a part of the public history of the United States of which we cannot be judicially ignorant, that at the adoption of the Constitution there were existing controversies between eleven States respecting their boundaries, which arose under their respective charters and had continued from the first settlement of the colonies." § 602. Boundary Disputes. The most important class of cases which have required the exercise of the authority granted by the Supreme Court under the present Constitution to adjudicate between States have been those relating to disputed boundaries. The first of these was that of New Jersey v. New York. In his opinion awarding the process of subpoena, Chief Justice Marshall, after reciting the constitutional grant of judicial power, and referring to previous suits to which States had been parties and which had been entertained by the Supreme Court, said: "It has then been settled by our predecessors on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress." The chief justice goes on to observe that should a defendant State, after due service of process, fail to appear (and, it is to be remarked that there is no means whereby a State may be compelled to appear in a suit brought against it) the complainant has the right to proceed ex parte to a final judgment. The second boundary dispute between States brought before the Supreme Court was between Rhode Island and Massachusetts." This suit was brought in 1832, but was not finally determined until 1838. In this case it was strenuously urged that the consent which the States, by the adoption of the Constitution, had given for the entertainment by the Supreme Court of suits between themselves extended only to matters ordinarily judicially cogniz 55 Fet. 284; 8 L. ed. 127. Rhode Island v. Massachusetts, 12 Pet. 657; 9 L. ed. 1233. able, and that it did not extend to suits of a political character, such as was a dispute regarding boundaries." Justice Baldwin rendered the prevailing opinion of the court. After calling attention to the rule that in the construction of the Constitution the state of things existing at the time of its framing and adoption was to be considered, he says: "With the full knowledge that there were at its adoption, not only existing controversies between two States singly, but between one State and two others, we find the words of the Constitution applicable to this state of things, controversies between two or more States.' It is not known that there were any such controversies then existing, other than those which relate to boundary, and it would be a most forced construction to hold that these were excluded from judicial cognizance, and that it was to be confined to controversies to arise prospectively on the other subjects. This becomes the more apparent when we consider the context and those parts of the Constitution which bear directly on the boundaries of States, by which it is evident that there remained no power in the contending States to settle a controverted boundary between themselves, as States competent to act by their own authority on the subjectmatter, or in any department of the government, if it was not in this." After calling attention to the fact that by the Constitution the States were expressly prohibited from entering into any agreement or compact between themselves, save with the consent of Congress, and that this clause had been already held by the States, by Congress, and by the court to include agreements with reference to boundaries, Justice Baldwin declares that every reason would lead to the same construction of the grant to the federal courts of judicial power. "Controversies abount boundary," he says, " are more serious in their consequences upon the contending States, and their relations to the Union and governments, than compacts and agreements. If the Constitution has given to no department the power to settle them they must remain interminable; and as 7 The Constitution does not in terms extend the federal judicial power to all cases between States. the large and powerful States can take possession to the extent of their claim, and the small and weak ones must acquiesce and submit to physical power, and the possession of the large States must consequently be peaceable and uninterrupted; prescription will be asserted, and whatever may be the right and justice of the controversy, there can be no remedy, though just rights may be violated. Bound hand and foot by prohibitions of the Constitution, a complaining State can neither treat, agree, nor fight with the adversary without the consent of Congress; a resort to judicial power is the only means left for legally adjusting, or persuading a State which has possession of disputed territory, to enter into an agreement or compact relating to a controverted boundary. Few, if any, will be made when it is left to the pleasure of the State in possession; but when it is known that some tribunal can decide on the right, it is most probable that controversies can be settled by compact. There can be but two tribunals under the Constitution who can act on the boundaries of States, the legislative or the judicial power; and the former is limited in express terms to assent or dissent, where a compact or agreement is referred to them by the States, and as the latter can be exercised only by this court, when a State is a party, the power is here or cannot exist." There then follows, in the opinion, a careful examination of English and earlier American precedents to show that boundary disputes were not, in their nature, outside the scope of judicial power. In Florida v. Georgia, Missouri v. Iowa,10 Florida v. Georgia,11 Alabama v. Georgia,12 Virginia v. West Virginia,13 South Carolina v. Georgia,11 Indiana v. Kentucky,15 Virginia v. Tennessee,16 Iowa 8 A dissenting opinion was filed by Justice Taney. 11 How. 293; 13 L. ed. 702. 10 7 How. 660; 12 L. ed. 861. 12 23 How. 505; 16 L. ed. 556. 14 93 U. S. 4; 23 L. ed. 782. 15 136 U. S. 479; 10 Sup. Ct. Rep. 1051; 34 L. ed. 329. 16 158 U. S. 267; 15 Sup. Ct. Rep. 818; 39 L. ed. 976. 17 v. Illinois, and Louisiana v. Mississippi, the Supreme Court has without objection assumed jurisdiction in cases involving disputes as to jurisdiction.19 In Virginia v. West Virginia the attempt was again made by the defendant State to raise the question. as to the judicial character of boundary controversies, but the court said, without dissent as to this point, speaking through Justice Miller: "This proposition cannot be sustained without reversing the settled course of decision in this court and overturning the principles on which several well considered cases have been decided. We consider the established doctrine of this court to be that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render affects the jurisdiction and sovereignty of the States which are parties to the proceedings.” § 603. Maladministration of Laws of a State to Injury of Citizens of Another State not Justiciable in a Suit Between the States. In Louisiana v. Texas20 complaint was made by the plaintiff State that the agents of the defendant State were administering certain quarantine powers in a manner that discriminated. against citizens of the plaintiff State. To this bill demurrer was filed upon the ground, inter alia, that the issues presented by the bill were not between the two States, but between certain citizens of the State of Louisiana, engaged in interstate commerce, and that the State, as a State, was not interested in a proprietary or other manner, and was not, therefore, entitled to bring suit. In the opinion of the court, rendered by Chief Justice Fuller, it was said: "In order to maintain jurisdic 17 202 U. S. 59; 22 Sup. Ct. Rep. 571; 50 L. ed. 934. 18 202 U. S. 1; 26 Sup. Ct. Rep. 408; 50 L. ed. 913. 19 The cases of Virginia v. West Virginia, South Carolina v. Georgia, and Virginia v. Tennessee arose out of compacts made between the States. 20 176 U. S. 1; 20 Sup. Ct. Rep. 251; 44 L. ed. 347. tion of this bill of complaint, as against the State of Texas, it must appear that the controversy to be determined is a controversy arising directly between the State of Louisiana and the State of Texas, and not a controversy in the vindication of the grievances of particular individuals." The complaint here is not that the laws of Texas in respect to quarantine are invalid, but that the health officer, by rules and regulations framed and put in force by him thereunder, places an embargo in fact on all interstate commerce between the State of Louisiana and the State of Texas, and that the governor permits these rules and regulations to stand and be enforced, although he has the power to modify or change them. The bill is not rested merely on the ground of the imposition of an embargo without regard to motive, but charges that the rules and regulations are more stringent than called for by the particular exigency, and are purposely framed with the view to benefit the State of Texas, and the city of Galveston in particular, at the expense of the State of Louisiana, and especially of the city of New Orleans. "But in order that a controversy between States, justiciable in this court, can be held to exist, something more must be put forward than that the citizens of one State are injured by the maladministration of the laws of another. The States cannot make war or enter into treaties, though they may, with the consent of Congress, make compacts and agreements. When there is no agreement whose breach might create it, a controversy between States does not arise unless the action complained of is state action, and acts of state officers in abuse or excess of their powers cannot be laid hold of as in themselves committing one State to a distinct collision with a sister State. "In our judgment this bill does not set up facts which show that the State of Texas has so authorized or confirmed the alleged action of her health officer as to make it her own, or from which it necessarily follows that the two States are in controversy within the meaning of the Constitution." |