(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 authori

ties 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, I, p. 626; 33, I, 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. O. 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. O. 40, I, p. 555; 33, I, p. 337).

The Federal Court is competent even if a decree of a supreme body of the defendant canton has not been issued (R. O. 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

makes complaint, in the aforementioned sense, the Federal authorities have spoken as follows: In the year 1850 the Federal Council decided that it does not devolve upon it "to refer" private persons who are uncertain as to the court which has jurisdiction of a given case "to a certain court from the very beginning"; it must rather be left to the parties "to assert their rights before the court which they consider as competent" (Ullmer, I, No. 245). By the practice in matters of double taxation, it was determined by the Federal Court that a complaint with regard to double taxation is admissible not only in the event of an actual conflict of the revenue authorities of two cantons, but also in the event of a potential conflict of such a nature; that is, it is sufficient if a canton interferes unjustifiably with the sovereign right of taxation of another canton; it is not necessary that the canton which is justified in imposing the taxation actually makes use of its right. (The last decisions are found in R. O. 37, I, p. 264; 38, I, p. 482; 41, I. p. 70). With express reference to this practice, the Federal Court has declared that in intercantonal disputes as to the right to appeal to a court, the mere presence of a potential conflict is sufficient for entering complaint (R. O. 44, I, p. 47). This principle was also declared applicable to disputes relative to the extent of cantonal penal sovereignty (R. O. 41, p. 199).

In matters of violation of intercantonal law a private person may make complaint before the Federal Court without having exhausted the cantonal legal remedies (R. O. 44, I, p. 47).

3. WEIGHT OF THE CONTENTIONS OF THE PARTIES

With regard to its attitude toward the contentions of the parties in disputes on intercantonal law, the Federal Court has spoken as follows: "With respect to the juridical consideration of complaints that have been entered, the Court is not bound by the propositions of law or statement of claims of the parties, but it must rather apply the law actually applicable to the case" (R. O. 6, p. 209).

4. LEGAL FORCE OF THE DECISIONS

The question of the legal force of the findings of the Federal authorities in intercantonal disputes was raised in the consideration of the decision of February 17, 1882, in the case of Luzerne v. Aargau. Although the question was left open by the court, it stated:

Although, of course, it follows from the general conception of the administration of justice as a means of settling juridical relations, in a legally binding and authoritative way that such decisions of the political Federal authorities [a decision of the Federal Council of 1870 was in question], so long as they have not been rescinded, are in every case binding and enforceable, it is nevertheless not at all certain that such decisions have the same binding effect upon the deciding authorities themselves as judicial decision. . . (R. O. 8, p. 53).

In a number of cases arising out of double taxation the Federal Court has denied the legal force of such decisions:

The principles of civil procedure upon the matter adjudged are not applicable with regard to public and constitutional law, in which the contest, far from being limited to a private question between well-determined parties, may interest the entire population and be revived upon occasion by an act one kind or another of the legislative or administrative authorities. Consequently, the decree of March 5, 1866 [which had been issued in the same matter], while remaining obligatory upon the parties between whom it was originally pronounced, could not deprive this tribunal of its competency to examine anew the constitutional question decided by that decree (R. O. 10, p. 178).

This point of view was later confirmed by the Federal Court (R. O. 12, p. 561). Since in the absence of a federal law the prohibition of double taxation (Federal Constitution, Article 46) is accomplished through the decisions of the Federal Court, the question of the legal force of such decisions is of especial importance. It is necessary for the Federal Court as well as for the legislator to meet the needs of the time. Earlier decisions are not opposed to a reconsideration of the question of double taxation which have once been settled, in so far as those decisions no longer comply with the present-day application of the . . prohibition of intercantonal double taxation. For the public legal duty of tax-paying is determined as such generally by the laws that are from time to time in force, and, therefore, changes-especially concerning the definition of conflicting cantonal rights to collect revenues under the federal prohibition against double taxation-with the respective administrations of justice on the part of the Federal Court, which acts in the absence of federal legislation in this field. Consequently, the cantons are, on the one hand, obliged, and, on the other hand, entitled to adapt their revenue claims, in accordance with their regulations for the assessment of taxes, to the practice of the Federal Court as it prevails from time to time, and a decision of the Federal Court remains effective within the taxation periods of cantonal law, only so long as the legal conception upon which it is based obtains (R. O. 41, I, p. 432).

III. INTERCANTONAL LAW IN THE DECISIONS OF THE FEDERAL COURT

1. THE RULES OF LAW APPLIED

The rules of law for the decision of disputes between cantons are found in the first place in the Federal Constitution and in Federal legislation. But fixed rules cannot always be derived from these sources. However, the Federal Court is bound to decide every cantonal dispute submitted to it. If, therefore, the positive Federal law furnishes no solution, it must be sought upon the basis of the principles on which Federal law is constructed. In a dispute between the Cantons Aargau and Zurich on the subject of water rights, the Federal Court rejected the defendant's claim that a legal principle can not be found for the decision.