The extension of federal judicial power to controversies between States and the vesting of original jurisdiction in the Supreme Court of suits to which a State is a party had its origin in experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation, Congress was made ''the last resort on appeal'' to resolve ''all disputes and differences . . . between two or more States concerning boundary, jurisdiction, or any other cause whatever,'' and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten States. 889 It is hardly surprising, therefore, that during its first sixty years the only state disputes coming to the Supreme Court were boundary disputes 890 or that such disputes constitute the largest single number of suits between States. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization, other types of cases have occurred with increasing frequency.
Boundary Disputes: The Law Applied .--Of the earlier examples of suits between States, that between New Jersey and New York 891 is significant for the application of the rule laid down earlier in Chisholm v. Georgia that the Supreme Court may proceed ex parte if a State refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between States, yet it does not exclude any, 892 that a boundary dispute is a justiciable and not a political question, 893 and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Baldwin stated: ''The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject- matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.'' 894
Modern Types of Suits Between States .--Beginning with Missouri v. Illinois & Chicago District, 895 which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have become an increasing source of suits between States. Such suits have been especially frequent in the western States, where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas v. Colorado, 896 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York, 897 where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: ''A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And, on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the river that must be reconciled as best they may be.'' 898
Other types of interstate disputes of which the Court has taken jurisdiction include suits by a State as the donee of the bonds of another to collect thereon, 899 by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former, 900 by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas, 901 of one State against another to enforce a contract between the two, 902 of a suit in equity between States for the determination of a decedent's domicile for inheritance tax purposes, 903 and of a suit by two States to restrain a third from enforcing a natural gas measure which purported to restrict the interstate flow of natural gas from the State in the event of a shortage. 904
In Texas v. New Jersey, 905 the Court adjudicated a multistate dispute about which State should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the States could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.
In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term ''controversies between two or more States'' enunciated in Rhode Island v. Massachusetts, 906 and fortified by Chief Justice Marshall's dictum in Cohens v. Virginia, 907 concerning jurisdiction because of the parties to a case, that ''it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.'' 908
Cases of Which the Court Has Declined Jurisdiction .--In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. Thus, in Alabama v. Arizona, 909 where Alabama sought to enjoin nineteen States from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between States will be exercised only when absolutely necessary, that the equity requirements in a suit between States are more exacting than in a suit between private persons, that the threatened injury to a plaintiff State must be of great magnitude and imminent, and that the burden on the plaintiff State to establish all the elements of a case is greater than that generally required by a petitioner seeking an injunction suit in cases between private parties.
Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant State must show that it ''has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law or equity systems of jurisprudence.'' 910 The fact that the trust property was sufficient to satisfy the claims of both States and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida, 911 where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a State may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens. 912 Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable. 913 Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri's courts or in a federal district court in Missouri.
The Problem of Enforcement: Virginia v. West Virginia .--A very important issue that presents itself in interstate litigation is the enforcement of the Court's decree, once it has been entered. In some types of suits, this issue may not arise, and if it does, it may be easily met. Thus, a judgment putting a State in possession of disputed territory is ordinarily self-executing. But if the losing State should oppose execution, refractory state officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. Likewise an injunction may be enforced against state officials as individuals by civil or criminal proceedings. Those judgments, on the other hand, which require a State in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion of the state debt of original Virginia owed by West Virginia after its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt.
The suit was begun in 1906, and a judgment was rendered against West Virginia in 1915. Finally, in 1917, Virginia filed a suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia legislature to levy a tax for payment of the judgment. 914 Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion, 915 the Court proceeded to hold that it applied with the same force to States as to other litigants 916 and to consider appropriate remedies for the enforcement of its authority. In this connection, Chief Justice White declared: ''As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the federal government, judicial, legislative, or executive, which may be appropriately exercised.'' 917 The Court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term, but in the meantime West Virginia accepted the Court's judgment and entered into an agreement with Virginia to pay it. 918
The decision in Chisholm v. Georgia 919 that this category of cases included equally those where a State was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a State and citizens of another State have included only those cases where the State has been a party plaintiff or has consented to be sued. 920 As a party plaintiff, a State may bring actions against citizens of other States to protect its legal rights or in some instances as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power, which simultaneously comes within its original jurisdiction, by perhaps an even more rigorous application of the concepts of cases and con troversies than that in cases between private parties. 921 This it does by holding rigorously to the rule that all the party defendants be citizens of other States 922 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts. 923
Jurisdiction Confined to Civil Cases .--In Cohens v. Virginia, 924 there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a State and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show the corporation against which the suit was brought was chartered in another State. 925 Subsequently, the Court has ruled that it will not entertain an action by a State to which its citizens are either parties of record or would have to be joined because of the effect of a judgment upon them. 926 In his dictum in Cohens v. Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by States to enforce their penal laws. 927 Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co. 928 Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789 which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a State is a party, and partly on Justice Iredell's dissent in Chisholm v. Georgia, 929 where he confined the term ''controversies'' to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, ''controversies between a State and citizens of another State'' are confined to civil suits. 930
The State's Real Interest .--Ordinarily, a State may not sue in its name unless it is the real party in interest with real inter ests. It can sue to protect its own property interests, 931 and if it sues for its own interest as owner of another State's bonds, rather than as an assignee for collection, jurisdiction exists. 932 Where a State in order to avoid the limitation of the Eleventh Amendment by statute provided for suit in the name of the State to collect on the bonds of another State held by one of its citizens, it was refused the right to sue. 933 Nor can a State sue on behalf of its own citizens the citizens of other States to collect claims. 934
The State as Parens Patriae .--The distinction between suits brought by States to protect the welfare of its citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry., 935 the State was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these commodities and had no proprietary interest in them. But in Georgia v. Pennsylvania R. Co., 936 a closely divided Court accepted a suit by the State, suing as parens patriae and in its proprietary capacity, the latter being treated by the Court as something of a makeweight, seeking injunctive relief against twenty railroads on allegations that the rates were discriminatory against the State and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a State for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but to ''embrace the so called 'quasi-sovereign' interests which . . . are 'independent of and behind the titles of its citizens, in all the earth and air within its domain.''' 937
Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest the development of a State and put it at a competitive disadvantage. ''Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia's interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.'' 938
The continuing vitality of this case is in some doubt, inasmuch as the Court has limited it in a similar case. 939 But the ability of States to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court's original jurisdiction such suits are not in favor. 940
One clear limitation had seemed to be solidly established until recent litigation cast doubt on its foundation. It is no part of a State's ''duty or power,'' said the Court in Massachusetts v. Mellon, 941 ''to enforce [her citizens'] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the State which represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.'' But in South Carolina v. Katzenbach, 942 while holding that the State lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 1965 943 under the Fifth Amendment's due-process clause and under the bill-of- attainder clause of Article I, 944 the Court proceeded to decide on the merits the State's claim that Congress had exceeded its powers under the Fifteenth Amendment. 945 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion which is contrary to a number of supposedly venerated cases. 946 Either alternative possibility would be significant in a number of respects. 947
[Footnote 889] Warren, The Supreme Court and Disputes Between States, 34 Bull. of William and Mary, No. 4 (1940), 7-11. For a more comprehensive treatment of background as well as the general subject, see C. Warren, The Supreme Court and the Sovereign States (Boston: 1924).
[Footnote 890] Id., 13. However, only three such suits were brought in this period, 1789-1849. During the next 90 years, 1849-1939, at least twenty-nine such suits were brought. Id., 13, 14.
[Footnote 893] Id., 736-737.
[Footnote 894] Id., 737. Chief Justice Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Id., 752-753. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two States, to which neither State is a party does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336 (1990); Mississippi v. Louisiana, 113 S.Ct. 549 (1992).
[Footnote 898] Id., 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a State against citizens of other States to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the filing because the presence of complex scientific issues made the case more appropriate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 (1983).
[Footnote 903] Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601 (1978), the Court denied a State leave to file an original action against another State to determine the contested domicile of a decedent for death tax purposes, with several Justices of the view that Texas v. Florida had either been wrongly decided or was questionable. But after determining that an interpleader action by the administrator of the estate for a determination of domicile was barred by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted filing of the original action. California v. Texas, 457 U.S. 164 (1982).
[Footnote 904] Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over strong dissent, relied on this case in permitting suit contesting a tax imposed on natural gas, the incidence of which fell on the suing State's consuming citizens. And in Wyoming v. Oklahoma, 112 S.Ct. 789 (1992), the Court permitted a State to sue another to contest a law requiring that all in-state utilities burn a mixture containing at least 10% in- state coal, the plaintiff State having previously supplied 100% of the coal to those utilities and thus suffering a loss of coal-severance tax revenues.
[Footnote 909] 291 U.S. 286 (1934). The Court in recent years, with a significant caseload problem, has been loath to permit filings of original actions where the parties might be able to resolve their disputes in other courts, even in cases in which the jurisdiction over the particular dispute is exclusively original. Arizona v. New Mexico, 425 U.S. 794 (1976) (dispute subject of state court case brought by private parties); California v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the Court's reluctance to exercise original jurisdiction ran afoul of the ''uncompromising language'' of 28 U.S.C. Sec. 1251(a) giving the Court ''original and exclusive jurisdiction'' of these kinds of suits.
[Footnote 912] Id., 308 U.S., 17, citing Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277 286, (1911), and Oklahoma ex rel Johnson v. Cook, 304 U.S. 387, 394 (1938). See also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a suit on behalf of its citizens to collect on bonds issued by another State, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a State cannot sue another to prevent maladministration of quarantine laws.
[Footnote 913] Id., 308 U.S., 17, 19.
[Footnote 914] The various litigations of Virginia v. West Virginia are to be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S.C. Sec. 531 (1916); 246 U.S. 565 (1918).
[Footnote 915] Id., 246 U.S., 591.
[Footnote 916] Id., 600.
[Footnote 917] Id., 601.
[Footnote 918] C. Warren, The Supreme Court and Sovereign States (Boston: 1924), 78-79.
[Footnote 920] See the discussion under the Eleventh Amendment.
[Footnote 927] Id., 6 Wheat. (19 U.S.), 398-399.
[Footnote 930] Id., 127 U.S., 289-300.
[Footnote 937] Id., 447-448 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), in which the State was permitted to sue parens patriae to enjoin defendant from emitting noxious gases from its works in Tennessee which caused substantial damage in nearby areas of Georgia) In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 -608 (1982), the Court attempted to enunciate the standards by which to recognize permissible parens patriae assertions. See also Maryland v. Louisiana, 451 U.S. 725, 737 -739 (1981).
[Footnote 939] In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five-to-two, held that the State could not maintain an action for damages parens patriae under the Clayton Act and limited the previous case to instances in which injunctive relief is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by P.L. 94-435, 90 Stat. 1383 (1976), 15 U.S.C. Sec. 15c et seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced in importance the significance of the law.
[Footnote 940] Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), concern suits by one State against another. Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). While recognizing that original jurisdiction exists when a State sues a political subdivision of another State or a private party as parens patriae for its citizens and on its own proprietary interests to abate environmental pollution, the Court has held that because of the technical complexities of the issues and the inconvenience of adjudicating them on its original docket the cases should be brought in the federal district court under federal question jurisdiction founded on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971).
[Footnote 942] 383 U.S. 301 (1966). The State sued the Attorney General of the United States as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the problem that the States may not sue the United States without its consent. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same device as is used to avoid the Eleventh Amendment prohibition against suing a State by suing its officers. Ex parte Young, 209 U.S. 123 (1908).
[Footnote 943] 79 Stat. 437 (1965), 42 U.S.C. Sec. 1973 et seq.
[Footnote 944] The Court first held that neither of these provisions were restraints on what the Federal Government might do with regard to a State. It then added: ''Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parents patriae of every American citizen.'' South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
[Footnote 945] The Court did not indicate on what basis South Carolina could raise the issue. At the beginning of its opinion, the Court did note the ''[o]riginal jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, Sec. 2, of the constitution. See Georgia v. Pennsylvania R. Co., 324 U.S. 439 .'' Id., 307 But surely this did not have reference to that case's parens patriae holding.
[Footnote 946] See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions were consolidated and decided. Two were actions by the United States against States, but the other two were suits by States against the Attorney General, as a citizen of New York, seeking to have the Voting Rights Act Amendments of 1970 voided as unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all parties as decisive of the jurisdictional question, and in announcing the judgment of the Court Justice Black simply noted that no one raised jurisdictional or justiciability questions. Id., 117 n. 1. And see id., 152 n. 1 (Justice Harlan concurring in part and dissenting in part). See also South Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 U.S. 367 (1984).
[Footnote 947] Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 80- 93.