of the league. The provisions referred to the appointment of the arbitral court and the place of meeting; there were but few regulations as to procedure and the nature of the law to be applied. This organization for the administration of law between the cantons was designated as "confederate law" (Eidenössisches Recht). In time the regulation provided in the Zurich League of 1351 became prevalent for the appointment of arbitral courts; each of the litigant parties named two arbitral judges who, if they could not agree, chose an umpire from among the Confederation.

During the years 1798-1803, Switzerland constituted under the supremacy of France a unified State, the cantons were degraded to mere provinces, and intercantonal relations ceased to exist.

By virtue of the Mediation Constitution of 1803, granted by Napoleon, the cantons again received the character of states and were united into a sort of federal state. The supreme organ of this state was the Diet, composed of deputies from the cantons. If an attempt at mediation failed, the settlement of intercantonal conflicts devolved upon the Diet, which constituted itself for this purpose into a "syndicate." While the deputies of the Diet were bound by the instructions of their cantonal governments when the Diet met as a political body, and the representatives of the larger cantons had two votes to one vote for those of the smaller cantons, the deputies were bound by no instructions in the decisions of the "syndicate" and none possessed more than one vote. When the Diet did not meet, it was the duty of the Landammann of Switzerland to appoint arbitral judges for purposes of mediation, or to postpone the discussion until the next Diet.

After the fall of Napoleon, the Mediation Constitution was set aside and the cantons united in 1815 to form a confederation of states. In the reorganization, the conditions as they had existed prior to 1798 were used as a model for the decision of intercantonal conflicts, as well as for many other matters. The decision was again entrusted to arbitral courts, the appointment of which was now, however, regulated by the Federal Treaty, which embraced all the cantons in an equal manner. The provision regulating this matter may be looked upon as a summary conclusion of Swiss experience in intercantonal courts of arbitration, and reads as follows:

§ V. "All claims and disputes between the cantons on matters which are not guaranteed by the Federal Treaty are referred to the confederate law. The course and form of this procedure are fixed as follows: Each of the two litigant cantons chooses from among the magistrates of other cantons two, or if the cantons so agree, one arbitral judge.

If the litigation is between more than two cantons, the designated number is chosen by each party.

These arbitral judges together endeavor to settle the dispute amicably and by means of mediation.

If this cannot be attained, the arbitral judges choose an umpire from among the magistrates of a canton which is not a party to the dispute and from which no arbitral judge has as yet been drawn.

If the arbitral judges should be unable to come to an agreement as to the choice of the umpire, and one of the cantons should make a complaint thereon, the umpire is appointed by the Diet, in which case, however, the litigant cantons have no vote. The umpire and the arbitral judge again attempt to settle the dispute by mediation, or to decide, in case of mutual consent, by means of a compromise verdict; but if none of these possibilities occurs, they render a decision finally in accordance with law.

The verdict cannot be further contested and is, if necessary, carried into execution by a decree of the Diet.

Simultaneously with the principal issue, a decision shall be rendered with regard to the costs, consisting of the expenses of the arbitral judges and the umpire.

The arbitral judges and umpires chosen in accordance with the aforementioned provisions are exempted by their governments from the oath to their canton in the pending litigation.

In all disputes which may occur, the cantons involved shall refrain from all measures of violence or even of arming, shall follow exactly the path of law laid down in this article, and shall conform to the verdict in all its parts.

2. THE EXISTING LAW

In the year 1848 the Swiss Federal State was founded. As organs of the new state the Federal Assembly (the legislative body), the Federal Council (the executive body) and the Federal Court were created by the Federal Constitution of September 12, 1848. The system of arbitral courts, which was recognized to be insufficient, was abandoned and the settlement of disputes between cantons was entrusted to the new federal organs. The Federal Court, which from 1848 to 1874 was not a permanent court, but met only occasionally, was entrusted with disputes in civil law, while the Federal Council, from the decisions of which appeal could be had to the Federal Assembly, was entrusted with disputes in public law.

This division of jurisdiction, which entrusted to the Federal Court only insignificant tasks, was discontinued in the complete revision of the Federal Constitution in 1874. The new Constitution of May 29, 1874, which is still in force, created a permanent Federal Court and entrusted to it the settlement of disputes between the cantons not only in civil, but also in public law. The Federal Council retained jurisdiction only in some cases of an administrative nature.

The separate provisions of the Federal Constitution and of legislation are as follows:

The competency of the Confederation follows from Article 5 of the Federal Constitution, which reads:

The Confederation guarantees to the cantons their territory, their sovereignty, within the limits of Article 3,3 their constitutions, freedom, the

3 Article 3 reads: "The cantons are sovereign, in so far as their sovereignty is not limited by the Federal Constitution, and as such they exercise all rights which are not entrusted to the Federal authority."

rights of the people and the constitutional rights of the citizens, as well as the rights and powers which the people have entrusted to the authorities.

The guarantee of the Confederation is effected among other means by the fact that it furnishes an organ through which conflicts between the cantons can be decided. The Federal Constitution of 1848 stipulated the following provisions in this matter:

Article 90. The Federal Council has particularly the following powers and obligations within the limits of the present constitution: No. 2. It must watch over the observance of the Constitution, of the laws and of the decrees of the Confederation, as well as of the regulations of confederate concordats; it issues the necessary decrees for their administration, either of its own accord or in response to a complaint that has been made.

Appeals from the decisions of the Federal Council could be made to the Federal Assembly in compliance with the following regulation:

Article 74. The subjects which fall within the jurisdiction of both Councils are especially the following: . . . . No. 15. Complaints by cantons or citizens regarding decrees of the Federal Council: No. 16. Disputes among the cantons falling under the head of public law.

Finally the Federal Court had jurisdiction in accordance with Article 101 of the Federal Constitution, the conclusive provisions of which read:

Article 101. The Federal Court decides as a civil court: (1) in disputes which do not fall under the head of public laws, (a) between cantons among themselves.

The respective provisions of the Federal Constitution of 1874, which is today still in force, read:

Article 110. The Federal Court decides disputes in civil law: . . . . 3, between the cantons among themselves.

The Federal Court further decides in cases concerning homelessness, as well as in disputes between communes of different cantons pertaining to the rights of citizens.

Article 113. The Federal Court further decides:

(2.) In disputes between cantons pertaining to matters of public law; (3.) In complaints concerning the violation of constitutional rights of citizens as well as in any complaints of private persons concerning the violation of concordats and state treaties. [According to the Law of Execution, such a complaint can be directed only against cantonal ordinances and decrees.]

The provision of No. 2 of Article 113 was elaborated by Article 177 of the Federal Law of March 22, 1893, concerning the organization of the administration of the Federal Laws ("Law of Organization"). This article reads:

The jurisdiction of the Federal Court over disputes in public law between cantons is well founded if a cantonal government applies for its

decision. To such disputes there belong especially boundary disputes between cantons, questions of competency between the authorities of different cantons, and cases relative to the application of intercantonal treaties, as far as the infringement of the interests or the legal claims of private persons are not exclusively involved.

The Federal Constitution distinguishes in the aforementioned articles between disputes in civil law and disputes in public law between cantons. A case is civil or public, depending upon whether the cantons appear in court as private juridical persons or as representatives of public interests. Since the Federal Court is competent in both cases, it is not necessary to dwell further upon this distinction at the present time.

In spite of the provisions of the Federal Constitution which have been mentioned, the Federal Council, in accordance with special regulations provided by some of the federal laws, has even today the duty of deciding certain intercantonal disputes. This is the case, however, only in such matters as are entirely regulated by federal legislation and in which, consequently, the intercantonal sovereignty is not in question, or in which the decision must be made rather in accordance with technical than legal points of view. In the latter case, as far as juridical questions are decided also by the Federal Council, the decision of the latter may possibly be appealed from before the Federal Court (R. O. 33, I, pp. 336-7; law relative to the Hydraulic Police in the Alps, Article 12).

However, the cantons are not forbidden to submit their disputes to an arbitral court. In Article 102, No. 5, of the Federal Constitution, it is provided that the Federal Council must execute such awards (cf. Ullmer, II, No. 859). Furthermore, it is possible that a commission formed from the very outset may be competent for the decision of certain intercantonal disputes. Compare an example infra, p. 175.

Finally, a Federal Assembly may have an important rôle in the settlement of intercantonal conflicts. If it is a question of a conflict of interests the decision of which is not possible according to the norms of law, or where such a decision would lead to an unfair solution, the Federal Assembly, as the highest political instance, may intervene.*

In the following pages decisions of the Federal Court (and of the Federal Council and the Federal Assembly before 1874, respectively) in intercantonal conflicts will be presented. Disputes will be treated in which two cantons as such appear as parties to a litigation. The Federal Court (before 1874, the Federal Council and the Federal Assembly, respectively) must, to be sure, also decide complaints of citizens relating to the violation of constitutional rights, as well as complaints of private persons in matters of violation of concordats and state treaties, in so far as the complaints are directed against intercantonal ordinances (recourse in public law").

In such decisions, questions of intercantonal law are often decided. The 4 Cf. Max Huber, in this JOURNAL, Jan., 1909, p. 90.

Federal Court may see fit to treat the same juridical question now as a dispute in public law between cantons, now as a recourse in public law, nay, in one and the same case the court often assumes jurisdiction from both points of view. Nevertheless, decisions on recourses in public law are included in the following pages only in so far as decisions have been rendered in cases between cantons with regard to the same juridical questions, and the inclusion of such decisions seemed, consequently, to be necessary in order to render complete the account of the judicature of the Federal Court in certain matters. The rest of the decisions on recourses in public law, in which questions of intercantonal law are decided, are omitted from these pages because in these cases it is usually a question of the interpretation of special positive norms of federal law which are hardly of interest for international law. On the other hand, the disputes in which the cantons themselves appeared as parties-in default of positive norms of law—were in most cases decided in accordance with general principles of international law and of federal law. The decisions in such conflicts might, therefore, be of value as precedents for international litigation.5

II. PROCEDURE IN THE TRIALS OF INTERCANTONAL DISPUTES

The Federal Court has in practice applied certain rules of procedure in the cases brought before it, which will be treated first in the following pages.

1. SUABILITY OF PLAINTIFF AND DEFENDANT

The parties to intercantonal disputes are, in the first place, cantons. They are represented by their governments. But the communes may also appear as parties, represented either by the cantonal government, side by side with the latter, or for themselves alone.

After the Federal Court in the year 1878 failed to consider a dispute between communes of different cantons relative to a joint charitable duty, as a dispute between cantons, and hence declared itself to be incompetent

5 Naturally, the whole body of intercantonal law will not be presented in the following pages, but rather only those not very numerous matters in which decisions have been rendered by the Federal Court. Systematic presentations of the entire intercantonal law are: Max Huber, "The Intercantonal Law of Switzerland (Swiss Interstate Law)," in this JOURNAL, Jan., 1909; Arnold Bolle, Das interkantonale Recht, La Chaux-de-Fonds, 1907. Cf. also W. Burckhardt, Kommentar der Schweizerischen Bundesverfassung, Berne, 1914, and T. Schollenberger, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar mit Einleitung, Berlin, 1905. The sources for the following presentation are: Recueil officiel des Arrêts du Tribunal fédéral suisse (cited as R. O.) appearing since 1875, one volume annually, since 1894 (24th volume) in two parts, since 1914 (40th volume) in three parts, of which the first contains in each case the decisions in public law; R. E. Ullmer, Die staatsrechtliche Praxis der Schweizerischen Bundesbehörden, Vol. I, 1848-1860, Vol. II, 1848-1863 (cited Ullmer); L. R. von Salis, Schweizerisches Bundesrecht, Staatsrechtliche und verwaltungsrechtliche Praxis des Bundesrates und der Bundesversammlung seit 1874, 2d ed., Berne, 1904.