The legal principle which must form a starting-point in a decision of such disputes is that of the equality of the cantons, by virtue of which no canton may exercise its sovereign rights in such a way that the exercise will directly or indirectly affect the sovereign rights of another canton, with the result that the latter rights can not coëxist beside, the former (R. O. 4, p. 46).

Finally, in case a solution can not be found in the Federal law, international law is applied. Thus, in the case of Solothurn v. Aargau, decided November 1, 1900, the Federal Court held that for the determination of the rights of territorial sovereignty of the cantons and in general for the regulation of the mutual rights and duties of the cantons, "the principles of international law in general," must be resorted to, "whereby, further, the confederate relations of the cantons may not be disregarded" (R. O. 26, I, p. 450).

But there are intercantonal conflicts for which international law, too, furnishes no satisfactory solution. If, in disputes in matters of private law, a solution can not be found in positive law, Article 2 of the Swiss Code of Civil Law prescribes that the judge shall "decide according to the rule which he would establish if he were a legislator." In the decision of disputes in public law between cantons, the Federal Court does not follow this principle. It has in several cases rather allowed the conflict of cantonal sovereignties to continue on the ground that cantonal sovereignty is unlimited in this respect, or that no rules in Federal law exist which permit of an equitable solution. Thus, the Federal Court rejected a claim of Zurich against Berne for payment of a contribution toward the support of a joint citizen, for the following reasons:

Since a rule of Federal law, upon which the claim of Zurich could be based, does not exist, the complaint must be rejected, for it is clear that the Federal Court can decide disputes in public law between cantons only in accordance with positive law, and not in accordance with considerations of equity or utility, such as Zurich has in the main brought forth (R. O. 29, I, p. 450). Compare further, R. O. 5, p. 426; 7, p. 468; 24, I, p. 227.

On the settlement of intercantonal conflicts according to the law of concordats (intercantonal right of concluding treaties) compare infra, p. 165.

2. THE CAPACITY OF THE CANTONS TO ACT

A. Prohibition of self-help

Article 14 of the Federal Constitution provides:

If disputes arise among the cantons, they are bound to refrain from all self-help, as well as from any form of armament, and to submit to the decision of the Confederation.

For the violation of this article, which was contained in the same form in the Federal Constitution of 1848, the canton or private person may make

complaint before the Federal authorities. The Federal Council has decided a number of such complaints.

A citizen of Solothurn was condemned by a court of Baselland to pay a sum of money. The authorities of Solothurn refused to execute the decision, whereupon the court of Baselland authorized the seizure of any holdings of the citizen of Solothurn in Baselland. The complaint entered against this proceeding by the Government of Solothurn was approved by the Federal Council, because the Federal authorities should have been appealed to when Solothurn refused to execute the decision (Ullmer, I, No. 44).

Similarly there was declared invalid the seizure, decreed by a court of Berne, of property of a citizen of Zurich because Zurich had refused to execute the decision rendered in Berne against this citizen. The Canton of Berne should have entered complaint with the Federal Council because of the refusal of Zurich (Ullmer, II, No. 730).

The decision of a cantonal court against another canton was annulled by the Federal Council because it had been rendered before the Federal authorities had definitively decided the conflict of competency raised by the defendant canton.

The executability of a decision presupposes its legal force, and the latter in turn assumes the competency of the court, which was not determined until the plea of lack of competency had been decided by the Federal authorities (Ullmer, I, No. 45).

By Article 14 of the Federal Constitution the use of reprisals and measures of retorsion among the cantons is also forbidden (Ullmer, I, No. 43).

B. The power of cantons to conclude intercantonal treaties. Within the limits of their jurisdiction, the cantons have the right to conclude treaties (concordats) with each other within the limits of Article 7 of the Federal Constitution, which reads:

Special alliances and political treaties between the cantons are prohibited. On the other hand, they have the right to conclude agreements among themselves with regard to matters of legislation, judiciary and administrative. However, they must submit such agreements to the Federal authorities for examination, who, if the said agreements contain anything in contradiction to the Confederation or the rights of other cantons, are authorized to prevent the execution thereof. In the contrary case, the cantons in question are entitled to request the coöperation of the Federal authorities for the execution of such agreements.

Disputes with regard to the interpretation of concordats are decided by the Federal Court upon the basis of Article 113, Nos. 2 and 3, of the Federal Constitution (vide supra, p. 152.) The Federal Court (and prior to 1874, to some extent the Federal Council) has made the following de tailed regulations:

(a) The constitutional right of the cantons is recognized as regards the conclusion and validity of concordats. If an intercantonal treaty has not been concluded in a constitutional way,-for example by evasion of the referendum, it does not bind the authorities of the cantons (R. O. 40, I, pp. 554, 557). An agreement by correspondence has not the force of a concordat for the execution of which an appeal may be made to the Federal authorities (Ullmer, II, No. 1113). In a justified rejection of adhesion to a concordat, no conditional adhesion, nor any other contractual obligation, of the rejecting canton may be presumed (R. O. 7, pp. 467/8, 725). Nor does a mutual obligation exist between cantons which have agreed upon a law of bills of exchange and established it as cantonal law (R. O. 4, p. 74). An example of an intercantonal treaty of an extraordinary kind is the separate alliance made in 1845 between seven Catholic cantons, whereby they mutually obligated themselves to oppose by force of arms ("Sonderbund") the revision of the Federal Treaty of 1815. The dissolution of this alliance, decided upon by the Federal authorities because it was in violation of Federal law, was forcibly brought about in 1847 through the so-called Sonderbund War. Later, a dispute arose among the former members of the Sonderbund concerning the joint costs of the war, three of the cantons refusing to participate in defraying the costs. The complaint made on this subject was in principle approved by the Federal Court. In spite of the fact that the Sonderbund constituted a violation of the Federal law, the Federal Court declared it to be valid, for the following

reasons:

The separate alliance, as an act in public law, having originated from the agreement and participation of a number of cantons which were declared to be sovereign by the Treaty of 1815, does not come within the category of immoral or criminal undertakings, and the lawful powers themselves did not look upon this alliance, either before or after the victory, from this point of view. The said powers sought to dissolve the coalition of individual parts of the former Confederation of States, formed against the public law of the Confederation, at first by means of friendly remonstrances and then by force of arms, and after this dissolution had been achieved, they applied exclusively measures of civil law in their dealings with the cantons which had participated in the unlawful undertaking. After all these antecedents, this tribunal is, therefore, in its consideration of the dispute, not empowered to take a juridical point of view, which would run counter to the conditions as they have shaped themselves historically (Ullmer, I, No. 378).

(b) The contents of a concordat may, within the limits of Federal law, especially of Article 7 of the Federal Constitution, be of any nature whatsoever. Thus, several cantons could form a simple company under the jurisdiction of purely private law, for the purpose of constructing an Alpine highway (R. O. 10, pp. 148, 158).

The Federal law supersedes the law of concordats, but when legislative

jurisdiction is given to the Confederation in a matter regulated by concordats, the latter remain in force until the Federal laws are actually adopted (R. O. 1, p. 196). Simultaneously with the concordat, cantonal ordinances decreed in execution thereof naturally go out of force (R. O. 25, I, p. 48). The law of concordats, on its part, supersedes cantonal law.

Concordats are binding for cantons which have adhered thereto as long as they have not declared their withdrawal or as long as the concordats have not been annulled by Federal legislation. Cantonal legislation cannot affect the validity of concordats, but can only afford the canton in question a reason for denouncing them on its part or for declaring its withdrawal (R. O. I, p. 196).

(c) Concerning the temporary and material limits within which a concordat may be enforced, the Federal Court had to render a decision with particular reference to the concordat of August 23, 1912, concerning the guarantee of mutual legal aid for the execution of public law claims since the concordat itself makes no provision on this point. The question that was under discussion was whether the courts of the Canton of Luzerne were compelled to enforce the resolution of 1909 of the revenue authorities of the Canton of Nidwalden, by which a citizen residing in Luzerne and formerly in Nidwalden was obliged to pay arrears in taxes because of insufficient taxation of his property during the years 1899 to 1908. The Federal Court decided, on the basis of general considerations, that the concordat could not be applied, and that, therefore, the aid of the courts had been of right denied.

The point of departure in this case must be the fact that the granting of legal aid for public law claims of another State brings with it the recognition of the public law of this State, and in addition the recognition of the authority of the latter over the inhabitants of the requested State and over their property, respectively. But such a recognition will, as a rule, only be extended for the future. To extend it to past acts, and thus to attribute to such acts an effect which did not previously belong to them, would be against considerations for the protection of its own inhabitants, which no State will without duress disregard. Thus, in the law of extradition, too, in which we are likewise dealing with legal aid for public law claims, and especially penal claims of a foreign State, it is recognized that when a State which has hitherto not extradited concludes a treaty of extradition, the duty of extradition resulting therefrom refers in case of doubt only to such offenses as are committed after the conclusion of the treaty. The point of view which in this case has prompted the limitation of legal aid to (penal) claims which have originated after the conclusion of the legal aid treaty-the consideration for the protective relation based upon residence in the canton-applies, however, in exactly the same way if the legal aid must be accorded not by surrender of the person of the inhabitant but by acquiescence in the previously forbidden exercise of compulsion against his property. The reversion to the object of legal aid leads to the same result. The concordat has its origin in the conviction that the public law relation of the cantons as

members of a federal State brings with it the duty to assist one another in the collection of those taxes which each one requires for the fulfillment of its public duties. But, now, all these taxes on property, industry, inheritance, as well as supplementary and penal taxes connected therewithare by their nature intended for immediate collection. Taxes which have not been paid within a definite period are regularly cancelled and are disregarded in the budget of the economic and financial administrations of the State. The theory of the concordat is, therefore, observed also if the duty of legal aid is limited to the claims which originated or which became legally valid after its going into force. It may be assumed, moreover, that at least the great majority of the cantons, although they did not expressly state so, desired as a matter of fact to bind themselves only within the aforementioned limits. But this must be sufficient, after what has been said, to interpret the concordat in the sense indicated (R. O. 39, I, p. 614-5).

(d) The question of the abrogation of intercantonal treaties was decided by the Federal Court in the case of Luzerne v. Aargau (February 17, 1882). The case involved the abrogation of a treaty concluded in 1830 between the two cantons in settlement of a dispute, according to which the territory of a commune of Luzerne extended into the territory of Aargau, while vice versa the territory of a commune of Aargau extended into the territory of Luzerne (vide infra, p. 174). In its decision the Federal Court determined that the right of a unilateral withdrawal did not follow from the treaty itself. The court did not approve the contention of the government of the Canton of Luzerne that in State treaties concerning matters of public law each party has the right of withdrawing for its own part. Said the court:

It may be admitted that in State treaties which do not concern the regulation of concrete juridical relations, but contain merely agreements on rules of objective law, as for instance, on the uniform legal regulation of certain matters in law, it is to be assumed, even in default of special treaty stipulations to this effect, that the parties have the right of unilateral denunciation, since in such treaties it is not to be assumed in the nature of the matter that the parties had desired to bind themselves forever and irrevocably. But this follows simply from the presumptive will of the parties, or from the special nature of these State treaties. On the other hand, it is utterly incorrect to postulate as a general rule such a unilateral right of withdrawal on the part of the party bound, by such State treaties, concerning public law relations, whereby concrete juridical relations are regulated and subjective rights and duties of the contracting States are determined. Such a unilateral right of withdrawal on the part of the engaged party is rather plainly irreconcilable with the manifestly established principle of the obligation of treaties which provide a limitation on the sovereignty of one contracting party, which principle can not in justice be doubted as a well-established rule in international law. On the contrary, it is recognized in law that such treaties remain binding for both parties as long as no special juridical reason for their annulment has arisen. Now, even if the legal principles concerning the annulment of State treaties are not incontestably and completely established in theory, and even less so in practice, so much is nevertheless undisputed that treaties concerning the establish