This suit was brought by the State of Missouri against the State
of Illinois and the Sanitary District of Chicago. The latter is
alleged to be
"a public corporation organized under the laws of the Illinois
and located in part in the City of Chicago, and in the County of
Cook, in the State of Illinois, and a citizen of the Illinois."
The remedy sought for is an injunction restraining the
defendants from receiving or permitting any sewage to be received
or discharged into the artificial channel or drain constructed by
the Sanitary District under authority derived from the State of
Illinois in order to carry off and eventually discharge into the
Mississippi the sewage of Chicago, which had been previously
discharged into Lake Michigan, and from permitting the same to flow
through said channel or drain into the Des Plaines River, and
thence by the River Illinois into the Mississippi. The bill alleged
that the nature of the injury complained of was such that an
adequate remedy could only be found in this Court at the suit of
the State of Missouri. The object of the bill was to subject this
public work to judicial supervision upon the allegation that the
method of its construction and maintenance will create a continuing
nuisance, dangerous to the health of a neighboring state and its
inhabitants, and the bill charged that the acts of the defendants,
if not restrained, would result in the transportation, by
artificial means, and through an unnatural channel, of large
quantities of undefecated sewage daily, and of accumulated deposits
in the harbor of Chicago and in the bed of the Illinois River,
which will poison the water supply of the inhabitants of Missouri
and injuriously affect that portion of the bed or soil of the
Mississippi River which lies within its territory. The bill did not
assail the drainage canal as an unlawful structure, nor aim to
prevent its use as a waterway, but it sought relief against the
pouring of sewage and filth through it by artificial arrangements
into the Mississippi River, to the detriment of the Missouri and
its inhabitants. The defendants demurred to the bill for want of
jurisdiction and for reasons set forth in the demurrer. This Court
held that the demurrer could not be sustained, and required the
defendants to appear and answer.
In January, 1900, the State of Missouri filed in this Court a
bill of complaint against the State of Illinois and the
Sanitary
Page 180 U. S. 209
District of Chicago, a corporation of the latter state, in the
following terms:
"The complainant, the State of Missouri and one of the states of
the United States, brings this its bill of complaint against the
State of Illinois, one of the states of the United States, and the
Sanitary District of Chicago, a public corporation organized under
the laws of the State of Illinois and located in part in the City
of Chicago and in the County of Cook in said State of Illinois, and
a citizen of the State of Illinois."
"And your orator complains and says that it is a state
containing a population of upwards of three millions of people, and
lying on the west bank of the Mississippi River, a public,
navigable, and running stream, and having a frontage on said stream
of over 400 miles."
"And your orator shows that, by the act of Congress providing
for the organization and admission of Illinois and Missouri as
states of the Union, it was declared that the western boundary of
Illinois and the eastern boundary of Missouri should be the middle
of the main channel of the Mississippi River; that the shores of
the Mississippi River, where its waters form the Missouri and
Illinois boundary, and the soil under the waters thereof, were not
granted by the Constitution of the United States, but were reserved
to the States of Illinois and Missouri, respectively."
"And your orator shows that the States of Missouri and Illinois
each have concurrent general jurisdiction over the waters of the
Mississippi River forming the boundary between them, and each of
said states has exclusive territorial jurisdiction over that
portion adjacent to its own shore, and your orator shows that the
Illinois River empties into the Mississippi River at a point above
the City of St. Louis on the Illinois side of said Mississippi
River."
"And your orator further shows that, within the Territory of
your orator and on the banks and shores of said Mississippi River
and below the mouth of the Illinois River are many cities and towns
in the State of Missouri, and many thousands of persons who are
compelled to and do rely upon the waters of said river in their
regular, natural, and accustomed flow for their daily
Page 180 U. S. 210
necessary supply of water for drinking and all other domestic
and agricultural and manufacturing purposes, and for watering stock
and animals of all kinds, and that said Mississippi River has been
flowing in its regular course and has been used for the purposes
aforesaid by the inhabitants of the said State of Missouri for a
time whereof the memory of a man runneth not to the contrary, and
that said river and its waters and the use thereof for drinking,
agricultural, and manufacturing purposes in their accustomed and
natural flow are indispensable to the life and health and business
of many thousands of the inhabitants of the State of Missouri, and
of great value to your orator as a state."
"And your orator shows that cities and towns below the mouth of
said Illinois River, within the Territory of your orator, do and
are compelled, by means of waterworks, water towers, and intakes
built and constructed for that purpose to supply the inhabitants of
said cities and towns with an adequate supply of pure and wholesome
water fit and healthful for drinking and all other domestic
purposes and uses from the said Mississippi River so flowing in its
ancient, accustomed, and natural course."
"And your orator shows that said waterworks systems are
constructed with reference to said Mississippi River and for the
purpose of taking water therefrom, and not from any other
source."
"And your orator shows that heretofore, to-wit, in 1889, the
State of Illinois enacted a law known as the Sanitary District Act,
together with an act for the improvement of the Illinois and Des
Plaines rivers, and that, under said act of said state, the said
corporation known as the said Sanitary District of Chicago was
organized and is now existing and operating, and that, by the
express terms of said act, any canal or drain corporation organized
in accordance with its provisions may have conditions,
restrictions, or additional requirements placed in said
corporation, or the act authorizing the creation of said
corporation may be amended or repealed, and that, by the express
provisions of said act, before any water or sewage shall be
admitted into any channel constructed under said act, the trustees
of said channel shall notify the Governor of Illinois
Page 180 U. S. 211
of the completion of said channel, and the Governor of Illinois
shall appoint three commissioners to examine said canal or channel,
and report to the Governor if the same complies with the act of the
State of Illinois, and if it does, the Governor shall authorize the
water and sewage to be turned into said channel, and that, without
the said permit, it cannot be so turned in, and that, by the
general provisions of said act, said channel is at all times
subject to the control and supervision of the State of Illinois and
her authorities."
"And your orator further shows that the Chicago River is
situated in the basin of Lake Michigan, and has two forks or
branches flowing through the City of Chicago and into Lake
Michigan, and that the natural drainage of Chicago, Illinois, is
into Lake Michigan, and the sewage and drainage of the territory
embraced in the defendant's district, the Sanitary District of
Chicago, is led into or flows into the Chicago River and Lake
Michigan."
"And your orator further shows that the defendant herein, the
Sanitary District of Chicago, with the authority of the State of
Illinois, and acting as a governmental agency of said state and
under the supervision and control and subject to the approval of
the State of Illinois, has constructed a channel or open drain from
the west fork of the south branch of the Chicago River, in the City
of Chicago and County of Cook, in the State of Illinois, to a point
near Lockport, in the County of Will in said state, where said
channel or drain connects with and empties into the Des Plaines
River, which empties into the Illinois River, and which latter
river flows and empties into the Mississippi River at a point
distant about forty-three miles above the City of St. Louis,
Missouri."
"And your orator further states that the channel built by the
Sanitary District of Chicago was so built by said sanitary district
as one of the governmental agencies of the State of Illinois, and
by the pretended lawful authority of said state, and under the
direction, supervision, and control and governmental power of the
State of Illinois, and which said state has heretofore at all times
sanctioned, and now, through its Governor and other officers,
sanctions, the building of said channel and opening thereof. "
Page 180 U. S. 212
"And your orator further shows that in the construction of said
channel or drain the defendant, the Sanitary District of Chicago,
Illinois, with the sanction and approval of the State of Illinois,
cut through the natural bridge or watershed which divides the basin
of Lake Michigan from the basins of the Des Plaines and Illinois
Rivers and the basin of the Mississippi River, and that, having so
constructed said channel, and having about completed the same, and
having, under the supervision of and with the sanction of the State
of Illinois, extended said artificial channel through said natural
divide of the watershed, the defendants now propose and threaten to
receive into said channel or drain the sewage matter and filth of
the Sanitary District of Chicago, which embraces nearly the whole
City of Chicago and a portion of the County of Cook, and, without
any legal authority so to do, has already in part effectuated its
said threat and purpose, and threatens to permit and to cause said
sewage and filth, by artificial means of pumping and otherwise, to
flow through the channel or drain towards and into the said Des
Plaines River and eventually into the Mississippi River, thereby,
with the approval of and subject to the inspection and control and
supervision of the State of Illinois, and by the pretended
authority thereof, reversing the natural flow of said Chicago
River."
"And your orator further shows that the sewage matter and
poisonous filth which it is thus threatened to receive and to
permit and to cause to flow through said artificial channel into
said Des Plaines River is that which is created by a population of
upwards of one and one-half millions of people, besides that which
is created by a great number of stockyards, slaughtering
establishments, rendering establishments, distilleries, and other
business enterprises and industries lining both sides of the
Chicago River, producing filth and noxious matters; all of which
are there discharged into the said Chicago River or drained therein
from the surface."
"And your orator further shows that, for many years past, the
said City of Chicago, the greater portion of which is embraced in
the limits of the defendant corporation, the Sanitary District of
Chicago, as aforesaid, has been discharging its sewage matter
Page 180 U. S. 213
and filth into the Chicago River and into Lake Michigan in such
large quantities that much of it has accumulated in the bed and
along the sides of the river and upon the bed of said Lake
Michigan, near the shores thereof, and that the plan threatened and
attempted now to be adopted by the defendant, the Sanitary District
of Chicago, acting in conjunction with and subject to the control
of the defendant, the State of Illinois, and by the pretended
authority of the said State of Illinois, will loosen said
accumulated matter and filth, and will also direct it and cause it
to flow towards and into said artificial channel or drain, and
thence into said Des Plaines River, and finally into the
Mississippi River and into the waters thereof within the
jurisdiction and under the control of your orator and past the
homes of the inhabitants of your orator and the towns and cities
within the borders of your orator, and past the waterworks of said
cities and towns within the State of Missouri."
"And your orator further shows that the amount of said
undefecated filth and sewage and poisonous and unhealthful and
noxious matters proposed to be, and now about to be, permitted to
be turned into said artificial channel and through said Des Plaines
and Illinois Rivers into the Mississippi River from the said
Sanitary District of Chicago by the defendants, acting jointly,
will amount daily to about 1,500 tons, and that, if defendants
should be permitted to carry their said threats into execution, and
should cause said above amount of undefecated sewage and other
poisonous and noxious matters, which would otherwise flow into Lake
Michigan, to flow into the Mississippi River, that the waters of
the Mississippi River within the jurisdiction of your orator will
of a certainty be poisoned and polluted and rendered wholly unfit
and unhealthful for drinking and domestic uses, and will render
wholly valueless and entirely worthless the various waterworks
system of towns and cities on the borders of the State of Missouri
established and acquired at great cost and expense, and will
deprive your orator, the State of Missouri, and its inhabitants, of
the right to use of the waters of said river for drinking and all
other domestic and manufacturing and agricultural purposes, as said
water has been so used in its accustomed and natural flow
heretofore
Page 180 U. S. 214
for the length of time that the memory of man runneth not to the
contrary thereof."
"And that said threatened action of the defendants will amount
to a direct and continuing nuisance, and be an interference with
the use by your orator and its inhabitants of the waters of the
Mississippi River flowing in their natural state, polluting and
poisoning the same by the means aforesaid, whereby the health and
lives of the inhabitants of your orator will be endangered and the
business interests of said state will be greatly and irreparably
injured, and which said damage to the lives and health and the
business interests of said state resulting from said poisoning and
polluting of said waters as aforesaid to your orator cannot be
estimated in money value."
"And your orator, on information and belief, states and charges
the fact to be that said 1,500 tons of poisonous undefecated filth
and sewage of said Sanitary District of Chicago will be daily
carried through said artificial channel and sent through the Des
Plaines and Illinois Rivers into the Mississippi, and great
quantities thereof will be deposited in the bed and soil of said
river belonging to your orator and wholly within the jurisdiction
thereof, to your orator's great and irreparable damage, and that
the 1,500 tons of undefecated sewage and filth now about to be
daily injected into the waters of the Mississippi River and into
the portion thereof over which the State of Missouri has
jurisdiction, and from which thousands of her inhabitants obtain
drinking water, will pollute and poison the said water of the
Mississippi River to such an extent as to render it unwholesome and
unfit and unhealthful for use for drinking by the said inhabitants
in the Territory of your orator, and unfit for use for watering
stock and for manufacturing purposes."
"And your orator further shows that great quantities of
undefecated sewage turned into the Mississippi River in the manner
and by the means aforesaid will poison and pollute said water with
the germs of disease of various and many kinds. And your orator
further shows that the acts herein complained of on the part of the
State of Illinois, acting in conjunction with one of her
governmental agencies, the said Sanitary District of
Page 180 U. S. 215
Chicago, will cause a continuing nuisance in the Mississippi
River, and that the said State of Illinois has no power or
authority to cause, or permit or assist in causing, the commission
and continuance of a nuisance in the flowing waters of the
Mississippi River, a navigable stream, to the detriment and
irreparable and continuing damage and injury of the State of
Missouri and the continuing and irreparable injury to the lives and
health of the citizens and inhabitants of the State of Missouri,
and that, unless restrained by the order and decree of this Court
the defendants, the State of Illinois and the Sanitary District of
Chicago, acting together, will, in accordance with the terms of the
act under which said sanitary district is organized, upon the
permit and authority of the Governor of Illinois and of the State
of Illinois, turn said water and sewage aforesaid, by the manner
and means aforesaid, into the Des Plaines and Illinois Rivers and
thence into the Mississippi; all of which your orator says and
avers is contrary to equity and good conscience, and would result
in the manifest and irreparable injury of your orator and the
health of her citizens in the premises, and your orator is wholly
without remedy at law and without any adequate remedy to prevent
the flowing of said sewage, as aforesaid, save by the interposition
of this Court."
"Forasmuch as your orator can have no adequate relief except in
this Court, and to the end therefore that the defendants may, if
they can, show why your orator should not have the relief prayed,
and to the end that the defendants may make a full, true, direct,
and perfect answer to the matters hereinbefore stated and charged,
but not under oath, an answer under oath being hereby expressly
waived, and to the end that the defendants, their officers, agents,
servants, and employees may be restrained by injunction issuing out
of this Court from receiving or permitting any sewage to be
received or discharged into said artificial channel or drain, and
from permitting the same to flow or causing the same to be made to
flow through said channel or drain towards and into the Des Plaines
River, your orator prays that your honors may grant a writ of
injunction, under the seal of this honorable Court, properly
restraining and enjoining the defendants, the officers, agents,
employees, and
Page 180 U. S. 216
servants of the Sanitary District of Chicago and the State of
Illinois from permitting or causing any of said sewage to be
discharged into said channel or drain and from permitting or
causing said sewage and poisonous filth thence to flow into said
Des Plaines River; that defendant, the State of Illinois, be
enjoined and restrained from issuing to its codefendant permission
and authority to do and perform the acts aforesaid or to allow them
to be done, and your orator also prays for a provisional or
temporary injunction pending this cause, restraining and enjoining
the several acts aforesaid, and for such other and further relief
as the equity of the case may require and to your honors may seem
meet."
"May it please your honors to grant unto your orator not only a
writ of injunction conformable to the prayer of this bill, but also
a writ of subpoena of the United States of America, directed to the
State of Illinois, the Governor and attorney general thereof, and
to said Sanitary District of Chicago, its officers, trustees, and
agents, commanding them on a day certain to appear and answer unto
this bill or complaint and to abide such order and decree of the
Court in the premises as to the Court shall seem proper and
required by the principles of equity and good conscience."
In March, 1900, came the defendants and filed a demurrer to the
bill of complaint in the following terms:
"Now come the State of Illinois by its attorney general, Edwin
C. Akin, and the Sanitary District of Chicago by its attorneys, and
demur to the bill of complaint filed herein, and say that the said
bill of complaint and the matters therein contained, in manner and
form as the same are above stated and set forth, are not sufficient
in law for the said State of Missouri to have and maintain its
aforesaid action against the said State of Illinois and the
Sanitary District of Chicago, and that said defendants are not
bound by the law of the land to answer the same, and the said
defendants, according to the form of the statute in such case made
and provided, state and show to the court here the following causes
of demurrer to the said bill of complaint:"
"
First. That this Court has no jurisdiction of either
the
Page 180 U. S. 217
parties to or of the subject matter of this suit, because it
appears upon the face of said bill of complaint that the matters
complained of, as set forth therein, do not constitute, within the
meaning of the Constitution of the United States, any controversy
between the State of Missouri and the State of Illinois, or any of
its citizens."
"
Second. That the matters alleged and set forth in said
bill of complaint show that the only issues presented therein
arise, if at all, between the State of Illinois and a public
corporation created under the laws of said state, and certain
cities and towns in their corporate capacity as such, in the State
of Missouri, and certain persons in said State of Missouri,
residing on or near the banks of the Mississippi River, and which
matters so stated in said bill of complaint, if true, do not
concern the State of Missouri as a corporate body or state."
"
Third. That said bill of complaint shows upon its face
that this suit is in fact for and on behalf of certain cities and
towns in said State of Missouri situate on the banks of the
Mississippi River and certain persons who reside in said state on
or near the banks of said river, and that, although the said suit
is attempted to be prosecuted for and in the name of the State of
Missouri, said state is, in effect loaning its name to said cities
and towns and to said individuals, and is only a nominal party to
said suit, and that the real parties in interest are the said
cities and towns in their corporate capacity as such, and said
private persons or citizens of said state."
"
Fourth. That it appears upon the face of said bill of
complaint that the said State of Missouri, in her right of
sovereignty, is seeking to maintain this suit for the redress of
the supposed wrongs of certain cities and towns in said state in
their corporate capacity as such, and of certain private citizens
of said state, while, under the Constitution of the United States
and the laws enacted thereunder, the said state possesses no such
sovereignty as empowers it to bring an original suit in this Court
for such purpose."
"
Fifth. That it appears upon the face of said bill of
complaint that no property rights of the State of Missouri are in
any manner affected by the matters alleged in said bill of
complaint,
Page 180 U. S. 218
nor is there any such property right involved in this suit as
would give this Court original jurisdiction of this cause."
"
Sixth. That in order to authorize this Court to
maintain original jurisdiction of this suit as against the State of
Illinois or against any citizens of said state, it must appear that
the controversy set forth in the bill of complaint and to be
determined by this Court is a controversy arising directly between
the State of Missouri and the State of Illinois, or some of its
citizens, and not a controversy in vindication of the alleged
grievances of certain cities and towns in said state or of
particular individuals residing therein."
"
Seventh. The said bill of complaint is in other
respects uncertain, informal, and insufficient, and that it does
not state facts sufficient to entitle the said State of Missouri to
the equitable relief prayed for in said bill of complaint."
"Wherefore, for want of a sufficient bill of complaint in this
behalf, the said defendants pray judgment, and that the said State
of Missouri may be barred from having or maintaining the aforesaid
action against said defendants, and that this Court will not take
further cognizance of this cause, and that the said defendants be
hence dismissed with their costs."
On November 12, 1900, the case came on to be heard on bill and
demurrer, and was argued by counsel.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
This cause is now before us on the bill of complaint and the
demurrer thereto.
The questions thus presented are two: first, whether the
allegations of the bill disclose the case of a controversy
between
Page 180 U. S. 219
the State of Missouri and the State of Illinois and a citizen
thereof within the meaning of the Constitution and statutes of the
United States, which create and define the original jurisdiction of
this Court, and second, whether, if it be held that the allegations
of the bill do present such a controversy, they are sufficient to
entitle the State of Missouri to the equitable relief prayed
for.
The question whether the acts of one state in seeking to promote
the health and prosperity of its inhabitants by a system of public
works, which endangers the health and prosperity of the inhabitants
of another and adjacent state, would create a sufficient basis for
a controversy in the sense of the Constitution would be readily
answered in the affirmative if regard were to be had only to the
language of that instrument.
"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. . . . 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 controversies
between two or more states, between a state and citizens of another
state. . . . In all cases . . . in which a state shall be party,
the Supreme Court shall have original jurisdiction."
Const. art. 3.
As there is no definition or description contained in the
Constitution of the kind and nature of the controversies that
should or might arise under these provisions, it might be supposed
that in all cases wherein one state should institute legal
proceedings against another, the original jurisdiction of this
Court would attach.
But in this as in other instances, when called upon to construe
and apply a provision of the Constitution of the United States, we
must look not merely to its language, but to its historical origin
and to those decisions of this Court in which its meaning and the
scope of its operation have received deliberate consideration.
After the Declaration of Independence, the united colonies,
through delegates appointed by each of the colonies, considered
Page 180 U. S. 220
articles of confederation, which were debated from day to day
and from time to time for two years and were, on July 9, 1778,
ratified by ten states, by New Jersey on November 26 of the same
year, by Delaware on the 23d of February, 1779, and by Maryland on
March 1, 1781.
The first article was as follows: "The style of this confederacy
shall be
The United States of America.'"
The ninth article contained, among other provisions, the
following:
"The United States, in Congress assembled, shall also 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,
which authority shall always be exercised in the manner following:
whenever the legislative or executive authority or lawful agent of
any state in controversy with another shall present a petition to
Congress stating the matter in question and praying for a hearing,
notice thereof shall be given by order of Congress to the
legislative or executive authority of the other state in
controversy, and a day assigned for the appearance of the parties
by their lawful agents, who shall then be directed to appoint, by
joint consent, commissioners or judges to constitute a court for
hearing and determining the matter in question; but if they cannot
agree, Congress shall name three persons out of each of the United
States, and from the list of such persons each party shall
alternately strike out one, the petitioners beginning, until the
number shall be reduced to thirteen, and from that number not less
than seven nor more than nine names, as Congress shall direct,
shall, in the presence of Congress, be drawn out by lot, and the
persons whose names shall be so drawn, or any five of them, shall
be commissioners or judges, to hear and finally determine the
controversy, so always as a major part of the judges who shall hear
the cause shall agree in the determination, and if either party
shall neglect to attend at the day appointed without showing
reasons which Congress shall judge sufficient, or, being present,
shall refuse to strike, the Congress shall proceed to nominate
three persons out of each state, and the secretary of Congress
shall strike in behalf
Page 180 U. S. 221
of such party absent or refusing, and the judgment and sentence
of the court, to be appointed in the manner before prescribed,
shall be final and conclusive, and if any of the parties shall
refuse to submit to the authority of such court or to appear or
defend their claim or cause, the court shall nevertheless proceed
to pronounce sentence or judgment, which shall in like manner be
final and decisive, the judgment or sentence, and other
proceedings, being in either case transmitted to Congress and
lodged among the acts of Congress for the security of the parties
concerned; provided, that every commissioner, before he sits in
judgment, shall take an oath, to be administered by one of the
judges of the supreme or superior court of the state where the
cause shall be tried,"
"well and truly to hear and determine the matter in question
according to the best of his judgment, without favor, affection, or
hope of reward; provided also that no state shall be deprived of
territory for the benefit of the United States."
It will therefore be perceived that, under the confederation,
the necessity of a tribunal to hear and determine matters in
question between two or more states was recognized, that a court
was provided for that purpose, and that the scope or field within
which it was expected such matters in question or controversies
should or might arise for the determination of such court extended
to
"
all disputes and differences now subsisting or that
hereafter may arise between two or more states concerning boundary,
jurisdiction, or any other cause whatever."
When the federal convention met in 1787 to form the present
Constitution of the United States, several drafts of such an
instrument were presented for the consideration of the convention.
One of these was offered on May 29 by Edmund Randolph, of Virginia,
in the shape of resolutions covering the entire subject of a
national government. The ninth resolution prescribed the formation
of a national judiciary, to consist of a supreme and inferior
tribunals, with jurisdiction to hear and determine, among other
things, "questions which involve the internal peace or harmony." 1
Elliot Debates, p. 143. On the same day Charles Pinckney, of South
Carolina, submitted a draft of a federal government, the seventh
article whereof was as follows:
Page 180 U. S. 222
"The Senate shall have the sole and exclusive power to declare
war and to make treaties, and to appoint ambassadors and other
ministers to foreign nations, and judges of the Supreme Court."
"They shall have the exclusive power to regulate the manner of
deciding all disputes and controversies now subsisting, or which
may arise, between the states respecting jurisdiction or
territory."
Elliot's Deb., vol. 1, p. 145.
On June 19, the committee of the whole, to which had been
referred the several propositions and drafts, reported to the
convention for its consideration a draft as altered, amended, and
agreed to in the committee. The thirteenth resolution was as
follows:
"That the jurisdiction of the national judiciary shall extend to
cases which respect the collection of the national revenue,
impeachment of any national officers, and questions which involve
the national peace and harmony."
Elliot's Deb., vol. 1, p. 182.
On August 6 a committee of five members, to which the various
propositions, as originally made and as amended in the committee of
the whole, reported to the convention a draft of the Constitution,
the ninth article of which was as follows:
"SEC. 1. The Senate of the United States shall have power to
make treaties and appoint ambassadors and judges of the Supreme
Court."
"SEC. 2. In all disputes and controversies now subsisting, or
that may hereafter subsist, between two or more states respecting
jurisdiction or territory, the Senate shall possess the following
powers, etc. [And here follows a scheme for a special court, in
terms similar to that provided in the articles of
confederation.]"
"SEC. 3. All controversies concerning lands claimed under
different grants of two or more states whose jurisdiction, as they
respect such lands, shall have been decided or adjusted subsequent
to such grants, or any of them, shall, on application to the
Senate, be finally determined, as near as may be, in the same
manner as is before prescribed for deciding controversies between
different states."
The eleventh article contained, among other sections, the
following:
Page 180 U. S. 223
"SEC. 1. The judicial power of the United States shall be vested
in one Supreme Court and in such inferior courts as shall, when
necessary, from time to time, be constituted by the legislature of
the United States. . . ."
"SEC. 3. The jurisdiction of the Supreme Court shall extend to
all cases arising under laws passed by the legislature of the
United States; to all cases affecting ambassadors, other public
ministers, and consuls; to the trial of impeachment of officers of
the United States; to all cases of admiralty and maritime
jurisdiction; 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."
Elliot's Deb., vol. 1, p. 224.
It may be observed in passing that, in this draft, all disputes
and controversies between two or more states respecting
jurisdiction or territory are to be determined by a special court
to be constituted by the Senate, and controversies between two or
more states, except such as shall regard territory or jurisdiction,
are determinable by the Supreme Court. It is therefore apparent
that other disputes or controversies between states were regarded
and provided for besides those respecting territory or
jurisdiction.
This draft, together with numerous suggestions and amendments,
was on August 7 submitted to the committee of the whole.
On September 12, a committee on revision reported a draft of the
Constitution as revised and arranged. This draft, which, as
respects our present subject, was in the terms of the Constitution
as finally adopted, took from the Senate the power to constitute a
court to try disputes between the states respecting territory or
jurisdiction and struck out the provision excluding from the
jurisdiction of the Supreme Court disputes between the states in
matters respecting jurisdiction and territory. The entire
jurisdiction of controversies between states was bestowed upon the
Supreme Court, in the second section of Article III, in the
following terms:
"The judicial power shall extend to all cases in law and
Page 180 U. S. 224
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."
As in this section, power is conferred on Congress to make
regulations affecting the exercise by the Supreme Court of its
jurisdiction, it may not be out of place to quote the provisions in
this respect of the Judiciary Act of 1789:
"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."
Rev.Stat. sec. 687.
The case of
New York v.
Connecticut, 4 Dall. 1, in 1799, was the first
instance of an exercise by the Supreme Court of its jurisdiction in
a controversy between two states. It was a case of a bill in equity
filed by the State of New York against the State of Connecticut and
certain private persons who were grantees of the latter state of
lands the jurisdiction over which was claimed by both states. The
object of the bill was to obtain an injunction to stay proceedings
in ejectment pending in the Circuit Court of the United States for
the District of Connecticut.
The Court was of opinion that, as the State of New York was not
a party to the suits below nor interested in the decisions
Page 180 U. S. 225
of those suits, an injunction ought not to issue. No argument
was made that the Court had not jurisdiction, and the Court
proceeded on the assumption that it possessed jurisdiction,
although, under the facts of the case, it refused the injunction
prayed for.
New Jersey v. New
York, 5 Pet. 285, was the case of a bill filed by
the State of New Jersey against the State of New York for the
purpose of ascertaining and settling the boundary between the two
states. In an opinion awarding the process of subpoena, Chief
Justice Marshall said:
"The Constitution of the United States declares that 'the
judicial power shall extend to controversies between two or more
states.' It also declares that"
"in all cases affecting ambassadors, other public ministers, and
consuls, and those in which a state shall be a party, the Supreme
Court shall have original jurisdiction. . . ."
"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."
In March, 1832, the State of Rhode Island filed in this Court a
bill against the State of Massachusetts for the settlement of the
boundary between the two states, and moved for a subpoena to be
issued according to the practice of the court in similar cases. An
appearance was entered for Massachusetts, and a motion was made to
dismiss the bill for want of jurisdiction. In support of the
motion, it was contended that this Court had no jurisdiction
because of the character of the respondent independent of the
nature of the suit and because of the nature of the suit
independent of the character of the respondent. It was not denied
that Massachusetts had agreed, by adopting the federal
Constitution, to submit her controversies with other states to
judicial decision, but it was claimed that Congress had passed no
law establishing a mode of proceeding, the character of the
judgment to be rendered, and means of enforcing it. As respects the
nature of the suit, it was argued that it was in its character
political, brought by a sovereign in that avowed character; that
the judicial power of the United States extended, by the
Constitution, only to cases of law and equity,
Page 180 U. S. 226
and that questions of jurisdiction over territory were not cases
of that kind, nor of "a civil nature."
The court held that jurisdiction was conferred by the
Constitution and the Judiciary Act, and that, as Massachusetts had
appeared, submitted to the process, and pleaded in bar of the
plaintiff's action certain matters on which the judgment of the
Court was asked, all doubts as to jurisdiction over the parties
were at rest.
As respected the power of the Court to hear and determine the
subject matters of the suit, it was held that jurisdiction existed;
that the dispute was a controversy between two states within the
judicial power of the United States.
37 U. S. 12 Pet.
657;
38 U. S. 13 Pet.
23.
Before leaving this case, it is to be remarked that the
principal contest was as to whether a question of boundary,
involving as it did the question of sovereignty over territory, was
a judicial question of a civil nature. The implication was that the
controversies between two or more states in which jurisdiction had
been granted by the Constitution did not include questions of a
political character. In some of the later cases, the contention has
been the very opposite -- that the intention of the Constitution
was only to apply to questions in which the sovereign and political
powers of the respective states were in controversy.
In
Florida v. Georgia, 11 How. 293 [memorandum opinion
-- omitted], leave was given by this Court to the State of Florida
to file a bill against the State of Georgia, and process of
subpoena was directed to be issued against the State of Georgia.
The object of the bill was to ascertain and establish the boundary
between the two states, which was in controversy. The State of
Georgia answered and the cause was proceeded in in pursuance of the
prayers of the bill. Subsequently an application was made by the
Attorney General of the United States, alleging that the latter
were interested and concerned in the matter in controversy, and
moving the court that he be permitted to appear in the case and be
heard in behalf of the United States in such time and form as the
Court should order. This motion was opposed by the states, and the
matter was argued at length. The
Page 180 U. S. 227
judges differed, but neither in the opinion of the majority
granting the motion of the Attorney General nor in that of the
dissenting minority was any doubt expressed of the existence of the
jurisdiction of the Court over the controversy between the two
states.
Pennsylvania v. Wheeling &
Belmont Bridge Company, 9 How. 647;
Same v. Same,
11 How. 528;
Same v. Same,
13 How. 518;
Same v.
Same, 18 How. 429, was a case in equity, in which
the State of Pennsylvania filed a bill against the Wheeling and
Belmont Bridge Company, a corporation of Virginia, and certain
contractors, charging that the defendants, under color of an act of
the Legislature of Virginia, were engaged in the construction of a
bridge across the Ohio River at Wheeling which would, as was
alleged, obstruct its navigation to and from the ports of
Pennsylvania by steamboats and other crafts which navigated the
same. Many different questions were discussed by counsel and
considered by the Court respecting the nature and extent of the
jurisdiction of this Court, the right of the complainant state,
whether at law or in equity, and the character of the decree which
could be rendered. Several observations made in the opinion of the
Court will be hereafter adverted to when we come to consider the
second ground of demurrer urged in the case before us. It is
sufficient for our present purpose to say that the original
jurisdiction of the Court was sustained, a commissioner was
appointed to take and report proofs, and a decree was entered
declaring the bridge to be an obstruction of the free navigation of
the river, that thereby a special damage was occasioned to the
plaintiff for which there was not an adequate remedy at law, and
directing that the obstruction be removed either by elevating the
bridge to a height designated or by abatement.
South Carolina v. Georgia, 93 U. S.
4, was a suit in equity brought in this Court whereby
the State of South Carolina sought an injunction to restrain the
State of Georgia, the United States Secretary of War, the Chief
Engineer of the United States Army, their agents and subordinates,
from obstructing the navigation of the Savannah River in violation
of an alleged compact subsisting between the States of South
Carolina and
Page 180 U. S. 228
Georgia, and which had been entered into on April 24, 1787. This
Court, not denying, but assuming, jurisdiction in the case, held
that, by adopting the federal Constitution, and thereby delegating
to the general government the right to regulate commerce with
foreign nations and among the several states, the compact between
the two states in respect to the Savannah River ceased to operate,
and that the acts complained of, being done in pursuance of
congressional authority and designed to improve navigation, could
not be deemed an illegal obstruction, and accordingly the special
injunction previously granted was dissolved and the bill
dismissed.
Wisconsin v. Duluth, 96 U. S. 381,
was the case of a bill in chancery filed in this Court by the State
of Wisconsin by virtue of the constitutional provision which
confers original jurisdiction of suits between the states and
between a state and citizens of other states. The City of Duluth, a
corporation and citizen of the State of Minnesota, was defendant,
and, after answer, replication, and the taking of a large amount of
evidence, the case came on for a final decree. The nature of the
case and the reasoning upon which this Court proceeded in disposing
of it will sufficiently appear in the following quotations from the
opinion delivered by Mr. Justice Miller:
"The present suit was brought by the State of Wisconsin on the
ground that the channel of the St. Louis River, as it flowed in a
state of nature, was the common boundary between that state and the
State of Minnesota, and that she has an interest in the continuance
of the channel as an important highway for navigation and commerce
in its natural and usual course; that the canal cut by Duluth
across Minnesota Point, deeper than the natural outlet of the St.
Louis River at its mouth, has diverted and will continue to divert
the current of that river through Superior Bay into the lake by way
of that canal; that the result of this is that, while the current
cuts that canal deeper and gives an outlet for the water there at a
lower level, it at the same time, by diverting this current from
the old outlet, causes it to fill up, and thus destroys the
usefulness of the river and bay as an aid of commerce, on which the
state had a right to rely. The bill, after reciting the facts which
we have already detailed,
Page 180 U. S. 229
insists that the City of Duluth cannot, by any right of her own
nor by any authority conferred on her by the State of Minnesota,
thus divert the waters of the stream -- the St. Louis River -- from
their natural course to the prejudice of the rights of the State of
Wisconsin or of her citizens, declares that this canal at Duluth
does this in violation of law, and it prays of this Court to enjoin
Duluth from protecting or maintaining it, and by way of mandatory
injunction to compel that city to fill up the canal and restore
things in that regard to the condition of nature in which they were
before the canal was made."
"The answer, while admitting the construction of the canal,
denies almost every other material allegation of the bill. It
denies especially that the canal has the effect of changing the
course of the current of the river, or does any injury to the
southern entrance to Superior Bay, or diminishes the flow of water
at that point. A large amount of testimony, professional and
nonprofessional, is presented on that subject."
"The answer also sets up as an affirmative defense to the relief
sought by the bill that the United States, by the legislative and
executive departments of the government, have approved of the
construction of the canal, have taken possession and control of the
work, have appropriated and spent money on it and adopted it as the
best mode of making a safe and accessible harbor at the western end
of the great system of lake navigation."
"Many interesting questions have been argued, and ably argued,
by counsel which we have not found it necessary to decide. The
counsel for defense deny that the State of Wisconsin has any such
legal interest in the flow of the waters in their natural course as
authorizes her to maintain a suit for their diversion. It is argued
that this Court can take cognizance of no question which concerns
alone the rights of a state in her political or sovereign
character; that, to sustain this suit, she must have some
proprietary interest which is affected by the defendant. This
question has been raised and discussed in almost every case brought
before us by a state in virtue of the original jurisdiction of the
court. We do not find it necessary to make any decision on the
point as applicable to the case before
Page 180 U. S. 230
us. Nor shall we address ourselves to the consideration of the
mass of conflicting evidence as to the effect of the canal on the
flow of the waters of Superior Bay."
"We will first consider the affirmative defense already
mentioned, for, if that be found to be true in point of fact, it
will preclude any such action by this Court as the plaintiff has
prayed for."
The Court then proceeded to inquire into the action of the
general government in the matter of the canal in question, and
found that, as matter of fact, the United States had taken
possession and control of the canal as a public work. The opinion
concluded as follows:
"If, then, Congress, in the exercise of a lawful authority, has
adopted and is carrying out a system of harbor improvements at
Duluth, this Court can have no lawful authority to forbid the work.
If that body sees fit to provide a way by which the great commerce
of the lakes and the countries west of them, even to Asia, shall be
securely accommodated at the harbor of Duluth by this short canal
of three or four hundred feet, can this Court decree that it must
forever pursue the old channel by the natural outlet, over water
too shallow for large vessels, unsafe for small ones, and by a
longer and much more tedious route?"
"When Congress appropriates $10,000 to improve, protect, and
secure this canal, this Court can have no power to require it to be
filled up and obstructed. While the engineering officers of the
government are, under the authority of Congress, doing all they can
to make this canal useful to commerce and to keep it in good
condition, this Court can owe no duty to a state which requires it
to order the City of Duluth to destroy it."
"These views show conclusively that the State of Wisconsin is
not entitled to the relief asked by her bill, and that it must
therefore be dismissed with costs."
The Court therefore did not decline jurisdiction, but exercised
it by inquiring into the facts put in issue by the bill and answer
and by dismissing the bill for want of equity.
In
Virginia v. West
Virginia, 11 Wall. 39, a bill was filed in this
Court to settle the boundaries between the two states.
Page 180 U. S. 231
There was a demurrer to the bill. In delivering the opinion of
the Court, Mr. Justice Miller said:
"The first proposition on which counsel insist in support of the
demurrer is that this Court has no jurisdiction of the case because
it involves the consideration of questions purely political -- that
is to say that the main question to be decided is the conflicting
claims of the two states to the exercise of political jurisdiction
and sovereignty over the territory and inhabitants of the two
counties which are the subject of dispute. 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."
And, after citing
Rhode Island v.
Massachusetts, 12 Pet. 724;
Missouri
v. Iowa, 7 How. 660;
Florida v.
Georgia, 17 How. 478, and
Alabama v.
Georgia, 23 How. 505, the conclusion of the Court
was thus expressed:
"We consider, therefore, 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
territorial limits of the political jurisdiction and sovereignty of
the states which are parties to the proceeding."
In
New Hampshire v. Louisiana and
New York v.
Louisiana, 108 U. S. 76, it
was found that, in view of the Eleventh Amendment to the
Constitution of the United States, declaring that
"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 and subjects of any foreign state,"
as matter of fact, under the pleadings and testimony, the suits
were commenced and were prosecuted solely by the owners of the
bonds and coupons to collect which was the object of the suits, and
it was accordingly held that
"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
Page 180 U. S. 232
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 state to its citizens. Such
being the case, we are satisfied that we are prohibited, both by
the letter and the spirit of the Constitution, from entertaining
these suits, and the bill in each case is dismissed."
In
Wisconsin v. Pelican Insurance Company, 127 U.
S. 265, the nature of the case and of the question
involved was thus stated by Mr. Justice Gray, in delivering the
opinion of the Court:
"This action is brought upon a judgment recovered by the State
of Wisconsin in one of her own courts against the Pelican Insurance
Company, 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 that statute. The leading
question argued at the bar is whether such an action is within the
original jurisdiction of this Court."
"The ground on which the jurisdiction is invoked is not the
nature of the cause, but the character of the parties, the
plaintiff being one of the states of the Union and the defendant a
corporation of another of those states."
After citing and considering the cases, the Justice expressed
the following conclusions:
"The rule that the courts of no country execute the penal laws
of another applies not only to prosecutions and sentences for
crimes and misdemeanors, but to all suits in favor of the state for
the recovery of pecuniary penalties for any violation of statutes
for the protection of its revenue or other municipal laws, and to
all judgments for such penalties. . . . From the first organization
of the courts of the United States nearly a century ago, it has
always been assumed that the original jurisdiction of this Court
over controversies between a state and citizens of another state or
of a foreign country does not extend to a suit by a state to
recover penalties for a breach of her own municipal law. . . . The
statute of Wisconsin, under which the state recovered in one of her
own courts the
Page 180 U. S. 233
judgment now and here sued on, was in the strictest sense a
penal statute, imposing a penalty upon any insurance company of
another state doing business in the State of Wisconsin without
having deposited with the proper officer of the state a full
statement of its property and business during the previous year. .
. . The cause of action was not any private injury, but solely the
offense committed against the state by violating her law. . . .
This Court therefore cannot entertain an original action to compel
the defendant to pay to the State of Wisconsin a sum of money in
satisfaction of the judgment for that fine."
And consequently judgment was entered for the defendant on the
demurrer that had been interposed to the declaration.
Hans v. Louisiana, 134 U. S. 1, was an
action brought in the Circuit Court of the United States for the
Eastern District of Louisiana against the State of Louisiana by
Hans, a citizen of that state, to recover the amount of certain
coupons annexed to bonds of the state. The circuit court, on motion
of the attorney general of the state, dismissed the case for want
of jurisdiction. This Court affirmed the judgment of the circuit
court and held that the judicial power of the United States did not
extend to the case of a suit brought against a state by one of its
own citizens.
In the course of the opinion, delivered by Mr. Justice Bradley,
the following observations were made:
"The truth is that the cognizance of suits and actions unknown
to the law, and forbidden by the law, was not contemplated by the
Constitution when establishing the judicial power of the United
States. Some things, undoubtedly, were made 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. And yet the case of
Penn v. Lord Baltimore, 1 Vesey Sr. 444, shows that some
of these unusual subjects of litigation were not unknown to the
courts even in colonial times, and several cases of the same
general character arose under the Articles of Confederation, and
were brought before the tribunal provided for that purpose in those
articles. 131 U.S. App. 1. The establishment of this new branch of
jurisdiction seemed to be
Page 180 U. S. 234
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
Insurance Company, 127 U. S. 265,
127 U. S.
288-289, and cases there cited."
The last case which we have had occasion to examine is that of
Louisiana v. Texas, 176 U. S. 1,
176 U. S. 15. The
case was brought before us by a bill in equity filed by the State
of Louisiana against the State of Texas, her Governor, and her
health officer. The bill 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 and 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 business rivals of the City
of New Orleans, and 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 an embargo against interstate commerce between the
State of Louisiana, or any part thereof, and the State of Texas, or
the right to make discriminative rules affecting the State of
Louisiana, or any part thereof, and different from and more
burdensome than the quarantine rules and regulations applied to
other states and countries, and the bill asked for an injunction
restraining the Texas officials from enforcing the Texas laws in
the manner in which they were enforced. To this bill a demurrer was
filed, assigning 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
Page 180 U. S. 235
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. 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."
In the opinion of the Court, delivered by MR. CHIEF JUSTICE
FULLER, after a consideration of the cases hereinbefore mentioned
and of others, it was said:
"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 the 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 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. . . ."
"Controversies between them arising out of public relations and
intercourse cannot be settled either by war or diplomacy,
Page 180 U. S. 236
though, with the consent of Congress, they may be composed by
agreement. . . ."
"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 would 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. . . ."
"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
Page 180 U. S. 237
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."
After quoting the provisions of the statute of the State of
Texas regulating the subject of quarantine, the Chief Justice
proceeded to say:
"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. . . . 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. "
Page 180 U. S. 238
"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. Where 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."
"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."
Accordingly, the demurrer was sustained and bill dismissed.
From the language of the Constitution and from the cases in
which that language has been considered, what principles may be
derived as to the nature and extent of the original jurisdiction of
this Court in controversies between two or more states?
Page 180 U. S. 239
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.
Chief Justice Marshall, in the case of
Cohen v.
Virginia, 6 Wheat. 264,
19 U. S. 392,
said:
"The Constitution gives the Supreme Court original jurisdiction
in certain enumerated cases and gives it appellate jurisdiction in
all others. Among those in which jurisdiction must be exercised in
the appellate form are cases arising under the Constitution and
laws of the United States. These provisions of the Constitution are
equally obligatory, and are to be equally respected. If a state be
a party, the jurisdiction of this Court is original; if the case
arise under a constitution or a law, the jurisdiction is appellate.
But a case to which a state is a party may arise under the
Constitution or a law of the United States. What rule is applicable
to such a case? What, then, becomes the duty of the court?
Certainly, we think, so to construe the Constitution as to give
effect to both provisions as far as it is possible to reconcile
them, and not to permit their seeming repugnancy to destroy each
other. We must endeavor so to construe them as to preserve the true
intent and meaning of the instrument."
"In one description of cases, the jurisdiction of the Court is
founded entirely on the character of the parties, and the nature of
the controversy is not contemplated by the Constitution. The
character of the parties is everything, the nature of the case
nothing. In the other description of cases, the jurisdiction is
founded entirely on the character of the case, and the parties are
not contemplated by the Constitution. In these, the nature of the
case is everything, the character of the parties nothing. When,
then, the Constitution declares the jurisdiction, in cases where a
state shall be a party, to be original, and in all cases
Page 180 U. S. 240
arising under the Constitution or a law to be appellate, the
conclusion seems irresistible that its framers designed to include
in the first class those cases in which jurisdiction is given
because a state is a party, and to include in the second those in
which jurisdiction is given because the case arises under the
Constitution or a law."
But it must be conceded that, upon further consideration, in
cases arising under different states of facts, the general language
used in
Cohen v. Virginia has been to some extent
modified. Thus, in the cases of
New Hampshire v. Louisiana
and
New York v. Louisiana, 108 U. S.
76, jurisdiction was denied to this Court where the
cause of action belonged to private persons who were endeavoring to
use the name of one state to enforce their rights of action against
another, though perhaps it may be said that jurisdiction was really
entertained, and that the bills were dismissed because the Court
found that, under the pleadings and testimony, the states
complainant had no interest of any kind in the proceedings.
So, too, in
Wisconsin v. Pelican Insurance Company, ut
supra, the Court held that, notwithstanding the action was
brought by a state against the citizens of another state, and was
thus within the letter of the Constitution, yet that the court had
a right to inquire into the nature of the case, and, when it found
that the object of the suit was to enforce the penal laws of one
state against a citizen of another, to refuse to exercise
jurisdiction.
In the case of
Louisiana v. Texas, 176 U. S.
1, the bill was dismissed because a controversy between
the two states was not actually presented; that what was complained
of was not any action of the State of Texas, but the alleged
unauthorized conduct of its health officer, acting with a
malevolent purpose against the City of New Orleans. Here again it
may be observed that the Court did not decline jurisdiction, but
exercised it in holding that the facts alleged in the bill did not
justify the Court in granting the relief prayed for.
The cases 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
Page 180 U. S. 241
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.
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, the 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.
The allegations of the bill plainly present such a case. The
health and comfort of the large communities inhabiting those parts
of the state situated on the Mississippi River are not alone
concerned, but contagious and typhoidal diseases introduced in the
river communities may spread themselves throughout the territory of
the state. Moreover, substantial impairment of the health and
prosperity of the towns and cities of the state situated on the
Mississippi River, including its commercial metropolis, would
injuriously affect the entire state.
That suits brought by individuals, each for personal injuries
threatened or received, would be wholly inadequate and
disproportionate remedies requires no argument.
It is further contended in support of the demurrer that even if
the State of Missouri be the proper party to file such a bill, yet
that the proper defendant is the Sanitary District of Chicago
solely, and that the State of Illinois should not have been made a
party, and that, as to her, the demurrer ought to be sustained.
Page 180 U. S. 242
It can scarcely be supposed, in view of the express provisions
of the Constitution and of the cited cases, that it is claimed that
the State of Illinois is exempt from suit because she is a
sovereign state which has not consented to be sued. The contention
rather seems to be that, because the matters complained of in the
bill proceed and will continue to proceed from the acts of the
Sanitary District of Chicago, a corporation of the State of
Illinois, it therefore follows that the state, as such, is not
interested in the question, and is improperly made a party.
We are unable to see the force of this suggestion. The bill does
not allege that the sanitary district is acting without or in
excess of lawful authority. The averment and the conceded facts are
that the corporation is an agency of the state to do the very
things which, according to the theory of the complainant's case,
will result in the mischief to be apprehended. It is state action
and its results that are complained of, thus distinguishing this
case from that of
Louisiana v. Texas, where the acts
sought to be restrained were alleged to be those of officers or
functionaries proceeding in a wrongful and malevolent
misapplication of the quarantine laws of Texas. The Sanitary
District of Chicago is not a private corporation formed for
purposes of private gain, but a public corporation whose existence
and operations are wholly within the control of the state.
The object of the bill is to subject this public work to
judicial supervision upon the allegation that the method of its
construction and maintenance will create a continuing nuisance
dangerous to the health of a neighboring state and its inhabitants.
Surely in such a case the State of Illinois would have a right to
appear and traverse the allegations of the bill, and, having such a
right, might properly be made a party defendant.
It is further contended that even if this Court has original
jurisdiction of the subject matter, and even if the respective
states have been properly made parties, yet the case made out by
the bill does not entitle the State of Missouri to the equitable
relief prayed for.
This proposition is sought to be maintained by several
considerations. In the first place it is urged that the drawing by
artificial means of the sewage of the City of Chicago into the
Page 180 U. S. 243
Mississippi River may or may not become a nuisance to the
inhabitants, cities, and towns of Missouri; that the injuries
apprehended are merely eventual or contingent, and may in fact
never be inflicted. Can it be gravely contended that there are no
preventive remedies, by way of injunction or otherwise, against
injuries not inflicted or experienced, but which would appear to be
the natural result of acts of the defendant which he admits or
avows it to be his intention to commit?
The bill charges that the acts of the defendants, if not
restrained, will result in the transportation, by artificial means
and through an unnatural channel, of large quantities of
undefecated sewage daily, and of accumulated deposits in the harbor
of Chicago and in the bed of the Illinois River, which will poison
the water supply of the inhabitants of Missouri and injuriously
affect that portion of the bed or soil of the Mississippi River
which lies within its territory.
In such a state of facts, admitted by the demurrer to be true,
we do not feel it necessary to enter at large into a discussion of
this part of the defendants' contention, but think it sufficient to
cite one or two authorities.
Attorney General v. Jamaica Pond Aqueduct Corporation,
133 Mass. 361, was a proceeding in equity in the Supreme Judicial
Court to enjoin the defendants from lowering the water in one of
the public ponds of Massachusetts. It was claimed that the
necessary effect of such lowering would be to impair the rights of
the people in the use of the pond for fishing, boating, and other
lawful purposes, and to create and expose upon the shores of the
pond a large quantity of slime, mud, and offensive vegetation
detrimental to the public health. The defendants demurred, claiming
that no case was stated which came within the equity jurisdiction
of the court, and questioning the power of the attorney general, on
behalf of the commonwealth, to maintain the proceedings. Speaking
for the court, the Chief Justice said:
"The cases are numerous in which it has been held that the
attorney general may maintain an information in equity to restrain
a corporation, exercising the right of eminent domain under a power
delegated to it by the legislature, from any abuse
Page 180 U. S. 244
or perversion of the powers which may create a public nuisance
or injuriously affect or endanger the public interests,"
citing many cases, and proceeding:
"The information in this case alleges not only that the
defendant is doing acts which are
ultra vires and an abuse
of the power granted to it by the legislature, but also that the
necessary effect of such acts will be to create a public nuisance.
This brings the case within the established principle that the
court has jurisdiction in equity to restrain and prevent nuisances.
And when the nuisance is a public one, an information by the
attorney general is the appropriate remedy. . . . This information
therefore can be sustained on the ground that the unlawful acts of
the defendant will produce a nuisance by partially draining the
pond and exposing its shores, thus endangering the public
health."
And replying to the claim that resort to equity was unnecessary,
the court further said:
"The defendant contends that the law furnishes a plain,
adequate, and complete remedy for this nuisance by an indictment or
by proceedings under the statutes for the abatement of the nuisance
by the board of health. Neither of these remedies can be invoked
until a part of the mischief is done, and they could not, in the
nature of things, restore the pond, the land, and the underground
currents to the same condition in which they are now. In other
words, they could not remedy the whole mischief. The preventive
force of a decree in equity, restraining the illegal acts before
any mischief is done, gives clearly a more efficacious and complete
remedy."
The nature of equitable remedy in the case of public nuisances
was well described by MR. JUSTICE HARLAN, speaking for the Court in
the case of
Mugler v. Kansas, 123 U.
S. 623,
123 U. S.
673:
"The ground of this jurisdiction, in cases of purpresture as
well as of public nuisances, is the ability of courts of equity to
give a more speedy, effectual, and permanent remedy than can be had
at law. They can not only prevent nuisances that are threatened,
and before irreparable mischief ensues, but arrest or abate those
in progress, and by perpetual injunction protect the public against
them in the future; whereas courts of law
Page 180 U. S. 245
can only reach existing nuisances, leaving future acts to be the
subjects of new prosecutions or proceedings. This is a salutary
jurisdiction, especially where a nuisance affects the health,
morals, or safety of the community."
In
Coosaw Mining Co. v. South Carolina, 144 U.
S. 550, it was said by this Court, through MR. JUSTICE
HARLAN, after citing English and American cases:
"Proceedings at law or by indictment can only reach past or
present wrongs done by the appellant, and will not adequately
protect the public interests in the future. What the public are
entitled to have is security for all time against illegal
interference with the control by the state of the digging, mining,
and removing of phosphate rock and phosphatic deposits in the bed
of Coosaw River."
It is finally contended that if the bill was not prematurely
filed, then it was filed too late; that, by standing by for so long
a period, the complainant was guilty of such laches that a court of
equity will not grant relief.
The inconsistency between these contentions is manifest, and, on
consideration, we are of opinion that the suggestion that the
complainants' remedy has been lost by delay is not founded in fact
or reason.
In
Goldsmid v. Tunbridge Wells Commissioners, L.R. 1
Eq. 161, answering a similar contention, it was said, by Romilly,
M.R.:
"If he [the plaintiff] comes to the court and complains very
early, then the evidence is that 'it [the pollution] is not
perceptible' -- 'it is wholly inappreciable' -- and you get
evidence after evidence for the defendants (the pollution being
slight and perhaps only observable at some times and on some
occasions), saying: 'You have no proof at all that there is any
appreciable pollution, and you must wait until it becomes a
nuisance.' Then he waits for five or six years, until it is obvious
to everybody's sense that the pollution is considerable, and then
they say,"
"You have come too late, you have allowed this to go on for
twenty years, and we have acquired an easement over your property,
and the right of pouring the sewage into it."
"My opinion is that any person who has a watercourse flowing
through his
Page 180 U. S. 246
land, and sewage which is perceptible is brought into that
watercourse, has a right to come here to stop it, and that, when
the pollution is increasing, and gradually increasing from time to
time, by the additional quantity of sewage poured into it, the
persons who allow the polluted matter to flow into the stream are
not at liberty to claim any right or prescription against him."
"This is a matter of very great importance, and it has been
suggested to me in argument as a matter that ought to be regarded
that private interests must give way to public interests; that the
court ought to regard what the advantage to the public is, and that
some little sacrifice ought to be made by private individuals. I do
not assent to that view of the law on the subject, and I apprehend
that the observations which were quoted to me of Vice Chancellor
Sir William Page Wood, in
Attorney General v. Mayor of
Kingston, 13 W.R. 888, are perfectly accurate, and that
private rights are not to be interfered with. But my firm
conviction is that in this, as in all the great dispensations and
operations of nature, the interests of individuals are not only
compatible with, but identical with, the interests of the public,
and although in this case I have only to consider an injury to a
private individual -- the plaintiff on the present occasion -- yet
I believe that the injury to the public may be extremely great by
polluting a stream which flows for a considerable distance, the
water of which cattle are in the habit of drinking, the exhalations
from which persons who reside on the banks must necessarily inhale,
and this at a time when the attention of the public and the court
is necessarily called to the fact that the most scientific men who
have examined the subject are unable to say whether great diseases
among cattle and contagious diseases affecting human beings, such
as cholera and typhus and the like, may not in a great measure be
communicated or aggravated by the absorption of particles of
feculent matter into the system which are either inappreciable or
scarcely appreciable by the most minute chemical analysis. It is
impossible in that state of things to say what amount of injury may
be done by polluting even partially a stream which flows a
considerable distance. . . . I am of opinion
Page 180 U. S. 247
that Mr. Goldsmid was not bound to remain quiet until this
stream had become such a nuisance that it was obvious to everybody
near its banks, and the result is that . . . he is entitled to a
decree for an injunction to restrain the defendants from causing or
permitting the sewage and other offensive matters draining from the
Town of Tunbridge Wells to be discharged into the Calverly Brook,
or stream, in such manner as injuriously to affect the water of the
brook as it flows through the plaintiff's land."
This decree of the Master of the Rolls was subsequently affirmed
on appeal. L.R. 1 Ch. 349.
Similar views prevailed in
Chapman v. Rochester, 110
N.Y. 273, where a bill was filed to enjoin the defendant city from
polluting, by the discharge of sewage by artificial means, a
natural stream flowing through his lands.
In the opinion of the New York Court of Appeals, it was said by
Danforth, J., after citing
Goldsmid v. Tunbridge
Wells:
"In view of the principle upon which these and like decisions
turn, the objections of the learned counsel for the defendant
against the judgment appealed from are quite unimportant. The filth
of the city does not flow naturally to the lands of the plaintiff,
as surface water finds its level, but is carried thither by
artificial arrangements prepared by the city, and for which it is
responsible. Nor is the plaintiff estopped by acquiescence in the
proceedings of the city in devising and carrying out its system of
sewerage. The principle invoked by the appellant has no
application. It does not appear that the plaintiff in any way
encouraged the adoption of that system, or by any act or word
induced the city authorities to so direct the sewers that the flow
from them should reach his premises. There is no finding to that
effect, and the record contains no evidence. In fine, the case
comes within the general rule which gives to a person injured by
the pollution of air or water, to the use of which, in its natural
condition, he is entitled, an action against the party, whether it
be a natural person or corporation who causes that pollution."
Cases cited by defendants' counsel where injunctions were
refused to aid in the suppression of public nuisances were cases
where the act complained of was fully completed, and where
Page 180 U. S. 248
the nuisance was not one resulting from conduct repeated from
day to day. Most of them were cases of purpresture, and concerned
permanent structures already existing when courts in equity were
appealed to.
The bill in this case does not assail the drainage canal as an
unlawful structure, nor aim to prevent its use as a waterway. What
is sought is relief against the pouring of sewage and filth through
it, by artificial arrangements, into the Mississippi River, to the
detriment of the State of Missouri and her inhabitants, and the
acts are not merely those that have been done, or which, when done,
cease to operate, but acts contemplated as continually repeated
from day to day. The relief prayed for is against not merely the
creation of a nuisance, but against its maintenance.
Our conclusion, therefore, is that the demurrers filed by the
respective defendants cannot be sustained. We do not wish to be
understood as holding that, in a case like the present one, where
the injuries complained of grow out of the prosecution of a public
work authorized by law, a court of equity ought to interpose by way
of preliminary or interlocutory injunction when it is denied by
answer that there is any reasonable foundation for the charges
contained in the bill. We are dealing with the case of a bill
alleging in explicit terms that damage and irreparable injury will
naturally and necessarily be occasioned by acts of the defendants,
and where the defendants have chosen to have their rights disposed
of, so far as the present hearing is concerned, upon the assertions
of this bill.
We fully agree with the contention of defendants' counsel that
it is settled that an injunction to restrain a nuisance will issue
only in cases where the fact of nuisance is made out upon
determinate and satisfactory evidence; that, if the evidence be
conflicting and the injury be doubtful, that conflict and doubt
will be a ground for withholding an injunction, and that, where
interposition by injunction is sought to restrain that which it is
apprehended will create a nuisance of which its complainant may
complain, the proofs must show such a state of facts as will
manifest the danger to be real and immediate.
Page 180 U. S. 249
But such observations are not relevant to the case as it is now
before us.
The demurrers are overruled, and leave is given to the
defendants to file answers to the bill.
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN
and MR. JUSTICE WHITE, dissenting:
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 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.
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 would 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.
Assuming that a bill could be maintained against the
sanitary
Page 180 U. S. 250
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.
My brothers HARLAN and WHITE concur with me in this dissent.
