, it must be regarded as exclusive of the other Courts of the United States — as much so as if the term excl/uswe original jwrisdiotion had been employed. And this appears to us to be the view entertained by the Court in the case of Osborne v. The United States Bank, before cited.

It has been suggested that there is a greater necessity for the exercise of jurisdiction by this Court in this case, because, as is insisted by the bankrupt law, the jurisdiction conferred upon the District and Circuit Courts of the United States is exclusive, and that no suit by or against an assignee can be maintained in the State Courts.

We agree that the only jurisdiction actually conferred by that act is with these Courts; but it does not follow that an assignee may not sue or be sued in the State Courts, and we think that an assignee may sue or be sued in the State Courts.

If we entertained the opinion that all controversies respecting a bankrupt’s estate could only be heard and determined in the District or Circuit Courts of the United States, we confess that we would express the view we entertain with much more hesitation than we now feel.

Let the bill be dismissed.