Controversies between two or more states, etc.

96. The phrases "controversies between two or more states . . between citizens of the same state claiming lands under grants of different states' seem to be unambiguous. The cases of suits between states have been mainly controversies as to conflicting boundaries,35 and in these cases there is no doubt as to the jurisdiction. In 1790 it was assumed 36 that the courts had jurisdiction of a bill filed by one state against another state and grantees of that other state to enjoin ejectment suits by those grantees with regard to land, political jurisdiction over which was claimed by both states, but judgment was entered in favour of the defendant state on the ground that the plaintiff state had no property interest in the determination of the ejectment suits. It has since been held that a state cannot, upon an allegation of a violation of an interstate compact, enjoin another state and officers of the United States from diverting the water of a navigable river as a result of an improvement of navigation under congressional authority; 37 nor can a state in a suit against a municipality of another state, enjoin an improvement of navigation because of an apprehended diversion of trade from one of its municipalities to the defendant municipality; 38 nor can a state having assumed the collection of a debt due to one of its citizens by another state sue in its own name that other state; 39 nor can a state in an action

New Jersey v. New York, 5 Pet. 284; Rhode Island v. Massachusetts, 12 id. 657, 724; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 11 id. 293, 17 id. 478; Alabama v. Georgia, 23 id. 505; Virginia v. West Virginia, 11 Wall. 39; Indiana v. Kentucky, 136 U. S. 479; Nebraska v. Iowa, 145 id. 519; Iowa v. Illinois, 147 id. 1; Virginia v. Tennessee, 148 id. 503; Tennessee v. Virginia, 177 id. 501.

"New York v. Connecticut, 4 Dall. 1.

"South Carolina v. Georgia, 93 U. S. 4.

Wisconsin v. Duluth, 96 U. S. 379.

"New Hampshire v. Louisiana, 108 U. S. 76; cf. South Dakota v. North Carolina, 192 id. 286.

against a corporation organized under the laws of another state invoke the exercise of the original jurisdiction of the Supreme Court to compel the payment of a penalty for a violation of the law of the plaintiff state; 40 nor enjoin the enforcement of the laws of another state upon an allegation that those laws, if executed, will build up the commerce of cities of the defendant state to the injury of the commerce of the plaintiff state."1 On the other hand, a state may invoke the original jurisdiction of the court by a bill against another state and a sanitary agency thereof to enjoin the discharge of sewage into a river flowing through the plaintiff state,42 the ground of decision being that the relief prayed is the abatement of a nuisance injurious to the health of citizens of the plaintiff state, which can properly sue as parens patriæ. So also a bill may be filed by a state on behalf of her citizens, as well as in vindication of her rights as an individual owner, to restrain another state from depriving it of the waters of a river accustomed to flow through and across its territory, and the consequent destruction of the property of herself and her citizens, and injury to their health and comfort.43 The original jurisdiction extends to a suit by a state as the donee of certain bonds issued by another state, and secured by a mortgage of railroad stock belonging to the latter state, to compel payment of the bonds and a subjection of the mortgaged property to the satisfaction of the debt. And that jurisdiction also extends to an action by a state against an officer of the United States,

40 Wisconsin v. P. I. Co., 127 U. S. 265.

"Louisiana v. Texas, 176 U. S. 1, 17, 18.

42

Missouri v. Illinois, 180 U. S. 208; Fuller, C. J., and Harlan and White, JJ., dissented.

43 Kansas v. Colorado, 185 U. S. 125.

South Dakota v. North Carolina, 192 U. S. 286; White, J., Fuller, C. J., and McKenna and Day, JJ., dissented.

where the United States is the real party in interest adverse to the state.1

45

It has, however, been held that as the United States "has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it," a state cannot, by a suit against the governor of another state, compel the performance of a "duty" by an officer of that other state, for "there is no power delegated to the general government, either through the judicial department, or any other department, to use any coercive means to compel him." 46 An Indian tribe within the United States, being a "domestic dependent nation," and not a state, cannot bring suit against a state under this clause of the Constitution.47

.

Controversies between a state and citizens of another state, etc.

97. The clauses of the constitutional provision, giving jurisdiction to the courts of the United States in "controversies. . . between a state and citizens of another state and between a state or the citizens thereof, and foreign states, citizens, or subjects," were, at an early day in the history of the government, the subject of much controversy. There has never been much question as to the jurisdiction in causes in which a state was the plaintiff; " in such cases it has been denied only in an action to recover on a judgment for a penalty for a violation of municipal law, and in actions in which it was necessary to join citizens of the plaintiff state as parties defendant; 50 but the jurisdiction was earnestly contested in cases in which

49

48

"Minnesota v. Hitchcock, 185 U. S. 373. See U. S. v. Michigan, 190 id.

396.

* Kentucky v. Dennison, 24 How. 66.

47 The Cherokee Nation v. Georgia, 5 Pet. 1.

8 Texas v. White, 7 Wall. 700.

"Wisconsin v. P. I. Co., 127 U. S. 265.

California v. S. P. Co., 157 U. S. 229; Minnesota v. N. S. Co., 184 id. 199.

a state was defendant and citizens of other states were plaintiffs. In 1792 the Supreme Court of the United States, in Chisholm v. Georgia,51 the cause being an action of assumpsit brought by a citizen of South Carolina against the state of Georgia, sustained the original jurisdiction of the Supreme Court in suits by a citizen of one state against another state. In consequence of that judgment, and for the purpose of relieving the states from liability to suits to enforce the payment of their obligations,52 the XI Article of the Amendments to the Constitution was adopted.53

Federal jurisdiction.

98. The jurisdiction of the courts of the United States is, in its character, either civil or criminal, and, in its exercise, either exclusive of, or concurrent with, the jurisdiction of the courts of the states, and either original or appellate, first, by appeal from a federal court of original jurisdiction to a federal court of intermediate, and thence to the federal court of final, appeal; or second, by appeal directly from the federal court of original jurisdiction to the federal court of final appeal; or third, by appeal from a state court of last resort to the federal court of final appeal. The courts of the United States also exercise a supervisory jurisdiction, over the courts of the states by the removal therefrom, before trial, of certain causes of federal cognizance,54 and a general supervisory jurisdiction which may be invoked by a petition for a writ of habeas corpus, whenever a person is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court, or a judge

51 2 Dall. 419.

62 Cohens v. Virginia, 6 Wheat. 406.

5 Infra, Section 115.

Infra, Section 102.

thereof, or is in custody in violation of the Constitution, or a law or treaty of the United States.55

As the courts of the United States are courts of limited jurisdiction, the record must show affirmatively that the cause is necessarily of federal cognizance, by reason of either the subject-matter of litigation,56 or the character of the parties,57 and this must be formally averred,58 or distinctly appear on the face of the record.59 If the jurisdictional fact does appear on the face of the record, it can only be traversed by a plea to the jurisdiction." There is a conclusive presumption of law that a corporation and all its members are citizens of the state creating the corporation 61 and that a national bank is a citizen of the state within which it is located.62

60

"Rev. Stat., secs. 753, 761; In re Neagle, 135 U. S. 1; In re Loney, 134 id. 372; Medley, Petitioner, ibid. 160; In re Frederich, 149 id. 70; Ohio v. Thomas, 173 id. 276; Boske v. Comingore, 177 id. 459; cf. Storti v. Massachusetts, 183 id. 138.

5 Lawler v. Walker, 14 How. 149; Osborn v. Bank of the United States, 9 Wheat. 738, 823; Mills v. Brown, 16 Pet. 525; R. Co. v. Rock, 4 Wall. 177, 180; Tennessee v. Union & Planters' Bank, 152 U. S. 454; Chappell v. Waterworth, 155 id. 102; P. T. C. Co. v. Alabama, ibid. 482; E. L. L. Co. v. Brown, ibid. 488; Sayward v. Denny, 158 id. 180; H. & T. C. R. v. Texas, 177 id. 66; W. U. T. Co. v. A. A. R., 178 id. 239; cf. K. W. P. Co. v. G. B. C. Co., 142 id. 254.

"Dred Scott v. Sandford, 19 How. 393; Bingham v. Cabot, 3 Dall. 382; Capron v. Van Noorden, 2 Cr. 126; Breithaupt v. Bank of Georgia, 1 Pet. 238; Brown v. Keene, 8 id. 112, 115; Hornthall v. The Collector, 9 Wall. 560; Godfrey v. Terry, 97 U. S. 171; Robertson v. Cease, ibid. 646; Grace v. A. C. I. Co., 109 id. 278, 283; Cameron v. Hodges, 127 id. 322; Chapman v. Barney, 129 id. 677; Stevens v. Nichols, 130 id. 230; Timmons v. E. L. Co., 139 id. 378; Denny v. Pironi, 141 id. 121; Mattingly v. N. W. V. R., 158 id. 53; I. C. & I. Co. v. Gibney, 160 id. 217; St. L. & S. F. Ry. v. James, 161 id. 545; Benjamin v. New Orleans, 169 id. 161.

58 Montalet v. Murray, 4 Cr. 46.

5 Jones v. Andrews, 10 Wall. 327; Godfrey v. Terry, 97 U. S. 171; Robertson v. Cease, ibid. 646. See also Arbuckle v. Blackburn, 191 id. 405; Minnesota v. N. S. Co., 194 id. 48.

"Wickliffe v. Owings, 17 How. 47.

61 O. & M. R. v. Wheeler, 1 Bl. 286; B. & O. R. v. Harris, 12 Wall. 65; Ry. Co. v. Whitton, 13 id. 270; Muller v. Dows, 94 U. S. 444; St. L. & S. F. Ry. v. James, 161 id. 545; Blake v. McClung, 172 id. 239; S. Ry. v. Allison, 190 id. 326; cf. St. J. & G. I. R. v. Steele, 167 id. 659.

Act 13th Aug., 1888, sec. 4, 25 Stat. 433.