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CRS Annotated Constitution

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[p.752]

Suits Between Two or More States

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 disputes890 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 York891 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[p.753]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.[p.754]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[p.755]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


Footnotes

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).
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.
891 New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1931).
892 Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 (1838).
893 Id., 736–737.
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 Dall. (3 U.S.) 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, 113Ct.549 (1992).
895 180 U.S. 208 (1901).
896 206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980).
897 283 U.S. 336 (1931).
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).
899 South Dakota v. North Carolina, 192 U.S. 286 (1904).
900 Virginia v. West Virginia, 220 U.S. 1 (1911).
901 Arkansas v. Texas, 346 U.S. 368 (1953).
902 Kentucky v. Indiana, 281 U.S. 163 (1930).
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).
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, 112Ct.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.
905 379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972).
906 12 Pet. (37 U.S.) 657 (1838).
907 6 Wheat. (19 U.S.) 264 (1821).
908 Id., 378. See Western Union Co. v. Pennsylvania, 368 U.S. 71, 79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New York, 407 U.S. 206 (1972).
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