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§ 609. Suits Between the United States and a State of the

Union.

Article III does not in express terms grant jurisdiction in suits between a State and the United States, but in a number of instances suits brought by the United States against individual States of the Union have been entertained and decided by the Supreme Court.

In United States v. North Carolina46 an action of debt upon certain bonds issued by the defendant State was tried and determined upon its merits, judgment being rendered in favor of the defendant. No question of jurisdiction is discussed in the briefs of counsel or in the opinion of the court. In a later case, however, it was declared that "it did not escape the attention of the court, and the judgment would not have been rendered, except upon the theory, that this court has original jurisdiction of a suit brought by the United States against a State." 47

In United States v. Texas18 the United States again appeared as plaintiff in a suit against a State, this time with reference to a matter of boundary. Here the question of jurisdiction was raised and carefully considered. After calling attention to the fact that if a dispute as to boundary or other matters is not determinable in the Supreme Court, it is not determinable anywhere, and its settlement in case of continued disagreement must be by physical force, Justice Harlan, who delivered the opinion of the court, continued: "We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union, and between a State of the Union and foreign States, intended to exempt a State altogether from suit by the General Government. They could not have overlooked the possibility that controversies capable of judicial solution might arise between the United

46 136 U. S. 211; 10 Sup. Ct. Rep. 920; 34 L. ed. 336.

47 United States v. Texas, 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 285. Cf. Columbia Law Review, 11, 283, 364, "Notes on Suits Between States," by Carmen F. Randolph.

48 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 285.

States and some of the States, and that the permanence of the Union might be endangered if to some tribunal was not intrusted the power to determine them according to the recognized principles of law. And to what tribunal could a trust so momentous, be more appropriately committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestic tranquility, have constituted with authority to speak for all the people and all the State, upon questions before it to which the judicial power of the Nation extends? It would be difficult to suggest any reason why this court should have jurisdiction to determine questions of boundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State."

Only since 1902 may it be said to have been certainly determined that the Supreme Court will assume jurisdiction in suits brought by a State of the Union against the United States.

49

In Chisholm v. Georgia, Chief Justice Jay had indicated, obiter, that such a suit would not be entertained for the reason that the court would be without power to enforce its orders should judgment be rendered against the defendant. In Florida v. Georgia," however, the United States was allowed by the court to intervene in a suit between two States, but without becoming one of the parties to the record. And in Mississippi v. Johnson50 it was indicated that in a proper suit a bill might be filed by a State against the United States. Finally, in Minnesota v. Hitchcock,51 decided in 1902, jurisdiction was squarely asserted. In that case it was held that a suit by a State to enjoin the Secretary of the Interior of the United States from selling certain Indian lands, was a suit against the United States. "The legal title to these lands," said the court, "is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the

49 11 How. 293; 13 L. ed. 702.

60 4 Wall. 475; 18 L. ed. 437.

51 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954.

Government of its title, and vest it in the State. The United States is therefore the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter." By statute the United States had consented to be sued in matters relating to these Indian lands. Jurisdiction was assumed by the court, and the case decided upon its merits. "This is a controversy," said the court, "to which the United States may be regarded as a party. It is one, therefore, to which the judicial power of the United States extends. It is of course, under that clause [extending jurisdiction over controversies' to which the United States shall be a party'] a matter of indifference whether the United States is a party plaintiff or defendant. It could not fairly be adjudged that the judicial power of the United States extends to those cases in which the United States is a party plaintiff and does not extend to those cases in which it is a party defendant."

In this case counsel on neither side raised the question of the original jurisdiction of the court, being anxious, it would appear, that the case should be decided on its merits. This silence, however, Justice Brewer, who rendered the opinion of the court, declared was not sufficient in itself to give to the court such jurisdiction or to excuse the court from satisfying itself upon the point. 'The silence of counsel," said Justice Brewer, "does not waive the question, nor would the express consent of the parties give to this court a jurisdiction which was not warranted by the Constitution and laws. It is the duty of every court of its own motion to inquire into the matter. Consent may waive an

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objection so far as respects the person, but it cannot invest the court with a jurisdiction which it does not by law possess over the subject-matter."

§ 610. Suits Between a State and Foreign States or Their Citi

zens.

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As regards controversies "between a State, States, citizens, or subjects," it may be said that no such suits

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have ever been brought, and one can, therefore, only speculate as to the extent of federal judical power under this clause. We do know, however, by judicial determination, that neither a Territory;"52 an Indian tribe;53 nor the District of Columbia is a "State" within the meaning of the word as used in this clause of the Constitution.

Whether or not, if a suit were brought by a foreign State, it would be entertained by the Supreme Court, is very doubtful. A foreign State could not, of course, be compelled to appear as a party defendant in such a suit, and reason would, therefore, seem to suggest that it should not be permitted to appear as a party plaintiff unless, of course, the defendant State should give its consent. Madison took this view. "I do not conceive," he said, "that any controversy can ever be decided in these courts between an American State and a foreign State, without the consent of the parties. If they consent, provision is here made." 55 Story, in his Commentaries, takes the same view.56 On the other hand, we have in the opinion of the Supreme Court rendered in the case of Hans v. Louisiana57 a dictum approving the dissenting opinion of Justice Iredell in Chisholm v. Georgia, according to which it was declared not to have been the intention of the framers of the Constitution to create any new remedies unknown to the law. From this it would follow that the Supreme Court could not take jurisdiction of a case between a foreign State and a State of the Union, even with the consent of both parties.58

52 Smith v. United States, 1 Wash. Ter. 269.

53 Cherokee Nation v. Georgia, 5 Pet. 1; 8 L. ed. 25.

54 Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332.

55 Elliot's Debates, II, 391..

56 § 1699.

57 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.

58 Upon this point see article by Carmen F. Randolph in Columbia Law Review, II (1902), p. 283, entitled "Notes on Suits Between States."

CHAPTER LIV.

THE SUABILITY OF STATES.

§ 611. A Sovereign State May not Be Sued Without Its Con

sent.

That a sovereign is not subject to suit, without its consent, is a principle that has come down unchallenged since the time of Rome. It has found expression in the rule that "the sovereign can do no wrong" and has been adopted by the English Common Law as fully as, indeed, if anything, more fully than by the systems of jurisprudence founded upon the Civil Law.'

In Civil Law countries the State is often held liable in actions based upon the torts of its agents as well as in those of a contractural nature; whereas, in the United States, the individual whose rights have been violated by persons acting under State authority has no remedy against the State, except by express permission, and this permission has never been granted except with reference to contract claims. The injured individual has, however, right of action against the public officials by whose illegal acts he has been wronged, but these officials may be financially irresponsible, and thus the remedy, in fact, be of no value.

1 Where, however, provision has been made by a State for suits against itself based upon claims arising out of contract, the American courts have sometimes held that the taking of private property by a public official for the benefit of the State creates an implied contract for compensation, and have thereupon awarded damages. Thus in United States v. Great Falls Manufacturing Co. (112 U. S. 645; 5 Sup. Ct. Rep. 306; 28 L. ed. 846), the Supreme Court of the United States said: "We are of opinion that the United States, having by its agents, proceeding under the authority of an act of Congress, taken the property of the claimant for public use, is under an obligation, imposed by the Constitution, to make compensation. The law will imply a promise to make the required compensation, where property, to which the Government asserts no title, is taken pursuant to an act of Congress, as private property to be applied for public uses. Such an implication being consistent with the constitutional duty of the government as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the Court of Claims, of actions founded upon any contract, express or implied, with the Government of the United States."

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