The bill of complaint on the part of Louisiana against Texas,
alleged that the State of Texas had granted to its Governor and its
Health Officer extensive powers over the establishment and
maintenance of quarantines over infectious or contagious diseases;
that this power had been exercised in a way and with a purpose to
build up and benefit the commerce of cities in Texas which were
rivals of New Orleans, and it prayed for a decree that
"neither the State of Texas, nor her Governor, nor her Health
Officer, has the right, under the cover of an exercise of police or
quarantine powers, to declare and enforce against interstate
commerce, between the State of Louisiana, or any part thereof, and
the State of Texas, an absolute embargo prohibiting the movement
and conduct of said commerce, or to make, declare and enforce
against places infected with yellow fever or other infectious
diseases in the State of Louisiana discriminative quarantine rules
or regulations, affecting interstate commerce between the
Louisiana, or any part thereof, and the State of Texas, different
from and more burdensome than the quarantine rules and regulations
affecting interstate or foreign commerce between the State of Texas
and other states and countries infected with yellow fever and other
infectious diseases,"
and the bill asked for an injunction, restraining the Texas
officials from enforcing the Texas laws in the manner in which they
were enforced.
Held:
Page 176 U. S. 2
(1) That in order to maintain jurisdiction of the bill, it must
appear that the controversy to be determined was a controversy
arising directly between the State of Louisiana and the State of
Texas, and not a controversy in vindication of the grievances of
particular individuals.
(2) That the gravamen of this bill was not a special and
peculiar injury such as would sustain an action by a private
person, but that the State of Louisiana presented herself in the
attitude of
parens patriae, trustee, guardian or
representative of all her citizens.
(3) That the 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.
(4) That the Court was unable to hold that the bill could be
maintained as presenting a case of controversy between a state and
citizens of another state.
(5) That the bill could not be maintained as against the health
officer alone, on the theory that his conduct was in violation of
or in excess of a valid law of the state.
MR. JUSTICE WHITE concurred in the result. MR. JUSTICE HARLAN
concurred in the result, but dissented from some of the
propositions contained in the opinion of the Court, as did also MR.
JUSTICE BROWN.
The State of Louisiana, by her Governor, applied to this Court
for leave to file a bill of complaint against the State of Texas,
her Governor, and her health officer. Argument was had on
objections to granting leave, but, it appearing to the Court the
better course in this instance, leave was granted and the bill
filed, whereupon defendants demurred, and the cause was submitted
on the oral argument already had and printed briefs.
The bill alleged:
"That the City of New Orleans, one of the great commercial
cities of this Republic and the second export city of this
continent, containing about 275,000 inhabitants, many of whom are
largely engaged in interstate commerce with the inhabitants of the
State of Texas, is situated within the territory of your orator;
that said city contains nearly one-fourth of all the inhabitants of
your orator, and the assessed values of her property are more than
one-half the assessed values of the whole state, and she
contributes by taxes and licenses more than five-eighths of your
orator's revenue. "
Page 176 U. S. 3
"That two lines of railroad, the Southern Pacific and the Texas
& Pacific, run directly from the City of New Orleans through
the States of Louisiana and Texas, and into the states and
territories of the United States and of Mexico, beyond the State of
Texas, with the inhabitants of which states and territories the
citizens of New Orleans are also engaged in interstate and foreign
commerce, such commerce largely following the lines of said
railroads and their many connections."
"That the State of Texas, by her Revised Civil Statutes, adopted
at the regular session of the twenty-fourth legislature, held in
the year 1895, being Title XCII thereof, has granted to her
Governor and her health officer extensive powers over the
establishment and maintenance of quarantines against infectious or
contagious diseases, with authority to make rules and regulations
for the detention of vessels, persons, and property coming into the
state from places infected, or deemed to be infected, with such
diseases."
"That Joseph D. Sayers, a citizen of the State of Texas, is now,
and has been for some time past, Governor of said state."
"That William F. Blunt, a citizen of the State of Texas, is now,
and has been for some time past, the state health officer of the
State of Texas."
"That the ports of said state, situated on the Gulf coast, are
engaged in commerce with the ports of Mexico, Central and South
America, and Cuba, known to be permanently infected with yellow
fever; said commerce being largely competitive with similar
commerce coming to the port of New Orleans,"
"That on the 1st day of March, 1899, Joseph D. Sayers, Governor
of the State of Texas, under the provisions of the said laws,
issued his proclamation establishing quarantine on the Gulf coast
and Rio Grande border against all places, persons, or things coming
from places infected by yellow fever, etc., a copy of which
proclamation is hereto annexed and made part of this bill and
marked Exhibit 'A.'"
"That the rules and regulations established in said quarantine
proclamation permit trade and commerce between such infected ports
and the State of Texas, and provide for the
Page 176 U. S. 4
fumigation and reasonable detention of ships and cargoes from
infected ports."
"That on or about the 31st day of August, 1899, a case of yellow
fever was officially declared to exist in the City of New Orleans,
in a part of the city several miles away from the commercial part
thereof, and from that time to this, several other sporadic cases
have been reported in similar parts of the city."
"That as soon as said first case was reported, the said William
F. Blunt, Health Officer of the State of Texas, claiming to act
under the provisions of Article 4324 of the Revised Civil Statutes,
under the pretense of establishing a quarantine, placed an embargo
on all interstate commerce between the City of New Orleans and the
State of Texas, absolutely prohibiting all common carriers entering
the State of Texas from bringing into the state any freight or
passengers, or even the mails of the United States, coming from the
City of New Orleans, and to enforce these orders he immediately
placed, and now maintains, armed guards, acting under the authority
of the State of Texas, on all the lines of travel from the State of
Louisiana into the State of Texas, with instructions to enforce the
embargo declared by him
vi et armis, which instructions
these armed guards are carrying out to the letter; that about six
days later, he modified his order so as to permit the government of
the United States to carry and deliver the mails, and also modified
his order so as to permit persons and their baggage to enter the
State of Texas, after ten days' detention at the quarantine
detention camps established by him, and after fumigation of their
baggage; but that he now maintains, and announces his intention to
maintain indefinitely his absolute prohibition of all interstate
commerce between the City of New Orleans and the State of Texas;
that he has refused to permit the introduction of sulphuric acid in
iron drums, unpacked hardware, machinery, and other articles coming
from localities in the City of New Orleans far removed from the
places where the sporadic cases of fever have occurred, and which
by their nature are concededly incapable of conveying infection;
that he had established
Page 176 U. S. 5
no system of classification or inspection of the articles of
interstate commerce coming from the City of New Orleans, to
determine whether they are or may be infected, or whether they are
capable or not of conveying infection, no period of detention for
such articles, no place or method of disinfection thereof, his only
method being absolute and unconditional prohibition of such
interstate commerce; that it is a notorious fact, and well known to
said Blunt, that all of the interstate commerce between New Orleans
and Texas is carried on by railroads, and none by water
communication between the port of New Orleans and the Texas ports,
and that the effect of his orders is to destroy all such commerce,
to take away the trade of the merchants and businessmen of the City
of New Orleans, and to transfer that trade to rival business cities
in the State of Texas."
"That while Joseph D. Sayers, Governor of the State of Texas,
has issued no formal proclamation of quarantine, as provided by
law, to-wit, Article 4324 of the Revised Civil Statutes, defining
the rules and regulations of such quarantine so declared by said
Blunt, your orator charges that the rules and regulations
established by said Blunt have the full force of law until modified
or changed by the proclamation of the Governor, and that the
Governor knows all these facts, and approves and adopts the same,
and permits these rules and regulations to stand and to be executed
in full force and effect as established by said Blunt."
"Now, your orator recognizes the right and power of the State of
Texas and the public officials thereof to take prudent and
reasonable measures to protect the people of said state from
infection, to establish quarantine and reasonable inspection laws,
but your orator denies that said state, or its officials acting
under its laws, under the cover of exercising its police powers,
can prohibit or so burden interstate commerce as to make such
commerce impossible."
"Your orator avers that it is a recognized and acknowledged fact
by all the sanitarians and health officials of the various states
exposed to infection by yellow fever, and by the health officials
of the United States, and by all scientific
Page 176 U. S. 6
students of infection and sanitation, that commerce can be
conducted between infected and noninfected points, with small
inconvenience and without any danger of infection by classifying
the articles of commerce and by pursuing certain well recognized
rules and precautions with reference to the articles and vehicles
of commerce."
"That after the yellow fever outbreak of 1897, a quarantine
convention was held in Mobile, Ala., and, on the advice of that
convention, a conference of the health officials of Virginia, South
Carolina, Georgia, Florida, Alabama, Mississippi, Missouri, and the
United States Marine Hospital Service met at Atlanta, Ga., and
formulated such regulations, which were adopted by the boards of
health of all said states, and, as subsequently revised, are now in
full force and effect between the said states; that additional
experience having been gained by the reappearance of yellow fever
in the fall of 1898, a revising conference was held in the City of
New Orleans on February 9, 1899, at which conference the Atlanta
regulations were in some respects modified. A copy of the said
regulations, original and as modified, are hereto annexed, and made
part of this bill and marked Exhibit 'B.'"
"Your orator avers that said William F. Blunt, or his
predecessor in office, was Health Officer of the State of Texas at
the time these conferences were held, that he and his predecessor
in office refused or neglected to attend them in person or by
representative, and he has continually refused to adopt the Atlanta
regulations, or any of them, or any regulations similar to them,
and insists, as his predecessor in office insisted, upon being a
law to himself, and upon using no means of dealing with yellow
fever infection in the City of New Orleans, or elsewhere in the
State of Louisiana, real or imaginary, except an absolute embargo
upon interstate commerce, to be established at his pleasure and to
last as long as he chooses to maintain it."
"That in pursuance of this policy, in the year 1897, his
predecessor in office established a similar embargo on interstate
commerce between New Orleans and other points in Louisiana,
supposed by him to be infected, and the State of
Page 176 U. S. 7
Texas, on the 10th day of September, and refused to remove or to
modify said embargo until the ___ day of December, 1897, during
which period he even refused to permit railroad cars that had been
in the City of New Orleans to enter or even pass through the State
of Texas on their way to the countries, states, and territories
beyond."
"That in pursuance of the same policy, in the year 1898, the
said William F. Blunt, Health Officer, and the Governor of the
State of Texas, established a similar embargo on all interstate
commerce between the State of Louisiana and the State of Texas on
the 18th day of September, and refused to remove or modify the same
until the 1st day of November."
"That in pursuance of the same policy, the said William F.
Blunt, because a single case of yellow fever was declared in the
City of New Orleans, did on May 30, 1899, establish a similar
embargo on interstate commerce between the City of New Orleans and
the State of Texas, which he refused to modify or to remove until
June 9, 1899, and then only under great pressure, although he was
advised on June 2, 1899, by the representatives of the health
authorities of the States of Alabama and Mississippi, of the United
States Marine Hospital Service, and of the Louisiana State board of
health, who had been for some days in the City of New Orleans
making a personal inspection of her sanitary and health conditions,
that they deemed it 'unnecessary and unwise for any state or city
to quarantine against New Orleans under present condition.'"
"Your orator avers that the State of Texas, her Governor, and
her Health Officer, as shown by the rules and regulations
established by them in the proclamation aforesaid for the
quarantine on the Gulf coast, admit the truthfulness of the claim
of your orator that commerce can be carried on with infected places
and ports, under reasonable rules and regulations as to inspection,
fumigation, and detention, and admit that there are articles of
commerce incapable of conveying infection, and actually permit such
commerce in all articles to be so carried on to the advantage and
benefit of the commerce of the ports of Texas and her merchants
engaged in commerce in said ports. "
Page 176 U. S. 8
"Your orator avers that the effect of the embargoes imposed by
the State of Texas upon the commerce of the City of New Orleans
with Texas is to build up and benefit the commerce of the City of
Galveston, in Texas, and the commerce of other cities in Texas, all
of which are commercial rivals of the City of New Orleans for the
large commerce of the State of Texas and the adjoining states and
territories."
"That prior to the embargoes aforesaid of the years 1897 and
1898, the City of New Orleans was the greatest cotton exporting
port of the United States, and a very large portion of the cotton
grown in Texas was exported through the port of New Orleans; for
instance, for the season of 1894-5, more than 31 percent thereof;
for the season 1895-6, more than 30 percent thereof; for the season
1896-7, 25 percent thereof."
"That as consequence of the two trade embargoes aforesaid, the
percentage of the Texas cotton crop exported through the port of
New Orleans for the season of 1897-8 was only 19 percent, and for
the season of 1898-9 was only 15 percent, and for the season of
1898-9, ending September 1, 1899, the City of Galveston handled
more export cotton than the City of New Orleans."
"That the effect of said embargoes is all the more disastrous to
the commerce of your orator and of her cities and towns because
declared and made operative during the months of September,
October, November, and the early part of December, the period of
the greatest activity and the largest movement of commerce among
the states of the south, and between the State of Louisiana, the
City of New Orleans, and the State of Texas."
"Now your orator avers that, in view of the unreasonable, harsh,
prohibitive, and discriminating character of the pretended
quarantines declared and maintained by the State of Texas and her
health officer against the City of New Orleans and other localities
in the State of Louisiana, is nothing less than a commercial war
declared against your orator, her ports, cities, and citizens; not
for the
bona fide purpose of protecting the health of the
State of Texas, but for the purpose of increasing
Page 176 U. S. 9
the trade and commerce of the State of Texas and of her ports,
cities, and citizens, to the great damage and injury of your orator
and her citizens; that such embargoes on interstate commerce injure
and impoverish your orator's citizens, reduce the value of her
taxable property, diminish her revenues, retard immigration, reduce
the value of her public lands, and deprive her citizens of their
rights and privileges as citizens of the United States."
"Your orator avers that the embargo upon interstate commerce
between the City of New Orleans, in the State of Louisiana, and the
State of Texas, established by said Blunt on or about the 1st day
of September, 1899, and now maintained by him and the other
officials of the State of Texas, will be continued by them for an
indefinite period, to the great damage and injury of your orator's
ports, commerce, and revenues, and to the commerce of her citizens
and to the rights of her citizens under the Constitution of the
United States, unless they be enjoined and restrained by order of
this Court."
"Your orator avers that, from the past conduct of the State of
Texas and of her governors and health officers, your orator is
justified in averring and charging, and does aver and charge, that
it is the fixed purpose and intention of the said state, and of her
governors and health officers, whenever in the future any case of
yellow fever, or other infectious disease, occurs in any parish,
city, or town within your orator's borders, to immediately declare,
set up, and maintain an absolute prohibition of interstate commerce
between said supposed infected parish, city, or town, and the State
of Texas, and to keep the same in force during the pleasure of such
officials, or to make and establish discriminative rules and
regulations covering quarantines on such interstate commerce
different from and more burdensome than the rules and regulations
concerning quarantines on interstate commerce with other states and
foreign commerce with countries also infected with yellow fever, or
other infectious diseases, and thereby to injure and oppress your
orator and her citizens."
"Now your orator avers that the absolute prohibition
Page 176 U. S. 10
against the movement and operation of interstate commerce
between the City of New Orleans and the inhabitants thereof and the
State of Texas and the inhabitants thereof, established by said
William F. Blunt, Health Officer of the State of Texas, and now
maintained and enforced by him, the Governor, and the other
officials of the State of Texas, is in direct contravention of the
provisions of the Constitution of the United States, and
particularly of that clause thereof which grants to the Congress
power to regulate commerce with foreign nations, among the several
states, and with the Indian tribes, and is null, void, and of no
effect, and the continuance thereof ought to be restrained by the
order of this honorable court."
"Your orator further avers that the various cities, counties,
and towns in the State of Texas have authority under the statutes
aforesaid to establish quarantines, but all such quarantines are by
statute subordinate to, subject to, and regulated by the rules and
regulations prescribed by the Governor and the State Health
Officer, and that therefore all such quarantines are dirigible and
controllable by the Governor and the Health Officer of Texas."
"Your orator is informed and believes, and so charges, that it
is the intention of certain counties, cities, and towns along the
lines of the railroads aforesaid, in case your honors should
restrain the operation of the embargo established as aforesaid by
William F. Blunt, State Health Officer, to severally establish the
same embargo on their own account, and to prevent the passage of
trains on said railroads carrying interstate commerce from the City
of New Orleans through them to other parts of the State of Texas
and to other states, and to so hinder, obstruct, and delay the
transportation of said commerce along the lines of railroad running
through their limits as to render its conduct impossible; that in
case it should be considered that the public authorities of such
counties, towns, and cities are not personally bound by any order
your honors may issue in this cause, and in case they should
attempt to carry out any such illegal plan, your orator reserves
the right hereafter to make such officials parties to this bill, so
as to subject them to the control of the court. "
Page 176 U. S. 11
The bill then prayed for answers under oath; that the Court
decree
"that neither the State of Texas nor her Governor nor her Health
Officer has the right, under the cover of an exercise of police or
quarantine powers, to declare and enforce against interstate
commerce between the State of Louisiana, or any part thereof, and
the State of Texas, an absolute embargo, prohibiting the movement
and conduct of said commerce, or to make, declare, and enforce
against places infected with yellow fever or other infectious
diseases in the State of Louisiana discriminative quarantine rules
and regulations affecting interstate commerce between the State of
Louisiana, or any part thereof, and the State of Texas, different
from and more burdensome than the quarantine rules and regulations
affecting interstate or foreign commerce between the State of Texas
and other states and countries infected with yellow fever or other
infectious diseases, and that the embargo and prohibition upon
interstate commerce between the City of New Orleans and the State
of Texas, declared by William F. Blunt, Health Officer of the State
of Texas, on or about the 1st day of September, 1899, and now
maintained and enforced by the State of Texas under the guise of a
quarantine against yellow fever, is contrary to the Constitution of
the United States, null, void, and of no effect and validity;"
that a preliminary injunction be issued
"prohibiting, enjoining, and restraining the State of Texas and
all of her officers and public officials, and prohibiting,
enjoining, and restraining Joseph D. Sayers, Governor of the State
of Texas, and William F. Blunt, Health Officer of the State of
Texas, their successors in office, and all of their subordinates,
assistants, agents, and employees, from establishing, maintaining,
and enforcing, or attempting to establish, maintain, and enforce,
under the guise of a quarantine against yellow fever, any embargo
or absolute prohibition upon interstate commerce between the State
of Louisiana, or any part thereof, and the State of Texas, or from
establishing, maintaining, and enforcing, or attempting to
establish, maintain, and enforce against interstate commerce
between the State of Louisiana, or any part thereof, and the State
of Texas, discriminative and burdensome quarantine
Page 176 U. S. 12
regulations other and different from the regulations established
by such authorities against foreign and interstate commerce between
the State of Texas and other countries and states infected with
yellow fever, or other infectious diseases, and particularly
enjoining, prohibiting, and restraining them, and each of them,
from maintaining or enforcing, directly or indirectly, the
prohibitory embargo on interstate commerce established against the
City of New Orleans on or about the 1st day of September, 1899,
under the guise and pretense of a quarantine regulation,"
and that such injunction be made perpetual on final hearing, for
costs, and for general relief.
The demurrer assigned the following causes:
"First. That this Court has no jurisdiction of either the
parties to or of the subject matter of this suit, because it
appears from the face of said bill that the matters complained of
do not constitute, within the meaning of the Constitution of the
United States, any controversy between the states of Louisiana and
Texas."
"Second. Because the allegations of said bill show that the only
issues presented by said bill arise between the State of Texas, or
her officers, and certain persons in the City of New Orleans, in
the State of Louisiana, who are engaged in interstate commerce, and
which do not in any manner concern the State of Louisiana as a
corporate body or state."
"Third. Because said bill shows upon its face that this suit is
in reality for and on behalf of certain individuals engaged in
interstate commerce, and while the suit is attempted to be
prosecuted for and in the name of the State of Louisiana, said
state is in effect loaning its name to said individuals, and is
only a nominal party, the real parties at interest being said
individuals in the said City of New Orleans, who are engaged in
interstate commerce."
"Fourth. Because it appears from the face of said bill that the
State of Louisiana, in her right of sovereignty, is seeking to
maintain this suit for the redress of the supposed wrongs of her
citizens in regard to interstate commerce, while under the
Constitution and laws, the said state possesses no such sovereignty
as empowers her to bring an original suit in this Court for such
purpose. "
Page 176 U. S. 13
"Fifth. Because it appears from the face of said bill that no
property right of the State of Louisiana is in any manner affected
by the quarantine complained of, nor is any such property right
involved in this suit as would give this Court original
jurisdiction of this cause."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The ninth of the Articles of Confederation of 1778 provided that
the Congress should be
"the last resort on appeal in all disputes and differences now
subsisting, or that hereafter may arise between two or more states
concerning boundary, jurisdiction, or any other cause
whatever,"
the authority to be exercised through a tribunal to be created
by the Congress as prescribed, and whose judgment should be final
and conclusive, and also that "all controversies concerning the
private right of soil claimed under different grants of two or more
states" should be determined in the same manner.
In the Constitutional Convention, the committee of detail,
composed of Rutledge, Randolph, Gorham, Ellsworth, and Wilson, to
which the resolutions arrived at by the Convention and sundry
propositions had been referred, reported on the sixth of August,
A.D. 1787, a draft of a constitution, consisting of twenty-three
articles.
The second section of the ninth article provided that, as to
"all disputes and controversies now subsisting, or that may
hereafter subsist, between two or more states, respecting
jurisdiction or territory," the Senate should have power to
designate a special tribunal to finally determine the same by its
judgment, and by the third section, "all controversies concerning
lands claimed under different grants of two or more states" were to
be similarly determined.
Page 176 U. S. 14
The third section of the proposed eleventh article provided,
among other things, that the jurisdiction of the Supreme Court
should extend
"to controversies between two or more states, except such as
shall regard territory or jurisdiction, between a state and
citizens of another state; between citizens of different states,
and between a state, or the citizens thereof, and foreign states,
citizens, or subjects."
On the twenty-fifth of August, Mr. Rutledge said in respect to
sections 2 and 3 of article nine:
"This provision for deciding controversies between the states
was necessary under the Confederation, but will be rendered
unnecessary by the national judiciary now to be established,"
and on his motion, the sections were stricken out.
The words "between citizens of the same state claiming lands
under grants of different states" were subsequently inserted in the
third section of the eleventh article, and the words "except such
as shall regard territory or jurisdiction" omitted. 1 Elliot 223,
224, 261, 262, 267, 270; 5 Elliot 471; Meigs on Growth of the
Constitution 244, 249.
Clauses 1 and 2 of the second section of Article III of the
Constitution as finally adopted read:
"The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United
States, and treaties made, or which shall be made, under their
authority; to all cases affecting ambassadors, other public
ministers, and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be
a party; to controversies between two or more states; between a
state and citizens of another state; between citizens of different
states; between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens
thereof, and foreign states, citizens, or subjects."
"In all cases affecting ambassadors, other public ministers, and
consuls, and those in which a state shall be party, the Supreme
Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the Congress shall make. "
Page 176 U. S. 15
The reference we have made to the derivation of the words
"controversies between two or more states" manifestly indicates
that the framers of the Constitution intended that they should
include something more then controversies over "territory or
jurisdiction," for in the original draft as reported, the latter
controversies were to be disposed of by the Senate, and
controversies other than those by the judiciary, to which by
amendment all were finally committed. But it is apparent that the
jurisdiction is of so delicate and grave a character that it was
not contemplated that it would be exercised save when the necessity
was absolute and the matter, in itself, properly justiciable.
Undoubtedly, as remarked by Mr. Justice Bradley in
Hans v.
Louisiana, 134 U. S. 1,
134 U. S. 15, the
Constitution made some things
"justiciable which were not known as such at the common law;
such, for example, as controversies between states as to boundary
lines, and other questions admitting of judicial solution. . . .
The establishment of this new branch of jurisdiction seemed to be
necessary from the extinguishment of diplomatic relations between
the states. Of other controversies between a state and another
state or its citizens, which, on the settled principles of public
law, are not subjects of judicial cognizance, this Court has often
declined to take jurisdiction.
See Wisconsin v. Pelican Ins.
Co., 127 U. S. 265,
127 U. S.
288-289, and cases there cited."
By the Judiciary Act of 1789, the judicial system was organized
and the powers of the different courts defined. Its thirteenth
section, carried forward as ยง 687 of the Revised Statutes, provided
that
"the Supreme Court shall have exclusive jurisdiction of all
controversies of a civil nature where a state is a party, except
between a state and its citizens, or between a state and citizens
of other states, or aliens, in which latter cases it shall have
original, but not exclusive, jurisdiction."
The language of the second clause of the second section of
Article III, "in all cases in which a state shall be party," means
in all the enumerated cases in which a state shall be a party, and
this is stated expressly when the clause speaks
Page 176 U. S. 16
of the other cases where appellate jurisdiction is to be
exercised. This second clause distributes the jurisdiction
conferred in the previous one into original and appellate
jurisdiction, but does not profess to confer any. The original
jurisdiction depends solely on the character of the parties, and is
confined to the cases in which are those enumerated parties, and
those only.
California v. Southern Pacific Railroad
Company, 157 U. S. 229,
157 U. S. 259;
United States v. Texas, 143 U. S. 621. And
by the Constitution and according to the statute, the original
jurisdiction of this Court is exclusive over suits between states,
though not exclusive over those between a state and citizens of
another state.
On the 8th of January, 1798, the Eleventh Amendment was
ratified, as follows:
"The judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or
by citizens or subjects of any foreign state."
Referring to this amendment, Mr. Chief Justice Waite, in
New Hampshire v.
Louisiana and
New York v.
Louisiana, 108 U. S. 76,
108 U. S. 91,
said:
"The evident purpose of the amendment, so promptly proposed and
finally adopted, was to prohibit all suits against a state by or
for citizens of other states, or aliens, without the consent of the
state to be sued, and, in our opinion, one state cannot create a
controversy with another state, within the meaning of that term as
used in the judicial clauses of the Constitution, by assuming the
prosecution of debts owing by the other states to its
citizens."
In order, then, to maintain jurisdiction 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 vindication of the grievances of particular
individuals.
By the Constitution, the states are forbidden to "enter into any
treaty, alliance, or confederation; grant letters of marque and
reprisal," or, without the consent of Congress,
"keep troops or ships of war in time of peace, enter into any
agreement
Page 176 U. S. 17
or compact with another state or with a foreign power, or engage
in war, unless actually invaded or in such imminent danger as will
not admit of delay."
Art. I, sec. 10.
Controversies between them arising out of public relations and
intercourse cannot be settled either by war or diplomacy, though,
with the consent of Congress, they may be composed by agreement. As
pointed out by Mr. Justice Field in
Virginia v. Tennessee,
148 U. S. 503,
148 U. S. 519,
there are many matters on which the different states may agree that
can in no respect concern the United States, while there are other
compacts or agreements to which the prohibition of the Constitution
applies. And as to this he quotes from Mr. Justice Story as
follows:
"Story, in his Commentaries (ยง 1403), referring to a previous
part of the same section of the Constitution in which the clause in
question appears, observes that its language"
"may be more plausibly interpreted from the terms used, 'treaty,
alliance, or confederation,' and upon the ground that the sense of
each is best known by its association (
noscitur a sociis),
to apply to treaties of a political character; such as treaties of
alliance for purposes of peace and war, and treaties of
confederation, in which the parties are leagued for mutual
government, political cooperation, and the exercise of political
sovereignty, and treaties of cession of sovereignty, or conferring
internal political jurisdiction, or external political dependence,
or general commercial privileges;"
"and that"
"the latter clause, 'compacts and agreements,' might then very
properly apply to such as regarded what might be deemed mere
private rights of sovereignty, such as questions of boundary,
interests in lands situate in the territory of each other, and
other internal regulations for the mutual comfort and convenience
of states bordering on each other."
"And he adds:"
"In such cases, the consent of Congress may be properly required
in order to check any infringement of the rights of the national
government, and at the same time, a total prohibition to enter into
any compact or agreement might be attended with permanent
inconvenience or public mischief."
But it was also there ruled that where the consent of Congress
was requisite, it might be given subsequently or might be
Page 176 U. S. 18
implied from subsequent action of Congress itself towards the
two states.
In the absence of agreement, it may be that a controversy might
arise between two states for the determination of which the
original jurisdiction of this Court could be invoked, but there
must be a direct issue between them, and the subject matter must be
susceptible of judicial solution. And it is difficult to conceive
of a direct issue between two states in respect of a matter where
no effort at accommodation has been made; nor can it be conceded
that it is within the judicial function to inquire into the motives
of a state legislature in passing a law, or of the chief magistrate
of a state in enforcing it in the exercise of his discretion and
judgment. Public policy forbids the imputation to authorized
official action of any other than legitimate motives.
As might be expected in view of the nature of the jurisdiction,
the cases are few in which the aid of the Court has been sought in
"controversies between two or more states." They are cited in
Wisconsin v. Pelican Ins. Co., 127 U.
S. 265, and are chiefly controversies as to
boundaries.
In
South Carolina v. Georgia, 93 U. S.
4,
93 U. S. 14, a bill
was filed for an injunction against the State of Georgia, the
Secretary of War, and others from "obstructing or interrupting" the
navigation of the Savannah River in violation of the compact
entered into between the states of South Carolina and Georgia on
the 24th day of April, 1787. The bill was dismissed because no
unlawful obstruction of navigation was proved, but the question was
expressly reserved whether
"a state, when suing in this Court for the prevention of a
nuisance in a navigable river of the United States, must not aver
and show that it will sustain some special and peculiar injury
therefrom such as would enable a private person to maintain a
similar action in another court."
So, in
Wisconsin v. Duluth, 96 U. S.
379,
96 U. S. 382,
the contention that the Court could
"take cognizance of no question which concerns alone the rights
of a state in her political or sovereign character, that to sustain
the suit she must have some proprietary interest which is affected
by the defendant,"
was not passed upon.
Page 176 U. S. 19
In
Pennsylvania v. Wheeling &
Belmont Bridge Co., 13 How. 518, the Court treated
the suit as brought to protect the property of the State of
Pennsylvania.
But in
In re Debs, 158 U. S. 564,
involving a case in the circuit court in which the United States
had sought relief by injunction, it was observed:
"That while it is not the province of the government to
interfere in any mere matter of private controversy between
individuals, or to use its great powers to enforce the rights of
one against another, yet, whenever the wrongs complained of are
such as affect the public at large, and are in respect of matters
which by the Constitution are entrusted to the care of the nation,
and concerning which the nation owes the duty to all the citizens
of securing to them their common rights, then the mere fact that
the government has no pecuniary interest in the controversy is not
sufficient to exclude it from the courts or prevent it from taking
measures therein to fully discharge those constitutional
duties."
It is in this aspect that the bill before us is framed. Its
gravamen is not a special and peculiar injury such as would sustain
an action by a private person, but the State of Louisiana presents
herself in the attitude of
parens patriae, trustee,
guardian, or representative of all her citizens.
She does this from the point of view that the State of Texas is
intentionally absolutely interdicting interstate commerce as
respects the State of Louisiana by means of unnecessary and
unreasonable quarantine regulations. Inasmuch as the vindication of
the freedom of interstate commerce is not committed to the State of
Louisiana, and that state is not engaged in such commerce, the
cause of action must be regarded not as involving any infringement
of the powers of the State of Louisiana, or any special injury to
her property, but as asserting that the state is entitled to seek
relief in this way because the matters complained of affect her
citizens at large. Nevertheless, if the case stated is not one
presenting a controversy between these states, the exercise of
original jurisdiction by this Court as against the State of Texas
cannot be maintained.
Page 176 U. S. 20
By Title XCII of the Revised Statutes of the Texas of 1895,
"The Governor is empowered to issue his proclamation declaring
quarantine on the coast, or elsewhere within this state, whenever
in his judgment quarantine may become necessary, and such
quarantine may continue for any length of time as in the judgment
of the Governor the safety and security of the people may
require."
It is made the Governor's duty
"to select and appoint, by and with the advice and consent of
the senate, from the most skillful physicians of the State of
Texas, one physician, who shall be known as health officer of the
state, and shall from previous and active practice be familiar with
yellow fever and pledged to the importance of both quarantine and
sanitation."
It was also provided that
"whenever the Governor has reason to believe that the State of
Texas is threatened at any point or place on the coast, border, or
elsewhere within the state with the introduction or dissemination
of yellow fever contagion, or any other infectious and contagious
disease that can and should, in the opinion of the state health
officer, be guarded against by state quarantine, he shall, by
proclamation, immediately declare such quarantine against any and
all such places, and direct the state health officer to promptly
establish and enforce the restrictions and conditions proposed and
indicated by said quarantine proclamation, and when from any cause
the Governor cannot act, and the exigencies of the threatened
danger require immediate action, the state health officer is
empowered to declare quarantine as prescribed in this article, and
maintain the same until the Governor shall officially take such
action as he may see proper."
And further that the laws in regard to state quarantine should
remain and be in full force and operation on the coast or elsewhere
in the state as the Governor or health officer might direct, and be
enforced as heretofore, "with such additional changes in station
and general management as the Governor may think proper."
Differences and disputes in regard to local quarantine were to be
determined by the Governor, and all county and municipal quarantine
was made subordinate to such rules and regulations as might be
prescribed by the Governor or state health officer. It
Page 176 U. S. 21
was made the duty of any county, town, or city authority on the
coast or elsewhere in the state, on the promulgation of the
Governor's proclamation declaring quarantine, to provide suitable
stations and employ competent physicians as health officers subject
to the approval of the Governor, and in the case of the failure of
the authorities to do so, the Governor was empowered to act.
Provision was made for the detention of persons and vessels, and
for the disinfection of vessels and their cargoes and passengers
arriving at the ports of Texas from any infected port or district,
and for rules and regulations in regard thereto,
"the object of such rules and regulations being to provide
safety for the public health of the state without unnecessary
restrictions upon commerce and travel."
It is not charged that this statute is invalid, nor could it be
if tested by its terms. While it is true that the power vested in
Congress to regulate commerce among the states is a power complete
in itself, acknowledging no limitations other than those prescribed
in the Constitution, and that, where the action of the states in
the exercise of their reserved powers comes into collision with it,
the latter must give way, yet it is also true that quarantine laws
belong to that class of state legislation which is valid until
displaced by Congress, and that such legislation has been expressly
recognized by the laws of the United States almost from the
beginning of the government.
In
Morgan Steamship Company v. Louisiana Board of
Health, 118 U. S. 455,
this was so held, and Mr. Justice Miller, delivering the opinion of
the Court, said:
"The matter is one in which the rules that should govern it may
in many respects be different in different localities, and for that
reason be better understood and more wisely established by the
local authorities. The practice which should control a quarantine
station on the Mississippi River one hundred miles from the sea may
be widely and wisely different from that which is best for the
harbor of New York."
Hence, even if Congress had remained silent on the subject, it
would not have followed that the exercise of the police power of
the state in this regard, although necessarily operating on
interstate
Page 176 U. S. 22
commerce, would be therefore invalid. Although, from the nature
and subjects of the power of regulating commerce, it must be
ordinarily exercised by the national government exclusively, this
has not been held to be so where in relation to the particular
subject matter different rules might be suitable in different
localities. At the same time, Congress could by affirmative action
displace the local laws, substitute laws of its own, and thus
correct any unjustifiable and oppressive exercise of power by state
legislation.
The complaint here, however, is not that the laws of Texas in
respect of 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
Page 176 U. S. 23
from which it necessarily follows that the two states are in
controversy within the meaning of the Constitution.
Finally, we are unable to hold that the bill may be maintained
as presenting a case of controversy "between a state and citizens
of another state."
Jurisdiction over controversies of that sort does not embrace
the determination of political questions, and, where no controversy
exists between states, it is not for this Court to restrain the
governor of a state in the discharge of his executive functions in
a matter lawfully confided to his discretion and judgment. Nor can
we accept the suggestion that the bill can be maintained as against
the health officer alone on the theory that his conduct is in
violation or in excess of a valid law of the state, as the remedy
for that would clearly lie with the state authorities, and no
refusal to fulfill their duty in that regard is set up. In truth,
it is difficult to see how on this record there could be a
controversy between the State of Louisiana and the individual
defendants without involving a controversy between the states, and
such a controversy, as we have said, is not presented.
Demurrer sustained and bill dismissed.
MR. JUSTICE WHITE concurred in the result.
MR. JUSTICE HARLAN concurring:
Taking the allegations of the bill to be true -- as upon
demurrer must be done -- this suit cannot be regarded as one
relating only to local regulations that incidentally affect
interstate commerce and which the state may adopt and maintain in
the absence of national regulations on the subject. On the
contrary, if the allegations of the bill be true, the Texas
authorities have gone beyond the necessities of the situation and
established a quarantine system that is absolutely subversive of
all commerce between Texas and Louisiana, particularly commerce
between Texas and New Orleans. This Court has often declared that
the states have the power to protect the health of their people by
police regulations directed to that
Page 176 U. S. 24
end, and that regulations of that character are not to be
disregarded because they may indirectly or incidentally affect
interstate commerce. But when that principle has been announced, it
has always been said that the police power of a state cannot be so
exerted as to obstruct foreign or interstate commerce beyond the
necessity for its exercise, and that the courts must guard
vigilantly against needless intrusion upon the field committed to
Congress.
Railroad Co. v. Husen, 95 U. S.
465,
95 U. S.
470-473;
Hennington v. Georgia, 163 U.
S. 299,
163 U. S. 313,
163 U. S. 318;
Missouri, Kansas and Texas Railway v. Haber, 169 U.
S. 613,
169 U. S.
628-630. The present suit proceeds distinctly on the
ground that the regulations established by the authorities of Texas
under its statute go beyond what is necessary to protect the people
of that state against the introduction of infectious diseases, and
destroys the possibility of any commerce between New Orleans and
Texas. Now if Texas has no right, by its officers, to establish
regulations that unreasonably or unnecessarily burden commerce
between that state and Louisiana, and if the State of Louisiana is
entitled under the Constitution to have the validity of such
regulations tested in a judicial tribunal, then this Court should
put the defendants to their answer, and the cause should proceed to
a final decree upon its merits.
But I am of opinion that the State of Louisiana, in its
sovereign or corporate capacity, cannot bring any action in this
Court on account of the matters set forth in its bill. The case
involves no property interest of that state. Nor is Louisiana
charged with any duty, nor has it any power, to regulate interstate
commerce. Congress alone has authority in that respect. When the
Constitution gave this Court jurisdiction of controversies between
states, it did not thereby authorize a state to bring another state
to the bar of this Court for the purpose of testing the
constitutionality of local statutes or regulations that do not
affect the property or the powers of the complaining state in its
sovereign or corporate capacity, but which, at most, affect only
the rights of individual citizens or corporations engaged in
interstate commerce. The word "controversies" in the clauses
extending the judicial
Page 176 U. S. 25
powers of the United States to controversies "between two or
more states," and to controversies "between a state and citizens of
another state," and the word "party" in the clause declaring that
this Court shall have original jurisdiction of all cases "in which
a state shall be a party," refer to controversies or cases that are
justiciable as between the parties thereto, and not to
controversies or cases that do not involve either the property or
powers of the state which complains in its sovereign or corporate
capacity that its people are injuriously affected in their rights
by the legislation of another state. The citizens of the
complaining state may, in proper cases, invoke judicial protection
of their property or rights when assailed by the laws and
authorities of another state, but their state cannot, even with
their consent, make their case its case and compel the offending
state and its authorities to appear as defendants in an action
brought in this Court. If this be not so, we were wrong in
New
Hampshire v. Louisiana, 108 U. S. 76, in
which case it was held that one state could not, by taking charge
of demands or debts held by its citizens against another state,
acquire the right to bring a suit in its name in this Court against
the debtor state.
I must express my inability to concur in that part of the
opinion of the Court relating to the clause of the Constitution
extending the judicial power of the United States to controversies
"between a state and citizens of another state." In reference to a
controversy of that sort, the Court says that where none exist
between states, it is not for this Court to restrain the governor
of a state in the discharge of his executive functions in a matter
confided to his discretion and judgment. But how can the governor
of a state be said to have an executive function to disregard the
Constitution of the United States? How can his state authorize him
to do that? It is one thing to compel the governor of a state, by
judicial order, to take affirmative action upon a designated
subject. It is quite a different thing to say that, being directly
charged with the execution of a statute, he may not be restrained
by judicial orders from taking such action as he deems proper, even
if what he is doing and proposes to do
Page 176 U. S. 26
is forbidden by the supreme law of the land. His official
character gives him no immunity from judicial authority exerted for
the protection of the constitutional rights of others against his
illegal action. He cannot be invested by his state with any
discretion or judgment to violate the Constitution of the United
States.
The Court also says that it cannot accept the suggestion that
the bill can be maintained as against the health officer alone on
the theory that his conduct is in violation or in excess of a valid
law of the state, as the remedy for that would lie with the state
authorities, and no refusal to fulfill their duty in that regard is
set up, and that it is difficult to see how, on this record, there
could be a controversy between the State of Louisiana and the
individual defendants without involving a controversy between the
states. But the important question presented in this case -- if the
State of Louisiana in its sovereign capacity can sue at all in
respect of the matters set out in the bill -- is whether the
regulations being enforced by the health officer are in violation
of the Constitution of the United States. The opinion of the Court
will be construed as meaning that even if Louisiana be entitled, in
her sovereign capacity, to complain of those regulations as
repugnant to the Constitution of the United States, it could not
proceed in this Court against the defendant health officer, and
that its only remedy is to appeal to the authorities of Texas --
that is, to the governor of that state, who has power to control
his codefendant, the health officer, and who has approved the
regulations in question. I am not aware of any decision supporting
this view. If the regulations in question are in violation of the
Constitution of the United States, the defendant health officer, I
submit, may, without any previous appeal to the Governor of Texas,
be restrained from enforcing them, either at the suit of
individuals injuriously affected by their being enforced, or at the
suit of Louisiana in its corporate capacity, provided that state
could sue at all in respect of such matters.
Although unable to assent to the grounds upon which the Court
rests its opinion, I concur in the judgment dismissing
Page 176 U. S. 27
the suit solely upon the ground that the State of Louisiana, in
its sovereign or corporate capacity, cannot sue on account of the
matters set out in the bill.
MR. JUSTICE BROWN concurring in the result:
I am not prepared to say that, if the State of Texas had placed
an embargo upon the entire commerce between Louisiana and Texas,
the State of Louisiana would not be sufficiently representative of
the great body of her citizens to maintain this bill.
In view of the solicitude which from time immemorial states have
manifested for the interest of their own citizens, of the fact that
wars are frequently waged by states in vindication of individual
rights, of which the last war with England, the opium war of 1840
between Great Britain and China, and the war which is now being
carried on in South Africa between Great Britain and the Transvaal
Republic, are all notable examples, of the further fact that
treaties are entered into for the protection of individual rights,
that international tribunals are constantly being established for
the settlement of rights of private parties, it would seem a
strange anomaly if a state of this union, which is prohibited by
the Constitution from levying war upon another state, could not
invoke the authority of this Court by suit to raise an embargo
which had been established by another state against its citizens
and their property.
An embargo, though not an act of war, is frequently resorted to
as preliminary to a declaration of war, and may be treated under
certain circumstances as a sufficient
casus belli. The
case made by the bill is the extreme one of a total stoppage of all
commerce between the most important city in Louisiana and the
entire State of Texas, and while I fully agree that resort cannot
be had to this Court to vindicate the rights of individual
citizens, or any particular number of individuals, where a state
has assumed to prohibit all kinds of commerce with the chief city
of another state, I think her motive for doing so is the proper
subject of judicial inquiry.
Page 176 U. S. 28
It is true that individual citizens whose rights are seriously
affected by a system of nonintercourse might perhaps maintain a
bill of this kind, but to make the remedy effective, it would be
necessary to institute a multiplicity of suits, to carry on a
litigation practically against a state in the courts of that state,
and to assume the entire pecuniary burden of such litigation when
all the inhabitants of the complaining state are more or less
interested in the result.
But the objection to the present bill is that it does not allege
the stoppage of all commerce between the two states, but between
the City of New Orleans and the State of Texas. The controversy is
not one in which the citizens of Louisiana generally can be assumed
to be interested, but only the citizens of New Orleans, and it
therefore seems to me that the state is not the proper party
complainant.
