of legislating for the reclamation of its arid lands owned by it. This claim the court refused to recognize.'

27

As regards the jurisdiction of the court, the opinion declares that, generally speaking, "when the judicial power of the United States was vested in the Supreme and other courts, all the judicial power which the nation was capable of exercising was vested in those tribunals; and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties." Section

27 After reviewing the doctrines that had been put forward by counsel for the United States, that "all powers which are national in their scope must be vested in the Congress of the United States," the court declare:

66

At the time of the adoption of the Constitution, within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further action than that which might be taken by the legislature of the State in which any particular tract of such land was to be found; and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But, if no such power has been granted, none can be exercised. It does not follow from this that the National Government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of section 3 of article IV, heretofore quoted, or by virtue of the power vested in the National Government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen; and it would be strange if, in the absence of a definite grant of power, the National Government could enter the territory of the States along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation."

2 of Article III providing that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, etc., is declared to be "not a limitation nor an enumeration," but "a definite declaration - a provision that the judicial power shall extend to - - that is, shall include the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power."

This language seems very broad, and the author is not sure how comprehensive a doctrine is intended to be declared. It would seem, however, that the position is taken, that the Federal Government is equipped with judicial power extending wherever persons or property can be reached by the processes of its courts. It would appear, therefore, that the court based its jurisdiction not so much on the clause of the Constitution specifically extending its jurisdiction to controversies between two or more States, as on the general statement in Section 1 of Article III that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." "By this," the court declare, " is granted the entire judicial power of the nation." 28

Having held that the original jurisdiction of the Supreme Court extends to the controversy at issue between the States of Kansas and Colorado, the court turns to a consideration of the merits of that controversy and to the law applicable thereto. As to the law to be applied the court held itself to be bound by the law of neither State, but that, as it had been declared in the case when upon demurrer, sitting, as it were, as an international, as well as a domestic tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand." In short, in all cases where the common law of the States is not in agreement or adequate, the Supreme Court asserts its right to apply principles, drawn either from federal or interna

28 See, contra, Cohen v. Virginia, 6 Wh. 264; 5 L. ed. 257; Martin v. Hunter's Lessee, 1 Wh. 304; 4 L. ed. 97; Robertson v. Baldwin, 165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715.

tional law, and thus to build up what may properly be termed an interstate common law.29

§ 606. Justiciable Quasi-Sovereign Rights of the States.

The case of Georgia v. Tennessee Copper Co.,30 though not one between States, illustrates a further definition by the Supreme Court of what will constitute a justiciable interest upon the part of a State enabling it to seek relief by federal judicial process. Here an injunction was granted, at the suit of the State of Georgia, to enjoin the defendant company located in the State of Tennessee from discharging noxious gases from its works over the border of the State upon the territory of the plaintiff. In its opinion the court observe that it is proper to grant relief to a State, as a quasisovereign body, under circumstances which would not warrant it in a suit between private persons. In the case at bar, the court say: "The very elements that would be relied upon in a suit between fellow citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it, capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. . . . The caution with which demands of this sort, on the part of a State, for relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U. S. 496; 26 Sup. Ct. Rep. 268; 50 L. ed. 572. But it is plain that some such demands must be recognized if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court." The

29 Cf. Harvard Law Review, XXI, 132. See also Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. Rep. 618; 51 L. ed. 1038.

30 206 U. S. 230; 27 Sup. Ct. Rep. 618; 51 L. ed. 1038.

court, in its opinion, then goes on to make the following important observation: "Some peculiarities necessarily mark a suit of this kind. If the State has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be. It is not lightly to be required to give up quasi-sovereign rights for pay; and, apart from the difficulty of valuing such rights in money, if that be its choice, it may insist that an infraction of them shall be stopped. The States by entering the Union, did not sink to the position of private owners, subject to one system of private law."

§ 607. New Hampshire v. Louisiana and South Dakota v. North Carolina.

The interesting cases of New Hampshire v. Louisiana and South Dakota v. North Carolina32 will receive consideration in the chapter entitled The Suability of the States.

§ 608. Suits of States Against Individuals.

The question as to the character of interests requisite for the institution and maintenance of suits by the States of the Union has necessarily to be considered as well when individuals have been proceeded against as when States have been the parties defendant. The case of Georgia v. Tennessee Copper Co.33 has been spoken of in the preceding paragraphs. A few other cases will sufficiently indicate the character and extent of this branch of the federal judicial power.

In Pennsylvania v. Wheeling & B. Bridge Co.34 upon suit of the plaintiff State the defendant was, by decree, ordered to remove or elevate a bridge which, under color of a Virginia statute, it was constructing, on the ground that it obstructed navigation to and from the ports of Pennsylvania, and that the State, as a State, was interested directly in having the obstruction removed.35

31 108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 656. 32 192 U. S. 286; 24 Sup. Ct. Rep. 269; 48 L. ed. 448.

33 206 U. S. 230; 27 Sup. Ct. Rep. 618; 51 L. ed. 1038. 34 13 How. 518; 14 L. ed. 249.

35 Chief Justice Taney and Justice Daniel dissenting.

In Wisconsin v. Duluth36 suit was brought to enjoin the city of Duluth from maintaining a canal which drained water from the St. Louis river, and thus injured that stream as a channel of navigation to the detriment of the interests of the citizens of the plaintiff State. The court, however, found the United States had, as a matter of fact, assumed possession and control of the canal, and that this being so, the State of Wisconsin could not complain or be granted relief.

In Wisconsin v. Pelican Insurance Co.37 was raised the very important question as to the right of a State to sue citizens or corporations of other States to recover pecuniary penalties imposed by the criminal law of the plaintiff State.

This was an action brought upon a judgment recovered by the State of Wisconsin in one of her own courts against the Pelican Insurance Co., a Louisiana corporation, for penalties imposed by a statute of Wisconsin for not making returns to the insurance commissioner of the State as required by statute. The jurisdictional point was raised by the defendant that the judicial power of the United States, and the original jurisdiction of the Supreme Court did not extend to suits, prosecuted by a State, which, on the settled principles of public and international law, could not be entertained by the judiciary of another State, and that it was one of these settled principles of law that the courts of one country or State will not execute the penal laws of another. The Supreme Court sustained the point. After a review of authorities showing that the only cases in which the courts of the United States had entertained suits by a foreign State, were to enforce demands of a civil nature,38 the opinion declares: "Notwithstanding the comprehensive words of the Constitution, the mere fact that a State is the plaintiff is not a conclusive test that the controversy is one in which this court is authorized to grant relief against another State or her citizens. This court

36 96 U. S. 379; 24 L. ed. 668.

37 127 U. S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239.

38 The Sapphire, 11 Wall. 164; 20 L. ed. 127; King of Spain v. Oliver, 2 Wash. 429.