in conformity with the laws of the States as determined by their respective tribunals.

Whether this body of law may properly be termed Federal common law may possibly be questioned. It is unquestionably Federal in the sense that it owes it authority to, and is applied by, the Federal courts; and it is common in that it may be enforced by the Federal courts throughout the Union. There is, however, good reason for holding that it is essentially State law. The fact that it differs from the law as laid down by the State courts is due to the peculiar circumstance that, under our judicial system, two co-ordinate sets of courts have the power to interpret and determine the common law of the several States. In other words, the Federal courts have taken the position that, when sitting for the enforcement of State laws, they do not sit as tribunals subordinate to the State courts, but as tribunals co-ordinate with them; and, therefore, that they have an independent right to determine what is the non-statutory law of the State, using for that purpose the same sources of information that the State courts use in determining for themselves the same facts.

CHAPTER XLIV

SUITS BETWEEN STATES AND TO WHICH A STATE OR THE UNITED STATES IS A PARTY PLAINTIFF

Article III of the Constitution provides that the judicial power of the United States shall extend "to controversies between two or more States."

The most important class of cases which have required the exercise of the authority granted to the Supreme Court to adjudicate between States have been those relating to disputed boundaries. Of this class a very considerable number of cases have been adjudicated.

In the earlier of these cases it was urged that the jurisdiction of the Supreme Court extended only to judicial controversies between the States, and that boundary disputes, being political in character, did not fall within the grant. The point was, however, overruled.1

In Louisiana v. Texas,2 complaint was made that the agents of the defendant State were administering certain quarantine laws in a manner that discriminated, and were intended to discriminate, against citizens of the complainant State. Upon demurrer it was held that that State had not a direct interest in the premises and was, therefore, not entitled to bring suit.

But in Missouri v. Illinois 3 it was held that a State's interest in the health of its citizens was sufficiently sub

1 For the argument, see especially the opinion of Justice Baldwin in Rhode Island v. Massachusetts, 12 Pet. 657; 9 L. ed. 1233.

2 176 U. S. 1; 20 Sup. Ct. Rep. 251; 44 L. ed. 347.

3 180 U. S. 208; 21 Sup. Ct. Rep. 331; 45 L. ed. 497.

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stantial and direct to enable it to prosecute a suit to prevent another State from constructing and operating a drainage system which would pollute a river furnishing the water supply to the inhabitants of the former State.

In Kansas v. Colorado 4 was raised the question whether one State may obtain an order from the Supreme Court restraining another State from operating irrigation works of such a character as to deplete the water supply of a river rising in that State and flowing into and through the complainant State. It was held that the controversy was of a justiciable nature, and would be entertained by the court. As to the law to be applied, the court held itself bound by the law of neither State, and declared: "Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, State law, and international law as the exigencies of the particular case may demand."

The case of Georgia v. Tennessee Copper Co.,5 though not one between States, illustrates a further definition by the Supreme Court of what will constitute a justiciable interest upon the part of a State enabling it to seek relief by Federal judicial process. Here an injunction was granted, at the suit of the State of Georgia, to enjoin the defendant company located in the State of Tennessee from discharging noxious gases from its works over the border of the State upon the territory of the plaintiff. In its opinion the court observed that it is proper to grant relief to a State, as a quasi-sovereign body, under circumstances which would not warrant it in a suit between private persons.

The interesting cases of New Hampshire v. Louisiana,6

4 185 U. S. 125; 22 Sup. Ct. Rep. 552; 46 L. ed. 838.

5 206 U. S. 230; 27 Sup. Ct. Rep. 618; 51 L. ed. 1038.

6108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 656.

and South Dakota v. North Carolina7 are considered in the chapter dealing with the suability of the States.

Suits of States against individuals.

The question as to the character of interests requisite for the institution and maintenance of suits by the States of the Union has necessarily to be considered as well when individuals have been proceeded against as when States have been the parties defendant. The case of Georgia v. Tennessee Copper Co. has been spoken of in the preceding paragraph. A few other cases will sufficiently indicate the character and extent of this branch of the Federal judicial power.

In Pennsylvania v. Wheeling & B. Bridge Co. upon suit of the plaintiff State the defendant was, by decree, ordered to remove or elevate a bridge which, under color of a Virginia statute, it was constructing, on the ground that it obstructed navigation to and from the ports of Pennsylvania, and that the State, as a State, was interested directly in having the obstruction removed.

In Wisconsin v. Pelican Insurance Co.9 was raised the very important question as to the right of a State to sue in the courts of another State of the United States to recover pecuniary penalties imposed by the criminal law of the plaintiff State. The court held that neither the judiciary article of the Federal Constitution authorized the Federal courts, nor the full faith and credit clause compelled the State courts to entertain such a suit.

In Mississippi v. Johnson 10 and Georgia v. Stanton 11 the Supreme Court refused to grant injunctions restraining the defendants from executing in the course of their

7192 U. S. 286; 24 Sup. Ct. Rep. 269; 48 L. ed. 448.

813 How. 518; 14 L. ed. 249.

9127 U. S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239.

10 4 Wall. 475; 18 L. ed. 437.

116 Wall. 50; 18 L. ed. 721.

official duties, an act of Congress which was alleged unconstitutionally to affect rights of the States. The political rights, rights of sovereignty, the court held were not subjects within the power of the judiciary to determine and protect.

In Texas v. White 12 proprietary rights of the State were involved, and jurisdiction was assumed by the court and relief granted. So also, in Craig v. Missouri, 13 Florida v. Anderson, 14 and Alabama v. Burr 15 proprietary rights were involved and jurisdiction exercised.

Suits between the United States and a State of the Union Article III does not in express terms grant jurisdiction in suits between a State and the United States, but in a number of instances suits brought by the United States against individual States of the Union have been entertained and decided by the Supreme Court.

In United States v. North Carolina 16 an action of debt upon certain bonds issued by the defendant State was tried and determined upon its merits, judgment being rendered in favor of the defendant. No question of jurisdiction was discussed in the briefs of counsel or in the opinion of the court. In a later case, however, it was declared that "it did not escape the attention of the court, and the judgment would not have been rendered, except upon the theory, that this court has original jurisdiction of છૂ suit brought by the United States against a State." 17 this later case the United States again appeared as plaintiff in a suit against a State, this time with reference to a

12 7 Wall. 700; 19 L. ed. 227.

13 4 Pet. 410; 7 L. ed. 903.

14 91 U. S. 667; 23 L. ed. 290.

15 115 U. S. 413; 6 Sup. Ct. Rep. 81; 29 L. ed. 435.

16 136 U. S. 211; 10 Sup. Ct. Rep. 920; 34 L. ed. 336.

In

17 United States v. Texas, 143 U. S. 621; 12 Sup. Ct. Rep. 488; 36 L. ed. 285.