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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. 0. 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
6 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.
(R. O., 4, p. 365), it subsequently abandoned this point of view and always admitted such disputes. “For a conflict of competency which exists materially between communal authorities of different cantons, must be settled by a delimitation of the cantonal sovereignties involved," wherefore the Federal Court is competent, in accordance with Article 175, line 2, of the Law of Organization (R. O. 39, I, p. 606). But it follows from this that such conflicts may “be submitted to the Federal Court, by one of the cantonal governments involved, as a dispute in public law” (R. O. 17, p. 20-1). The Federal Court has in constant practice maintained the principle that in disputes between communes of different cantons "the governments are authorized and obliged to represent the communes” (R. O. 8, p. 442; 9, p. 260; 10, p. 96; 13, p. 330/415; 21, p. 315/6; 23, p. 1467; 24, II, p. 253). However, it is not impossible for the communes to appeal directly to the Federal Court without the intervention of the cantonal governments (as, for instance, in a dispute relative to citizens' rights (R. O. 24, II, p. 246).
Yet the cantonal governments must represent not only the communes, but they also have the right “to answer for the competency of their courts and to bring the dispute as to the subjection of a case before the Federal authorities as a conflict in public law” (R. O. 12, p. 68).
Finally, the Federal Court has quite generally declared “that the representation of sovereign rights of a canton in its relations with another canton devolves upon the government and that, on the other hand, the latter must answer for the fulfilment of the political duties of the canton in its exterior relations.” Thus, the suability of plaintiff and defendant, respectively, was acknowledged in the governments of two cantons in a dispute concerning the endangerment of cantonal territory through target practice in a neighboring canton (R. O. 26, I, p. 449).
A canton is also competent to represent the private interests of its citizens if it alleges incidentally an interest of its own. In the decision of January 12, 1878, in the case of Aargau v. Zurich, the Federal Court declared :
The right of the Canton of Aargau to make complaint in the present case might be doubted only in so far as the exclusively private interests of Aargovian citizens are at stake. But this is in no respect the case. Besides the private interests ... there is indisputably a public interest of the canton of Aargau in question, and under these conditions the government has the right to protect its nationals against prejudice on the part of another canton (R. O. 4, p. 42; also 14, p. 37; 26, I, p. 451).
A canton may also join in the complaint of one of its citizens (R. O. 8, p. 727).
It was mentioned above that private persons may complain to the Federal authorities against the violation of constitutional rights through cantonal ordinances. The question then arises whether the Federal authorities should also receive complaints of private persons who allege that their rights have been injured by the encroachment of one canton upon the sovereign rights of another canton. In two cases which however stand alone, the Federal Court has answered the question negatively (R. O. 4, p. 4;5, p. 7). For the rest, the Federal authorities have always accepted such complaints. The beginning was made by a decision of the Federal Assembly of June 25, 1862, according to which the complaint of a citizen against simultaneous taxation by two cantons was approved. The Commission of the National Council held:
It is not apparent why the request of the citizen who is injured because of the conflict between the cantons should not be heard in the same way as when the cantons appeal to the Confederation for a decision. If each canton can by means of execution assert its opinion, none of them has, to be sure, any reason for appealing to the assistance of the Confederation; but the conflict is existent none the less, only that a third party is affected by the consequences. Now if the two states were unconditionally sovereign, and if they were not related to each other in a way which makes possible the adjustment of the disparity, the person affected thereby would submit to the force of circumstances because there would be no authority which could protect him against the injustice. But by virtue of the fact that the cantons have united in a joint state, they assumed the obligation of not transgressing upon the territory of another canton in the exercise of their cantonal rights; and if this should occur, nevertheless, it is the duty of the authorities to investigate and to decide with which side justice lies, and the cantons must submit to the decision pronounced in accordance with the Federal law. Such a case is presented when the legislation of two cantons on the subject of taxation conflicts in such a manner that both cantons claim the right of taxing the same object. The authorities must decide which claims are to be protected by the Confederation (Ullmer, II, No. 694).
The practice in matters of double taxation begun by this decision has been followed in other disputes of intercantonal juridical relations. The Federal Court has constantly received such complaints of private persons (R. O. 8, p. 728; 18, p. 700; 24, I, p. 227 : 29, I, p. 418; 32, 1, p. 626; 33, 1, p. 363), often with express reference to the practice in cases of double taxation. In the two last cited decisions, the Federal Court derives from Article 5 of the Federal Constitution “the general authority to decide for the Confederation on conflicts of cantonal sovereignties.”
In disputes in the matter of public law between cantons, the Federal Court has declared admissible the intervention of third persons who have a legal interest in the outcome of a litigation, as, for example, a commune (R. 0. 8, p. 52).
2. PREMISES OF A DISPUTE BETWEEN CANTONS The question as to when a dispute is civil and when it is public does not need to be further discussed here, since the Federal Court has jurisdiction in both cases; but it is of interest to know at what stage an intercantonal conflict may be brought before the Federal Court. On this subject, the decision of October 21, 1909, in the case of Schwyz v. Zurich is as follows:
It is clear that a dispute in public law between cantons exists only after one of the two cantons has decided unfavorably a definite request of the other canton. It is not the duty of the Federal Court to decide juridical questions concerning which there is possibly no difference of opinion at all between the cantons in question, nor may a cantonal government be denied the right to express its opinion with regard to a definite request of the government of another canton in the first place in its administrative capacity and later, eventually, in its capacity as a part (R. O. 35, I, p. 664/5).
In one particular case, however, the Federal Court admitted a suit before an actual conflict of cantonal sovereignties had occurred. The canton of Aargau had been prohibited by decision of the Federal Court of November 1, 1900, from permitting the further use of a rifle range in the manner theretofore used because it endangered the territory of Solothurn. The city of Aargau, as the proprietor of the rifle range, caused a project to be made for the improvement of the said range and submitted it through the medium of the cantonal government for the approval of the government of the Canton of Solothurn. The latter refused, however, to enter into a discussion of the subject. The Federal Court admitted the suit of the Canton of Aargau requesting that the maintenance of the rifle range be declared permissible in view of the projected plan.
The Canton of Aargau had to enforce this claim with respect to the Canton of Solothurn, which had obtained the injunction in question. ... The requisite interest of the plaintiff in this verification arises from the fact that the city of Aargau can not resonably be expected to make the projected improvements in connection with the shooting range, which will entail great expenses, before the question of the admissibility of its use has been decided, since the decision upon this subject may, according to the opinion of the experts, be made by means of the plans that have been submitted (R. O. 41, I, pp. 135, 136).
At all events, the Federal Court determines only such points in a case in which there is an existing legal interest. Thus, in the decision of December 11, 1914, in the case of Neuchâtel v. Berne, the examination of an intercantonal agreement was completely refused since the validity thereof has been contested by no one and the request for verification therefore lacks the necessary requisite of a suit, the existence of a present juridical interest in the verification requested” (R. 0. 40, I, p. 555; 33, 1, p. 337).
The Federal Court is competent even if a decree of a supreme body of the defendant canton has not been issued (R. 0. 23, p. 1461) for extra-cantonal authorities can not be expected to exhaust all the cantonal instances in a dispute in matters of public law (R. O. 39, I, p. 607).
Concerning the premise which must be fulfilled when a private person