§ 604. State as Parens Patriae: Missouri v. Illinois.

In Missouri v. Illinois21 was raised the interesting point whether the general health and prosperity of its citizens give to a State, as such, an interest sufficiently direct to enable it to prosecute a suit for equitable relief in their behalf against another State. This case arose out of the construction, under the authority of the State of Illinois, by the Sanitary District of Chicago, of an artificial drainage canal by which large quantities of sewage were carried into and thus polluted the river of Mississippi which furnishes the water supply to inhabitants of the State of Missouri.

After an exhaustive examination of cases in which the court had entertained suits in which either plaintiff or both plaintiffs and defendants had been States, the court in their majority opinion say: "From the language, alone considered, it might be concluded that whenever and in all cases where one State may choose to make complaint against another, no matter whether the subject of complaint arises from the legislation of the defendant State, or from acts of its officers and agents, and no matter whether the nature of the injury complained of is to affect the property rights or the sovereign powers of the complaining State, or to affect the rights of its citizens, the jurisdiction of this court would attach." But after quoting from Marshall's opinion in Cohens v. Virginia,22 which would seem to sustain this broad construction of the court's jurisdiction, the opinion declares: "But it must be conceded that upon further consideration, in cases arising under different states of fact, the general language used in Cohens v. Virginia has been, to some extent, modified." As instances of this modification, the cases of New Hampshire v. Louisiana, Wisconsin v. Pelican Insurance Co., and Louisiana v. Texas are cited. But even as to these cases it is pointed out that the court did not decline jurisdiction, but, after inquiry into their nature and the character of the relief prayed for, held either that the plaintiff State was not entitled to, or at least that the Supreme Court could

21 180 U. S. 208; 21 Sup. Ct. Rep. 331; 45 L. ed. 497.

22 6 Wh. 264; 5 L. ed. 257.

"The cases

not grant this relief. The opinion then continues: cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objectionable, and, indeed, impossible, for the court to anticipate by definition what controversies can and what cannot be brought within the original jurisdiction of this court."

As to the case at bar, the court say: "An inspection of the bill discloses that the nature of the injury complained of is such that an adequate remedy can only be found in this court at the suit of the State of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant State. But it must surely be conceded that if the health. and comfort of the inhabitants of a State are threatened, a State is the proper party to represent and defend them. If Missouri were an independent and sovereign State all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the General Government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the constitutional provisions we are considering."

It will thus be seen that in this case the court held that, under certain circumstances, a State can invoke the original jurisdiction of the Supreme Court even though it has no direct pecuniary or proprietary interests involved, but is standing, as it were, as trustee, parens patriæ, or representative of a considerable portion of its citizens.23

23 Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice White, dissented. The dissenting opinion read:

"Controversies between the States of this Union are made justiciable by the Constitution because other modes of determining them were surrendered; and before that jurisdiction which is intended to supply the place of the

§ 605. Irrigation Works: Kansas v. Colorado.

In Kansas v. Colorado the question was raised whether one State has the right, by the construction of its irrigation works, seriously to deplete the water supply of a river which, rising in the defendant State, by nature flows into and through the plaintiff State. The case thus involved not only the technical question of the rights of riverain States to the water of rivers flowing into and through their respective territories, but whether the conflict of interests was one justiciable in the Supreme Court. The court means usually resorted to by independent sovereignties to terminate their differences can be invoked, it must appear that the States are in direct antagonism as States. Clearly this bill makes out no such state of case.

'If, however, on the case presented, it was competent for Missouri to implead the State of Illinois the only ground on which it can be rested is to be found in the allegation that its governor was about to authorize the water to be turned into the drainage channel.

46

'The sanitary district was created by an act of the general assembly of Illinois, and the only authority of the State having any control or supervision over the channel is that corporation. Any other control or supervision lies with the lawmaking power of the State of Illinois, and I cannot suppose that complainant seeks to coerce that. It is difficult to conceive what decree could be entered in this case which could bind the State of Illinois or control its action.

"The governor, it is true, was empowered by the act to authorize the water to be let into the channel on the receipt of a certificate, by commissioners appointed by him to inspect the work, that the channel was of the capacity and character required. This was done, and the water was let in on the day when the application was made to this court for leave to file the bill. The governor had discharged his duty, and no official act of Illinois, as such, remained to be performed.

66

'Assuming that a bill could be maintained against the sanitary district in a proper case, I cannot agree that the State of Illinois would be a necessary or proper party, or that this bill can be maintained against the corporation as the case stands.

"The act complained of is not a nuisance per se, and the injury alleged to be threatened is contingent. As the channel has been in operation for a year, it is probable that the supposed basis of complaint can now be tested. But it does not follow that the bill in its present shape should be retained. "In my opinion both the demurrers should be sustained, and the bill dismissed, without prejudice to a further application, as against the sanitary district, if authorized by the state of Missouri."

24 185 U. S. 125; 22 Sup. Ct. Rep. 552; 46 L. ed. 838.

held that the controversy was one between the States of which the Supreme Court could take original jurisdiction.

After a review of the authorities, the court show that the interests involved are substantial ones, ones which, as between. sovereign States, would furnish sufficient ground for controversy, and that, therefore, the individual States being unable to deal with one another, either by diplomatic negotiation, treaty, or war, the General Government must have the right to intervene. The opinion declares:

"The action complained of is state action, and not the action of state officers in abuse or excess of their powers.

"The State of Colorado contends that, as a sovereign and independent State, she is justified, if her geographical situation and material welfare demand it in her judgment, in consuming for beneficial purposes all the waters within her boundaries; and that, as the sources of the Arkansas river are in Colorado, she may absolutely and wholly deprive Kansas and her citizens of any use of or share in the waters of that river. She says that she occupies toward the State of Kansas the same position that foreign States occupy toward each other, although she admits that the Constitution does not contemplate that controversies between members of the United States may be settled by reprisal or force of arms, and that to secure the orderly adjustment of such differences power was lodged in this court to hear and determine them. The rule of decision, however, it is contended, is the rule which controls foreign and independent States in their relations to each other; that by the law of nations the primary and absolute right of a State is self-preservation; that the improvement of her revenues, arts, agriculture, and commerce are incontrovertible rights of sovereignty; that she has dominion over all things within her territory, including all bodies of water, standing or running, within her boundary lines; that the moral obligations of a State to observe the demands of comity cannot be made the subject of controversy between states; and that only those controversies are

justiciable in this court which, prior to the Union, would have been just cause for reprisal by the complaining State; and that, according to international law, reprisal can only be made when a positive wrong has been inflicted or rights stricti juris withheld. "But when one of our States complains of the infliction of such wrong or the deprivation of such rights by another State, how shall the existence of cause of complaint be ascertained, and be accommodated if well founded? The States of the Union cannot make war upon each other. They cannot 'grant letters of marque and reprisal.' They cannot make reprisal on each other by embargo. They cannot enter upon diplomatic relations, and make treaties.

"As Mr. Justice Baldwin remarked in Rhode Island v. Massachusetts: Bound hand and foot by the prohibitions of the Constitution, a complaining State can neither treat, agree, or fight with its adversary, without the consent of Congress. A resort to the 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 will be settled by compact.' 12 Pet. 657; 9 L. ed. 1233.

25

The demurrer to the bill, alleging want of jurisdiction, was, therefore, overruled, without prejudice to any question, and leave to answer granted.

Coming before the Supreme Court again upon its merits,26 the United States, on leave, filed a petition of intervention, asserting that the amount of the flow of water of the river in question was subject to federal authority and control, as incidental to its duty

25 For a discussion of the legal points involved in this case see Journal of Political Economy, XI, 273, article, "The Present Status of Rights to Interstate Streams;" and Columbia Law Review, II, 364, article, "Notes on Suits Between States."

26 Kansas v. Colorado, 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.