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.1042 It is hardly surprising, therefore, that during its first 60 years the only state disputes coming to the Supreme Court were boundary disputes1043 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 ex- amples of suits between states, that between New Jersey and New York1044 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,1045 that a boundary dispute is a justiciable and not a political question,1046 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.”1047

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

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. In Alabama v. Arizona,1063 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 the burden generally required by a petitioner seeking an injunction 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.”1064 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,1065 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.1066 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.1067 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 in interstate litigation is the enforce- ment 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, that 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.1068 Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,1069 the Court proceeded to hold that it applied with the same force to states as to other litigants1070 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.”1071 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. Before that could occur, West Virginia accepted the Court’s judgment and entered into an agreement with Virginia to pay it.1072

Enforcement Authority Includes Ordering Disgorgement and Reformation of Certain Agreements.

More recently, the Court, noting that proceedings under its original jurisdiction are “basically equitable,” has taken the view that its enforcement authority encompasses ordering disgorgement of part of one state’s gain from its breach of an interstate compact, as well as reforming certain agreements adopted by the states.1073 In so doing, the Court emphasized that its enforcement authority derives both from its “inherent authority” to apportion interstate streams between states equitably and from Congress’s approval of interstate compacts. As to its inherent authority, the Court noted that states bargain for water rights “in the shadow of ” the Court’s broad power to apportion them equitably and it is “difficult to conceive” that a state would agree to enter an agreement as to water rights if the Court lacked the power to enforce the agreement.1074 The Court similarly reasoned that its remedial authority “gains still greater force” because a compact between the states, “having received Congress’s blessing, counts as federal law.”1075 The Court stated, however, that an interstate compact’s “legal status” as federal law could also limit the Court’s enforcement power because the Court cannot order relief that is inconsistent with a compact’s express terms.1076

Footnotes

1042
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 (1924). [Back to text]
1043
Id. at 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. at 13, 14. [Back to text]
1044
New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1931). [Back to text]
1045
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838). [Back to text]
1046
37 U.S. at 736–37. [Back to text]
1047
37 U.S. at 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. at 752–53. 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, 506 U.S. 73 (1992). [Back to text]
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]
1063
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. § 1251(a) giving the Court “original and exclusive jurisdiction” of these kinds of suits. [Back to text]
1064
Massachusetts v. Missouri, 308 U.S. 1, 15–16, (1939), citing Florida v. Mellon, 273 U.S. 12 (1927). [Back to text]
1065
306 U.S. 398 (1939). [Back to text]
1066
308 U.S. at 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. [Back to text]
1067
308 U.S. at 17, 19. [Back to text]
1068
The various decisions in Virginia v. West Virginia are found at 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. 531 (1916); 246 U.S. 565 (1918). [Back to text]
1069
246 U.S. at 591. [Back to text]
1070
246 U.S. at 600. [Back to text]
1071
246 U.S. at 601. [Back to text]
1072
C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES 78–79 (1924). [Back to text]
1073
Kansas v. Nebraska, 574 U.S. ___, No. 126, Orig., slip op. at 14–17 (2015). Equity is “the system of law or body of principles originating in the English Court of Chancery.” BLACKS LAW DICTIONARY 656 (10th ed. 2014). Persons who sought equitable relief “sought to do justice in cases for which there was no adequate remedy at common law,” A.H. MANCHESTER, MODERN LEGAL HISTORY OF ENGLAND AND WALES, 1750–1950 135–36 (1980), i.e., cases in which the English courts of law could afford no relief to a plaintiff. While eventually courts of law and courts providing equitable relief merged into a single court in most jurisdictions, an equitable remedy refers to a remedy that equity courts would have historically granted. See 1 DAN B. DOBBS, DOBBS LAW OF REMEDIES: DAMAGES —EQUITY —RESTITUTION § 2.1(2), at 59–61 (2d ed. 1993). Compensatory damages are a classic “legal” remedy, whereas an injunction is a classic “equitable” remedy. See RICHARD L. HASEN, REMEDIES 141 (2d ed. 2010). [Back to text]
1074
See Kansas, slip op. at 8 (quoting Texas v. New Mexico, 462 U.S. 554, 567 (1983)). [Back to text]
1075
Id. [Back to text]
1076
Id. [Back to text]