Opinion
Department 2. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.
COUNSEL
Orestes J. Orena (William Rix, of counsel), for appellant.
I. N. Thorne, for respondent.
OPINION
McFARLAND, J.
The only question presented in this case is whether the superior court had jurisdiction in a civil case over the person of the defendant, who is the consul general of Chili for the United States, resident at San Francisco, Cal. The court below held that it had no jurisdiction, and the plaintiff appeals from the judgment. The question was determined adversely to the contention of appellant by this court in the case of Miller v. Van Loben Sels, 66 Cal. 341, 5 P. 512. Appellant contends that said case should not be considered as conclusive authority upon the question, because at the time it was decided the ninth section of the judiciary act of 1789 expressly provided that the jurisdiction of the United States over consuls was exclusive, and that since then, on February 18, 1875, the congress of the United States, by an act entitled ‘An act to correct errors, etc., in the Revised Statutes,’ repealed the said section of the said act of 1789, and that the court in said case of Miller v. Van Loben Sels assumed that said section 9 was still in existence, and that its attention was not called to the said repeal of said section. The attention of the court in that case was called to such repeal by a petition for rehearing, but it is contended by appellant that the court must be deemed to have not considered a point presented for the first time in such petition. Whether that decision should or should not be considered as final authority upon the question, we are satisfied that the rule there declared was correct, even in view of the fact that said section of the act of 1789 has [45 P. 677] been repealed. By section 2 of article 3 of the constitution of the United States it is provided that the judicial power of the United States shall extend ‘to all cases affecting ambassadors, other public ministers and consuls.’ By this provision consuls are put on the same footing with ambassadors. Under our system the government of the United States is the only sovereign having relations with foreign countries under the law of nations, and all dealings with the representatives of foreign nations must be by the courts or other agencies of the government which is alone sovereign in that regard. It is the right and privilege of the foreign government to be thus treated. In Davis v. Packard, 7 Pet. 276, it was contended that Davis, who was consul general of the king of Saxony, had waived his privilege by not setting it up at the proper time in the court below. The supreme court of the United States, however, did not sustain this contention, and said: ‘If this was to be viewed merely as a personal privilege, there might be grounds for such conclusion, but it cannot be so considered. It is the privilege of the country or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations, and our constitution and law seem to put consuls on the same footing in this respect. If the privilege or exemption was merely personal, it can hardly be supposed that it would have been thought a matter sufficiently important to require a special provision in the constitution and laws of the United States. Higher considerations of public policy doubtless led to the provision. It was deemed fit and proper that the courts of the government with which rested the regulation of all foreign intercourse should have cognizance of suits against the representatives of such foreign governments.’ We think, therefore, that under the said provision of the constitution of the United States there was no jurisdiction of the case at bar in the superior court of this state. The judgment is affirmed.
We concur: HENSHAW, J.; TEMPLE, J.