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must be with the consent of Congress. It might be settled by war; but the Constitution forbids. And the state invaded by the forces of another state can appeal to the General Government to resist and suppress the invasion, no matter what the merits of the quarrel. In other words, one of the attributes of sovereignty and independence which the people in ordaining the Constitution took away from the states was the unlimited power to make agreements between each other as to their respective rights, and the other was that of making war on each other when other means of settlement failed.
What did the people through the constitution substitute for these attributes of unrestricted diplomatic negotiation and compromise and the right to go to war over such interstate issues? The right of the complaining state to hale the offending state before the Supreme Court and have the issue decided by a binding judgment.
Now, can the complaining state bring every issue between it and another state before the Supreme Court? No. The only issues which the Court can hear and decide are questions which in their nature are capable of judicial solution. Mr. Justice Bradley first called such questions “justiciable" i and Chief Justice Fuller and Mr. Justice Brewer used the same terms. There are issues between states of a character which would be likely to lead to high feeling and to war if they arose between independent sovereignties, and which the Supreme Court can not decide because they are not capable of judicial solution. In such cases between states, of course there can be no war because the Federal Government would suppress it. Therefore, if an amicable understanding can not be reached, the states are left with an unsettled dispute
1 A conventional French word (Ed.).
between them and no way of deciding it. They must put up
with the existing state of things. There have been several interesting cases before our Supreme Court illustrating the character of the jurisdiction I have been describing. Chicago built a sewage canal to drain her sewage with the aid of the waters of Lake Michigan into the Desplaines River, thence into the Illinois and thence into the Mississippi from which St. Louis and other Missouri towns derived their water supply. The State of Missouri brought suit in the Supreme Court of the United States to enjoin the State of Illinois and the Sanitary District of Chicago from continuing the flow, on the ground that the impurities added to the Mississippi water had greatly increased the typhoid fever in Missouri. It was held that this was a subject matter capable of judicial solution, that Missouri was the guardian of her people's welfare and had a right to bring such a suit and, if she made a clear case, to enjoin such use of the Mississippi and its tributaries.
Mr. Justice Shiras, in upholding the jurisdiction (Missouri v. Illinois, 180 U. S. 208, 241), spoke of the court as follows:
The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over land and their inhabitants, and in cases directly affecting the property rights and interests of a state. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objectionable, and indeed impossible, for the court to anticipate by definition what controversies can and what cannot be brought within the original jurisdiction of this court.
An inspection of the bill discloses that the nature of the injury complained of is such that an adequate remedy can only be found in this court at the suit of the State of Missouri. It is true that
no question of boundary is involved, nor of direct property rights belonging to the complainant state. But it must surely be conceded that, if the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. If Missouri were an independent and sovereign state, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy and that remedy, we think is found in the constitutional provisions we are considering."
This hearing was on demurrer. When the case came before the court again on the merits, Mr. Justice Holmes delivered the judgment of the court and, while affirming the jurisdiction of the court, points out the difficulties the court has in exercising it and the care it must take in doing
He said in the course of his opinion:
“It may be imagined that a nuisance might be created by a state upon a navigable river like the Danube which would amount to a casus belli for a state lower down unless removed. If such a nuisance were created by a state upon the Mississippi, the controversy would be resolved by the more peaceful means of a suit in this court."
Speaking of this provision in the Constitution extending the judicial power to controversies between states, Mr. Justice Bradley in Hans v. Louisiana ( 134 U. S. 1-15) said:
"Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between states as to boundary lines, and other question admitting of judicial solution. And yet the case of Penn v. Lord Baltimore (1 Ves. Sen. 444), shows that some of these unusual subjects for litigation were not unknown to the courts even in colonial times; and several cases of the same general
character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles (131 U. S. App. I). The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the states. Of other controversies between a state and another state, or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction."
A very satisfactory discussion of the scope of the power of the Supreme Court to settle controversies between states is contained in Mr. Justice Brewer's opinion in the suit brought by Kansas against Colorado to restrain the latter from absorbing so much of the water of the Arkansas River flowing from Colorado into Kansas as to interfere seriously with the supply of water from the river for irrigation purposes in Kansas. He said (206 U. S. 95, 99):
When the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other states, Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S. 508, 519; and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between the states, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of Aowing water. Neither state can legislate for or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress can not determine the rule which shall control between the two states or because neither state can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two states. Indeed, the disagreement,
coupled with its effect upon a stream passing through the two states, makes a matter for investigation and determination by this court. .
“ As Congress cannot make compacts between the states, as it cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force under our system of Government is eliminated. The clear language of the Constitution vests in this court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Nor is our jurisdiction ousted, even if, because Kansas and Colorado are states sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law. International law is no alien in this tribunal.
“ One cardinal rule, underlying all the relations of the states to each other, is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, 180 U. S. 208, the action of one state reaches through the agency of natural laws into the territory of another state, the question of the extent and the limitations of the rights of the two states becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law."
Controversies between one state and another or its citizens which are not justiciable or capable of judicial solution find examples in the suits brought before the Supreme Court. One case of which the Supreme Court refused to take jurisdiction was Wisconsin v. The Pelican Insurance Company