Modern Types of Suits Between States.

Beginning with Missouri v. Illinois & Chicago District,1048 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,1049 where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas v. Colorado,1050 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York,1051 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.”1052

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,1053 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,1054 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,1055 of one state against another to enforce a contract between the two,1056 of a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,1057 and of a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.1058

In Texas v. New Jersey,1059 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,1060 and fortified by Chief Justice Marshall’s dictum in Cohens v. Virginia,1061 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.”1062

Footnotes

1048
180 U.S. 208 (1901). [Back to text]
1049
E.g. Montana v. Wyoming, 563 U.S. ___, No. 137, Orig., slip op. (2011). [Back to text]
1050
206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980). [Back to text]
1051
283 U.S. 336 (1931). [Back to text]
1052
283 U.S. at 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). [Back to text]
1053
South Dakota v. North Carolina, 192 U.S. 286 (1904). [Back to text]
1054
Virginia v. West Virginia, 220 U.S. 1 (1911). [Back to text]
1055
Arkansas v. Texas, 346 U.S. 368 (1953). [Back to text]
1056
Kentucky v. Indiana, 281 U.S. 163 (1930). [Back to text]
1057
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). [Back to text]
1058
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, 502 U.S. 437 (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. [Back to text]
1059
379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972). [Back to text]
1060
37 U.S. (12 Pet.) 657 (1838). [Back to text]
1061
19 U.S. (6 Wheat.) 264 (1821). [Back to text]
1062
19 U.S. at 378. See Western Union Tel. 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). [Back to text]