The Constitution is almost completely silent concerning the organization

of the federal judiciary. Although it provides for one Supreme Court, it

makes no reference to the size and composition of the Court, the time or

place for sitting, or its internal organization save for the reference

to the Chief Justice in the impeachment provision of article I, Sec. 3,

relating to impeachment of the President. All these matters are

therefore confided to Congressional determination. Under the terms of

the Judiciary Act of 1789, the Court consisted of a Chief Justice and

five Associate Justices. This number was gradually increased until it

reached a total of ten judges under the act of March 3, 1863. Due to the

exigencies of Reconstruction and the tension existing between Congress

and the President the number was reduced to seven as vacancies should

occur, by the act of April 16, 1866. The number never actually fell

below eight, and on April 10, 1869, with Andrew Johnson out of the White

House, Congress restored the number to nine, where it has since

remained. There have been proposals at various times for an organization

of the Court into sections or divisions. No authoritative judicial

expression is available, although Chief Justice Hughes in a letter to

Senator Wheeler of March 21, 1937, expressed doubts concerning the

validity of such a device and stated that "the Constitution does not

appear to authorize two or more Supreme Courts functioning in effect as

separate courts."[93] Congress has also determined the time and place of

sessions of the Court, going so far in 1801 as to change its terms so

that for fourteen months, between December, 1801 and February, 1803 the

Court did not convene.

INFERIOR COURTS MADE AND ABOLISHED

By article I, Sec. 8, paragraph 9, Congress is expressly declared to have

the power to constitute tribunals inferior to the Supreme Court, and the

power is repeated in a different formula in article III, Sec. 1, when

provision is also made for tenure during good behavior and for a

compensation which shall not be diminished. Since 1789 Congress, with

repeated judicial acquiescence and concurrence, has interpreted both of

these sections as leaving it free to establish inferior courts or not,

as it deems fit in the exercise of a boundless discretion. By the

Judiciary Act of 1789, Congress constituted thirteen district courts

which were to have four sessions annually[94] and three circuit courts

which were to consist jointly of the Supreme Court judges and the

district judge of such districts which were to meet annually at the time

and places designated by the statute.[95] By the Judiciary Act of

February 13, 1801, passed in the closing weeks of the Adams

Administration, the number of judges of the Supreme Court was to be

reduced to five after the next vacancy, the districts were reorganized,

and six circuit courts consisting of three judges each and organized

independently of the Supreme Court and the district courts were

created.[96] Whatever merits this plan of organization possessed were

lost in the fierce partisanship of the period, which led the expiring

Federalist Administration to appoint Federalists almost exclusively to

the new judgeships to the dismay of the Jeffersonians who, upon coming

into power, set plans in motion to repeal the act. In a bitter debate

the major constitutional issue to emerge centered about the abolition of

courts once they were created in the light of the provision for tenure

during good behavior. Suffice it to say, the repeal bill was passed and

approved by the President on March 8, 1802[97] without any provision for

the displaced judges. The validity of the act of 1802 was questioned in

Stuart _v._ Laird,[98] where Justice Paterson in a terse opinion, which

hardly touched Charles Lee's argument that Congress lacked power to

abolish or destroy courts and judges, held for the Court that Congress

has the power to establish inferior courts from time to time as it may

think proper and to transfer a cause from one tribunal to another. In

answer to the argument that Supreme Court Justices could not

constitutionally sit as circuit judges, he pointed to practice and

acquiescence contemporaneous with the Constitution as an interpretation

too strong and obstinate to be shaken or controlled.

Abolition of the Commerce Court

Since 1802 Congress has many times exercised its power to constitute

inferior courts, but not until 1913 did it again abolish a court. This

was the unfortunately launched Commerce Court from which so much was

expected and so little came. Again, as in 1802, there was a

constitutional debate on the power of Congress to abolish courts without

providing for the displaced judges, but unlike the act of 1802 the act

of 1913[99] provided for the redistribution of the Commerce Court judges

among the Circuit Courts of Appeals and the transfer of its jurisdiction

to the district courts.[100]

COMPENSATION

The prohibition against the diminution of judicial salaries has

presented very little litigation. In 1920 in Evans _v._ Gore[101] the

Court invalidated the application of the Income Tax as applied to a

federal judge, over the strong dissent of Justice Holmes, who was joined

by Justice Brandeis. This ruling was extended in Miles _v._ Graham[102]

to exempt the salary of a judge of the Court of Claims appointed

subsequent to the enactment of the taxing act. Evans _v._ Gore was

disapproved and Miles _v._ Graham in effect overruled in O'Malley,

Collector of Internal Revenue _v._ Woodrough,[103] where the Court

upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a))

which extended the application of the Income Tax to salaries of judges

taking office after June 6, 1932. Such a tax was regarded neither as an

unconstitutional diminution of the compensation of judges nor as an

encroachment on the independence of the judiciary.[104] To subject

judges who take office after a stipulated date to a nondiscriminatory

tax laid generally on an income, said the Court, "is merely to recognize

that judges are also citizens, and that their particular function in

government does not generate an immunity from sharing with their fellow

citizens the material burden of the government whose Constitution and

laws they are charged with administering."[105]

Diminution of Salaries

The Appropriations Act of 1932 reduced "the salaries and retired pay of

all judges (except judges whose compensation may not, under the

Constitution, be diminished during their continuance in office)," by

8-1/3 per cent if below $10,000, or to $10,000 if above that figure.

While this provision presented no questions of its own

constitutionality, it did raise the question of what judges' salaries

could be constitutionally reduced. In O'Donoghue _v._ United

States[106] the section was held inapplicable to the salaries of judges

of the courts of the District of Columbia on the ground that as to their

organization and tenure and compensation, Congress was limited by the

provisions of article III. In Williams _v._ United States,[107] on the

other hand, it was ruled that the reduction was applicable to the

salaries of the judges of the Court of Claims, that being a legislative

court created in pursuance of the power of Congress to pay the debts of

the United States and to consent to suits against the United States. As

such it is not within the provisions of article III respecting the

tenure and compensation of judges.

COURTS OF SPECIALIZED JURISDICTION

By virtue of its power "to ordain and establish" courts Congress has

occasionally created courts under article III to exercise a specialized

jurisdiction. Otherwise these tribunals are like other article III

courts in that they exercise "the judicial power of the United States,"

and only that power, that their judges must be appointed by the

President and the Senate and must hold office during good behavior

subject to removal by impeachment only, and that the compensation of

their judges cannot be diminished during their continuance in office.

One example of such courts was the Commerce Court created by the

Mann-Elkins Act of 1910,[108] which was given exclusive jurisdiction of

all cases to enforce orders of the Interstate Commerce Commission except

those involving money penalties and criminal punishment; of cases

brought to enjoin, annul, or set aside orders of the Commission; of

cases brought under the act of 1903 to prevent unjust discriminations;

and of all mandamus proceedings authorized by the act of 1903. This

court actually functioned for less than three years, being abolished in

1913, as was mentioned above.

The Emergency Court of Appeals of 1942

Another court of specialized jurisdiction but created for a limited time

only was the Emergency Court of Appeals organized by the Emergency Price

Control Act of January 30, 1942.[109] By the terms of the statute this

court consisted of three or more judges designated by the Chief Justice

from the judges of the United States district courts and circuit courts

of appeal. The Chief Justice was authorized to designate one of the

judges as chief judge, to designate additional judges from time to time,

and to revoke designations. The chief judge in turn was authorized to

divide the Court into divisions of three or more members each, with any

such division empowered to render judgment as the judgment of the

Court. The Court was vested with jurisdiction and powers of a district

court to hear appeals filed within thirty days against denials of

protests by the Price Administrator and with exclusive jurisdiction to

set aside regulations, orders, or price schedules, in whole or in part,

or to remand the proceeding. But no regulation or price schedule could

be set aside or enjoined unless the Court was satisfied that it was

contrary to law or was arbitrary or capricious. Even then the

effectiveness of a restraining order was to be suspended for thirty days

and, if appealed to the Supreme Court within thirty days, until its

final disposition. Although the act deprived the district courts of the

power to enjoin the enforcement of orders and price schedules, it vested

them with jurisdiction to enforce the act and orders issued thereunder

in actions brought by the Administrator to enjoin violations and to try

criminal prosecutions brought by the Attorney General. Since the

Emergency Court of Appeals, subject to review by the Supreme Court, was

given exclusive jurisdiction to determine the validity of any order

issued under the act, it resulted that the district courts were deprived

of the power to inquire into the validity of orders involved in civil or

criminal proceedings in which they had jurisdiction.[110]

Judicial Review Restrained

In Yakus _v._ United States[111] the Court held in an opinion by Chief

Justice Stone that there is "no principle of law or provision of the

Constitution which precludes Congress from making criminal the violation

of an administrative regulation, by one who has failed to avail himself

of an adequate separate procedure for the adjudication of its validity,

or which precludes the practice, in many ways desirable, of splitting

the trial for violations of an administrative regulation by committing

the determination of the issue of its validity to the agency which

created it, and the issue of violation to a court which is given

jurisdiction to punish violations. Such a requirement presents no novel

constitutional issue."[112] In a dissent Justice Rutledge took issue

with this holding, saying: "It is one thing for Congress to withhold

jurisdiction. It is entirely another to confer it and direct that it be

exercised in a manner inconsistent with constitutional requirements or,

what in some instances may be the same thing, without regard to them.

Once it is held that Congress can require the courts criminally to

enforce unconstitutional laws or statutes, including regulations, or to

do so without regard for their validity, the way will have been found to

circumvent the supreme law and, what is more, to make the courts parties

to doing so. This Congress cannot do. There are limits to the judicial

power. Congress may impose others. And in some matters Congress or the

President has final say under the Constitution. But whenever the

judicial power is called into play, it is responsible directly to the

fundamental law and no other authority can intervene to force or

authorize the judicial body to disregard it. The problem therefore is

not solely one of individual right or due process of law. It is equally

one of the separation and independence of the powers of government and

of the constitutional integrity of the judicial process, more especially

in criminal trials."[113]

LEGISLATIVE COURTS: THE CANTER CASE

Quite distinct from special courts exercising the judicial power of the

United States, but at the same time a significant part of the federal

judiciary, are the legislative courts, so called because they are

created by Congress in pursuance of its general legislative powers. The

distinction between constitutional courts and legislative courts was

first made in American Insurance Company _v._ Canter,[114] which

involved the question of the admiralty jurisdiction of the territorial

court of Florida, the judges of which were limited to a four-year term

in office. Said Chief Justice Marshall for the Court: "These courts,

then, are not constitutional courts, in which the judicial power

conferred by the Constitution on the general government, can be

deposited. They are incapable of receiving it. They are legislative

courts, created in virtue of the general right of sovereignty which

exists in the government, or in virtue of that clause which enables

Congress to make all needful rules and regulations, respecting the

territory belonging to the United States. The jurisdiction with which

they are invested, is not a part of that judicial power which is defined

in the 3rd article of the Constitution, but is conferred by Congress, in

the execution of those general powers which that body possesses over the

territories of the United States."[115] The Court went on to hold that

admiralty jurisdiction can be exercised in the States in those courts

only which are established in pursuance of article III, but that the

same limitation does not apply to the territorial courts; for, in

legislating for them, "Congress exercises the combined powers of the

general, and of a State government."[116]

Other Legislative Courts

The distinction made in the Canter case has been repeated with

elaborations since 1828, receiving its fullest exposition in Ex parte

Bakelite Corporation,[117] which contains a review of the history of

legislative courts and the cases supporting the power of Congress to

create them. In addition to discussing the derivation of power to

establish legislative courts, the Bakelite case ruled that such courts

"also may be created as special tribunals to examine and determine

various matters, arising between the government and others, which from

their nature do not require judicial determination and yet are

susceptible of it. The mode of determining matters of this class is

completely within Congressional control. Congress may reserve to itself

the power to decide, may delegate that power to executive officers, or

may commit it to judicial tribunals."[118] Among the matters susceptible

of judicial determination but not requiring it are claims against the

States,[119] the disposal of the public lands and claims arising

therefrom,[120] questions concerning membership in the Indian

tribes,[121] and questions arising out of the administration of the

customs and internal revenue laws.[122] For the determination of these

matters Congress has created the Court of Claims, the Court of Private

Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of

Customs, the Court of Customs and Patent Appeals, and the Tax Court of

the United States (formerly the Board of Tax Appeals).

Power of Congress Over Legislative Courts

In creating legislative courts Congress is not limited by the

restrictions imposed in article III concerning tenure during good

behavior and the prohibition against limitation of salaries. Congress

may limit tenure to a term of years, as it has done in acts creating

territorial courts and the Tax Court of the United States, and it may

subject the judges of legislative courts to removal by the

President.[123] In McAllister _v._ United States,[124] the removal of a

territorial judge was sustained on the basis of the principle that: "The

whole subject of the organization of territorial courts, the tenure by

which the judges of such courts shall hold their offices, the salary

they receive and the manner in which they may be removed or suspended

from office, was left, by the Constitution, with Congress under its

plenary power over the Territories of the United States."[125] Long

afterwards the Court held in Williams _v._ United States[126] that the

reduction of the salaries of the judges of the Court of Claims, and

inferentially of judges of other legislative courts, to $10,000 per year

by the Appropriation Act of June 30, 1932, was constitutional. In so

doing the Court rejected dicta in earlier cases which classified the

Court of Claims as a constitutional court and silently reversed Miles

_v._ Graham,[127] which had held that Congress could not include the

salary of a judge of the Court of Claims in his taxable income.

Status of the Court of Claims

It follows, too, that in creating legislative courts, Congress can vest

in them nonjudicial functions of a legislative or advisory nature and

deprive their judgments of finality. Thus in Gordon _v._ United

States[128] there was no objection to the power of the Secretary of the

Treasury and Congress to revise or suspend the early judgments of the

Court of Claims. Likewise in United States _v._ Ferreira[129] the Court

sustained the act conferring powers on the Florida territorial court to

examine claims arising under the Spanish treaty and to report his

decisions and the evidence on which they were based to the Secretary of

the Treasury for subsequent action. "A power of this description," it

was said, "may constitutionally be conferred on a Secretary as well as

on a commissioner. But [it] is not judicial in either case, in the sense

in which judicial power is granted by the Constitution to the courts of

the United States."

A Judicial Paradox

Chief Justice Taney's view in the Gordon case that the judgments of

legislative courts could never be reviewed by the Supreme Court was

tacitly rejected in De Groot _v._ United States,[130] when the Court

took jurisdiction from a final judgment of the Court of Claims. Since

the decision of this case in 1867 the authority of the Supreme Court to

exercise appellate jurisdiction over legislative courts has turned not

upon the nature or status of such courts, but rather upon the nature of

the proceeding before the lower Court and the finality of its judgment.

Consequently in proceedings before a legislative court which are

judicial in nature and admit of a final judgment the Supreme Court may

be vested with appellate jurisdiction. Thus there arises the workable

anomaly that though the legislative courts can exercise no part of the

judicial power of the United States and the Supreme Court can exercise

only that power, the latter nonetheless can review judgments of the

former. However, it should be emphasized that the Supreme Court will

neither review the administrative proceedings of legislative courts nor

entertain appeals from the advisory or interlocutory decrees of such

courts.[131]

STATUS OF THE COURTS OF THE DISTRICT OF COLUMBIA

Through a long course of decisions the courts of the District of

Columbia were regarded as legislative courts upon which Congress could

impose nonjudicial functions. In Butterworth _v._ United States ex rel.

Hoe,[132] the Court sustained an act of Congress which conferred

revisionary powers upon the Supreme Court of the District in patent

appeals and made its decisions binding only upon the Commissioner of

Patents. Similarly, the Court later sustained the authority of Congress

to vest revisionary powers in the same court over rates fixed by a

public utilities commission.[133] Not long after this the same rule was

applied to the revisionary power of the District Supreme Court over

orders of the Federal Radio Commission.[134] These rulings were based on

the assumption, express or implied, that the courts of the District were

legislative courts, created by Congress in pursuance of its plenary

power to govern the District of Columbia. In an obiter dictum in Ex

parte Bakelite Corporation,[135] while reviewing the history and

analyzing the nature of legislative courts, the Court stated that the

courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta on the

subject, found the courts of the District of Columbia to be

constitutional courts exercising judicial power of the United

States,[136] with the result of shouldering the task of reconciling the

performance of nonjudicial functions by such courts with the rule that

constitutional courts can exercise only the judicial power of the United

States. This task was easily accomplished by the argument that in

establishing courts for the District, Congress is performing dual

functions in pursuance of two distinct powers, the power to constitute

tribunals inferior to the Supreme Court, and its plenary and exclusive

power to legislate for the District of Columbia. However, article III,

Sec. 1, limits this latter power with respect to tenure and compensation,

but not with regard to vesting legislative and administrative powers in

such courts. Subject to the guarantees of personal liberty in the

Constitution, "Congress has as much power to vest courts of the District

with a variety of jurisdiction and powers as a State legislature has in

conferring jurisdiction on its courts."[137] The effect of the

O'Donoghue decision is to confer a dual status on the courts of the

District of Columbia. As regards their organization, and the tenure and

compensation of their judges they are constitutional courts, as regards

jurisdiction and powers they are simultaneously legislative and

constitutional courts, and as such can be vested with nonjudicial powers

while sharing the judicial power of the United States.[138]

Jurisdiction: Cases and Controversies

Section 2. The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made, under their

Authority;--to all Cases affecting Ambassadors, other public Ministers

and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to

Controversies to which the United States shall be a Party;--to

Controversies between two or more States;--between a State and Citizens

of another State;--between Citizens of different States;--between

Citizens of the same State claiming Lands under Grants of different

States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

THE TWO CLASSES OF CASES AND CONTROVERSIES

By the terms of the foregoing section the judicial power extends to nine

classes of cases and controversies, which fall into two general groups.

In the words of Chief Justice Marshall in Cohens _v._ Virginia:[139] "In

the first, their jurisdiction depends on the character of the cause,

whoever may be the parties. This class comprehends 'all cases in law and

equity arising under this constitution, the laws of the United States,

and treaties made, or which shall be made, under their authority.' This

cause extends the jurisdiction of the Court to all the cases described,

without making in its terms any exception whatever, and without any

regard to the condition of the party. If there be any exception, it is

to be implied, against the express words of the article. In the second

class, the jurisdiction depends entirely on the character of the

parties. In this are comprehended 'controversies between two or more

States, between a State and citizens of another State,' and 'between a

State and foreign States, citizens or subjects.' If these be the

parties, it is entirely unimportant, what may be the subject of

controversy. Be it what it may, these parties have a constitutional

right to come into the courts of the Union."[140]

Judicial power is "the power of a court to decide and pronounce a

judgment and carry it into effect between persons and parties who bring

a case before it for decision."[141] The meaning attached to the terms

"cases" and "controversies" determines therefore the extent of the

judicial power, as well as the capacity of the federal courts to receive

jurisdiction. As Chief Justice Marshall declared in Osborn _v._ Bank of

the United States, judicial power is capable of acting only when the

subject is submitted in a case, and a case arises only when a party

asserts his rights "in a form prescribed by law."[142] Many years later

Justice Field, relying upon Chisholm _v._ Georgia,[143] and Tucker's

edition of Blackstone, amended this definition by holding that

"controversies," to the extent that they differ from "cases," include

only suits of a civil nature. He continued: "By cases and controversies

are intended the claims of litigants brought before the courts for

determination by such regular proceedings as are established by law or

custom for the protection or enforcement of rights, or the prevention,

redress, or punishment of wrongs. Whenever the claim of a party under

the Constitution, laws, or treaties of the United States takes such a

form that the judicial power is capable of acting upon it, then it has

become a case. The term implies the existence of present or possible

adverse parties whose contentions are submitted to the Court for

adjudication."[144] The definitions propounded by Chief Justice Marshall

and Justice Field were quoted with approval in Muskrat _v._ United

States,[145] where the Court held that the exercise of judicial power is

limited to cases and controversies and emphasized "adverse litigants,"

"adverse interests," an "actual controversy," and conclusiveness or

finality of judgment as essential elements of a case.[146]

ADVERSE LITIGANTS

The necessity of adverse litigants with real interests has been stressed

in numerous cases,[147] and has been particularly emphasized in suits to

contest the validity of a federal or State statute. A few illustrations

will suffice to describe the practical operation of these limitations.

In Chicago and Grand Trunk Railroad Co. _v._ Wellman,[148] which

originated in the courts of Michigan on an agreed statement of facts

between friendly parties desiring to contest a rate-making statute, the

Supreme Court ruled there was no case or controversy. In the course of

its opinion, which held that the courts have no "immediate and general

supervision" of the constitutionality of legislative enactments, the

Court said: "Whenever, in pursuance of an honest and actual antagonistic

assertion of rights by one individual against another, there is

presented a question involving the validity of any act of any

legislature, State or Federal, and the decision necessarily rests on the

competency of the legislature to so enact, the court must, in the

exercise of its solemn duties, determine whether the act be

constitutional or not; but such an exercise of power is the ultimate and

supreme function of courts. It is legitimate only in the last resort,

and as a necessity in the determination of real, earnest and vital

controversy between individuals. It never was the thought that, by means

of a friendly suit, a party beaten in the legislature could transfer to

the courts an inquiry as to the constitutionality of the legislative

act."[149]

In applying the rule requiring adverse litigants to present an honest

and actual antagonistic assertion of rights, the Court invalidated an

act of Congress which authorized certain Indians to bring suits against

the United States to test the constitutionality of the Indian allotment

acts, on the ground that such a proceeding was not a case or controversy

in that the United States had no interest adverse to the claimants.[150]

The Court has also held that in contesting the validity of a statute,

the issue must be raised by one adversely affected and not a stranger to

the operation of the statute,[151] and that the interest must be of a

personal as contrasted with an official interest.[152] Hence a county

court cannot contest the validity of a statute in the interest of third

parties,[153] nor can a county auditor contest the validity of a statute

even though he is charged with its enforcement,[154] nor can directors

of an irrigation district occupy a position antagonistic to it.[155] It

is a well settled rule that: "The Court will not pass upon the

constitutionality of legislation * * *, or upon the complaint of one who

fails to show that he is injured by its operation, * * *"[156] It is

equally well established as a corollary that, "litigants may challenge

the constitutionality of a statute only insofar as it affects

them."[157]

STOCKHOLDERS' SUITS

It must be noted, however, that adversity is a relative element which

the courts may or may not discover. Thus in Pollock _v._ Farmers' Loan

and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a

district court which had enjoined the company from paying an income tax

even though the suit was brought by a stockholder against the company,

thereby circumventing section 3224 of the Revised Statutes, which

forbids the maintenance in any court of a suit "for the purpose of

restraining the collection of any tax."[159] Subsequently the Court has

found adversity of parties in a suit brought by a stockholder to

restrain a title company from investing its funds in farm loan bonds

issued by the federal land banks,[160] and in a suit brought by certain

preferred stockholders against the Alabama Power Company and the TVA to

enjoin the performance of contracts between the company and the

authority and a subsidiary, the Electric Home and Farm Authority, on the

ground that the act creating these agencies was unconstitutional.[161]

The ability to find adversity in narrow crevices of casual disagreement

is well illustrated by Carter _v._ Carter Coal Co.,[162] where the

President of the company brought suit against the company and its

officials, among whom was Carter's father who was Vice President of the

Company.[163] The Court entertained the suit and decided the case on its

merits.

SUBSTANTIAL INTEREST DOCTRINE

Equally important as an essential element of a case is the concept of

real or substantial interests. As a general rule the interest of

taxpayers in the general funds of the federal Treasury is insufficient

to give them a standing in court to contest the expenditure of public

funds on the ground that this interest "is shared with millions of

others; is comparatively minute and indeterminable; and the effect upon

future taxation, of any payment out of the funds, so remote, fluctuating

and uncertain, that no basis is afforded for an appeal to the preventive

powers of a court of equity."[164] Likewise, the Court has held that the

general interest of a citizen in having the government administered by

law does not give him a standing to contest the validity of governmental

action.[165] Nor can a member of the bar of the Supreme Court challenge

the validity of an appointment to the Court since his "is merely a

general interest common to all members of the public."[166] Similarly an

electric power company has been held not to have a sufficient interest

to maintain an injunction suit to restrain the making of federal loans

and grants to municipalities for the construction or purchase of

electric power distribution plants on the ground that the "lender owes

the sufferer no enforcible duty to refrain from making the unauthorized

loan; and the borrower owes him no obligation to refrain from using the

proceeds in any lawful way the borrower may choose."[167] Recent cases,

involving the issue of religion in the schools, reach somewhat divergent

results. In Illinois ex rel. McCollum _v._ Board of Education,[168] the

Court held that a litigant had the requisite standing to bring a

mandamus suit challenging, on the basis of her interests as a resident

and taxpayer of the school district and the parent of a child required

by law to attend the school or one meeting the State's educational

requirements, the validity of a religious education program involving

the use of public school rooms one half hour each week. But in Doremus

_v._ Board of Education,[169] decided early in 1952, the Court declined

jurisdiction in a case challenging the validity of a New Jersey statute

which requires the reading at the opening of each public school day of

five verses of the Old Testament. Appellants' interest as taxpayers was

found to be insufficient to sustain the proceeding.

Substantial Interest in Suits by States

These principles have been applied in a number of cases to which a State

was one of the parties and in suits between States. One of the most

important of these is State of Georgia _v._ Stanton,[170] which was an

original suit in equity brought by the State of Georgia against the

Secretary of War and others to enjoin the enforcement of the

Reconstruction Acts. The State's counsel contended that enforcement of

the acts brought about "an immediate paralysis of all the authority and

power of the State government by military force; * * * [which was

divesting the State] of her legally and constitutionally established and

guaranteed existence as a body politic and a member of the Union." The

Supreme Court dismissed the suit for want of jurisdiction, holding that

for a case to be presented for the exercise of the judicial power, the

rights threatened "must be rights of persons or property, not merely

political rights, which do not belong to the jurisdiction of a court,

either in law or equity."[171] The rule of the Stanton case was applied

and elaborated in Massachusetts _v._ Mellon,[172] where the State in its

own behalf and as _parens patriae_ sought to enjoin the administration

of the Maternity Act[173] which, it was alleged, was an unconstitutional

invasion of the reserved rights of the State and an impairment of its

sovereignty. The suit was held not justiciable on the ground that a

State cannot maintain a suit either to protect its political rights or

as _parens patriae_ to protect citizens of the United States against the

operation of a federal law. Concerning the right of a State to sue in

its own behalf to protect its political rights, the Court said: "In that

aspect of the case we are called upon to adjudicate, not rights of

person or property, not rights of dominion over physical domain, not

quasi sovereign rights actually invaded or threatened, but abstract

questions of political power, of sovereignty, of government."[174]

However, these holdings do not affect the right of a State as _parens

patriae_ to intervene in behalf of the economic welfare of its citizens

against discriminatory rates set by an alleged illegal combination of

carriers,[175] or the right of a State to assert its quasi sovereign

rights over wild life within its domain,[176] or to protect its citizens

against the discharge of noxious gases by an industrial plant in an

adjacent State.[177]

ABSTRACT, CONTINGENT, AND HYPOTHETICAL QUESTIONS

Closely related to the requirements of adverse parties and substantial

interests is that of a _real_ issue as contrasted with _speculative_,

abstract, hypothetical, or moot cases. As put by Chief Justice Stone in

Alabama State Federation of Labor _v._ McAdory,[178] it has long been

the Court's "considered practice not to decide abstract, hypothetical or

contingent questions," or as Justice Holmes said years earlier by way of

dictum, a party cannot maintain a suit "for a mere declaration in the

air."[179] Texas _v._ Interstate Commerce Commission,[180] presents a

good illustration of an abstract question. Here, Texas attempted to

enjoin the enforcement of the Transportation Act of 1920 on the ground

that it invaded the reserved rights of the State. The Court dismissed

the complaint as presenting no case or controversy, declaring: "It is

only where rights, in themselves appropriate subjects of judicial

cognizance, are being, or about to be, affected prejudicially by the

application or enforcement of a statute that its validity may be called

in question by a suitor and determined by an exertion of the judicial

power."[181] Again in Ashwander _v._ Tennessee Valley Authority,[182]

the Court refused to decide any issue save that of the validity of the

contracts between the Authority and the Company because, "The

pronouncements, policies and program of the Tennessee Valley Authority

and its directors, their motives and desires, did not give rise to a

justiciable controversy save as they had fruition in action of a

definite and concrete character constituting an actual or threatened

interference with the rights of the persons complaining." Chief Justice

Hughes cited New York _v._ Illinois,[183] where the Court dismissed a

suit as presenting abstract questions "as to the possible effect of the

diversion of water from Lake Michigan upon hypothetical water power

developments in the indefinite future."[184] He also cited among other

cases Arizona _v._ California,[185] where it was held that claims based

merely upon assumed potential invasions of rights were not enough to

warrant judicial intervention.

The concepts of real interests and abstract questions again appear

prominently in United Public Workers of America _v._ Mitchell.[186] Here

a number of government employees sued to enjoin the Civil Service

Commission from enforcing the prohibitions of the Hatch Act against

activity in political management or campaigns, and to obtain a

declaratory judgment that the act was invalid. Except for one of the

employees none had violated the act, but they did state that they

desired to engage in the forbidden political activities. The Court held

that as to all the parties save the one who had violated the act there

was no justiciable controversy. "Concrete legal issues, presented in

actual cases, not abstractions" were declared to be requisite. The

generality of their objection was regarded as really an attack on the

political expediency of the Hatch Act.[187]

From the rule that courts will not render advisory opinions or write

essays in political theory on speculative issues, it follows logically

that they will not determine moot cases or suits arranged by collusion

between parties who have no opposing interests. A moot case has been

defined as "one which seeks to get a judgment on a pretended

controversy, when in reality there is none, or a decision in advance

about a right before it has been actually asserted and contested, or a

judgment upon some matter which, when rendered, for any reason, cannot

have any practical legal effect upon a then existing controversy."[188]

Cases may become moot because of a change in the law, or the status of

the litigants, or because of some act of the parties which dissolves the

controversy.[189] Just as courts will not speculate an hypothetical

question, so they will not analyze dead issues.[190] The duty of every

federal court, said Justice Gray, "is to decide actual controversies by

a judgment which can be carried into effect, and not give opinions upon

moot questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter at issue in the case before

it."[191]

POLITICAL QUESTIONS

The rule has been long established that the courts have no general

supervisory power over the executive or administrative branches of

government.[192] In Decatur _v._ Paulding,[193] which involved an

attempt by mandamus to compel the Secretary of the Navy to pay a

pension, the Supreme Court in sustaining denial of relief stated: "The

interference of the courts with the performance of the ordinary duties

of the executive departments of the government, would be productive of

nothing but mischief; and we are quite satisfied, that such a power was

never intended to be given to them."[194] It follows, therefore, that

mandamus will lie against an executive official only to compel the

performance of a ministerial duty which admits of no discretion as

contrasted with executive or political duties which admit of

discretion.[195] It follows, too, that an injunction will not lie

against the President,[196] or against the head of an executive

department to control the exercise of executive discretion.[197] These

principles are well illustrated by Georgia _v._ Stanton,[198]

Mississippi _v._ Johnson,[199] and Kendall _v._ United States ex rel.

Stokes.[200]

Origin of the Concept

The concept of "political question" is an old one. As early as Marbury

_v._ Madison,[201] Chief Justice Marshall stated: "The province of the

court is, solely, to decide on the rights of individuals, not to inquire

how the executive, or executive officers, perform duties in which they

have a discretion. Questions in their nature political, or which are, by

the constitution and laws, submitted to the executive, can never be made

in this court." The concept, as distinguished from that of interference

with executive functions, was first elaborated in Luther _v._

Borden,[202] which involved the meaning of "a republican form" of

government and the question of the lawful government of Rhode Island

among two competing groups purporting to act as the lawful authority.

"It is the province of a court to expound the law, not to make it,"

declared Chief Justice Taney. "And certainly it is no part of the

judicial functions of any court of the United States to prescribe the

qualification of voters in a State, * * *; nor has it the right to

determine what political privileges the citizens of a State are entitled

to, unless there is an established constitution or law to govern its

decision."[203] The Court went on to hold that such matters as the

guaranty to a State of a republican form of government and of protection

against invasion and domestic violence are political questions committed

to Congress and the President whose decisions are binding upon the

courts.[204]

Exemplifications of the Doctrine

From this case and later applications of it, a political question may be

defined as a question relating to the possession of political power, of

sovereignty, of government, the determination of which is vested in

Congress and the President whose decisions are conclusive upon the

courts. The more common classifications[205] of cases involving

political questions are: (1) those which raise the issue of what proof

is required that a statute has been enacted,[206] or a constitutional

amendment ratified;[207] (2) questions arising out of the conduct of

foreign relations;[208] (3) the termination of wars,[209] or

rebellions;[210] the questions of what constitutes a republican form of

government,[211] and the right of a state to protection against invasion

or domestic violence;[212] questions arising out of political actions of

States in determining the mode of choosing presidential electors,[213]

State officials,[214] and reapportionment of districts for Congressional

representation;[215] and suits brought by States to test their political

and so-called sovereign rights.[216] The leading case on the evidence

required to prove the enactment of a statute is Field _v._ Clark,[217]

where it was held that the enactment of a statute is conclusively proved

by the enrolled act signed by the speaker of the House of

Representatives and the President of the Senate, and the Court will not

look beyond these formalities of record by examining the journals of the

two houses of Congress or other records. Similarly, the Court has held

that the efficacy of the ratification of a proposed constitutional

amendment in the light of previous rejection or subsequent attempted

withdrawal is political in nature, pertaining to the political

departments, with the ultimate authority in Congress by virtue of its

control over the promulgation of the adoption of amendments.[218]

Simultaneously, the Court ruled that the question of the lapse of a

reasonable length of time between proposal and ratification is for

Congress to determine and not the Court.[219]

Recent Cases

A few cases will suffice to illustrate the application of the concept of

political questions since 1938. In Colegrove _v._ Green,[220] a

declaratory judgment was sought to have the division of Illinois into

Congressional districts declared invalid as a violation of the equal

protection of the laws. Justice Frankfurter in announcing the judgment

of the Court, in an opinion in which Justices Reed and Burton joined,

was of the opinion that dismissal of the suit was required both by the

decision in Wood _v._ Broom,[221] that there is no federal requirement

that Congressional districts shall contain as nearly as practicable an

equal number of inhabitants, and because the question was not

justiciable. Justice Rutledge thought that Smiley _v._ Holm[222]

indicated that the question was justiciable but concurred in the result

on the ground that the case was one in which the courts should decline

to exercise jurisdiction.[223] Justice Black in a dissent supported by

Justices Douglas and Murphy thought that the case was justiciable and

would have invalidated the reapportionment, leaving the State free to

elect all of its representatives from the State at large.[224] In

MacDougall _v._ Green,[225] however, the Court seemed to regard as

justiciable the question of the validity of the provision of the

Illinois Election Code requiring that a petition for the nomination of

candidates of a new political party be signed by 25,000 voters including

at least 200 from each of at least 50 of the States' 102 counties, for

it went on to sustain the provision in a brief _per curiam_ opinion. In

Ludecke _v._ Watkins,[226] the Court held, as it had earlier, that the

determination of the cessation of a state of war is a question for the

political branch of the Government and not for the courts. Nevertheless,

the Court actually found a state of war to exist between the United

States and Germany after the end of hostilities, and ruled that an enemy

alien is not entitled to judicial review in a deportation proceeding.

Very recently in South _v._ Peters,[227] the Court refused to pass upon

the validity of the county unit scheme used in Georgia for the

nomination of candidates in primary elections.

ADVISORY OPINIONS

Perhaps no portion of Constitutional Law pertaining to the judiciary has

evoked such unanimity as the rule that the federal courts will not

render advisory opinions. In 1793 the Supreme Court refused to grant the

request of President Washington and Secretary of State Jefferson to

construe the treaties and laws of the United States pertaining to

questions of international law arising out of the wars of the French

Revolution. After convening the Court which considered the request,

Chief Justice Jay replied to President Washington concerning the

functions of the three departments of government: "These being in

certain respects checks upon each other, and our being Judges of a Court

in the last resort, are considerations which afford strong arguments

against the propriety of our extra-judicially deciding the questions

alluded to, especially as the power given by the Constitution to the

President, of calling on the heads of departments for opinions, seems to

have been _purposely_ as well as expressly united to the _Executive_

departments."[228] Since 1793 the Court has frequently reiterated the

early view that the federal courts organized under article III cannot

render advisory opinions or that the rendition of advisory opinions is

not a part of the judicial power of the United States.[229]

Even in the absence of this early precedent, the rule that

constitutional courts will render no advisory opinions would have

logically emerged from the rule subsequently developed, that

constitutional courts can only decide cases and controversies in which

an essential element is a final and binding judgment on the parties. As

stated by Justice Jackson, when the Court refused to review an order of

the Civil Aeronautics Board, which in effect was a mere recommendation

to the President for his final action, "To revise or review an

administrative decision which has only the force of a recommendation to

the President would be to render an advisory opinion in its most

obnoxious form--advice that the President has not asked, tendered at the

demand of a private litigant, on a subject concededly within the

President's exclusive, ultimate control. This Court early and wisely

determined that it would not give advisory opinions even when asked by

the Chief Executive. It has also been the firm and unvarying practice of

Constitutional Courts to render no judgments not binding and conclusive

on the parties and none that are subject to later review or alteration

by administrative action."[230] The early refusal of the Court to render

advisory opinions has discouraged direct requests for advice so that the

advisory opinion has appeared only collaterally in cases where there was

a lack of adverse parties,[231] or where the judgment of the Court was

subject to later review or action by the executive or legislative

branches of government,[232] or where the issues involved were abstract

or contingent.[233]

DECLARATORY JUDGMENTS

The rigid emphasis placed upon such elements of the judicial power as

finality of judgment and an award of execution in United States _v._

Ferreira,[234] Gordon _v._ United States[235], and Liberty Warehouse

_v._ Grannis,[236] coupled with the equally rigid emphasis upon adverse

parties and real interests as essential elements of a case or

controversy in Muskrat _v._ United States,[237] created serious doubts

concerning the validity of a proposed federal declaratory judgment act.

These were dispelled to some extent by Fidelity National Bank _v._

Swope,[238] which held that an award of execution is not an essential

part of every judgment and contained general statements in opposition to

the principles of the Grannis and Willing cases. Then in 1933 the

Supreme Court entertained an appeal from a declaratory judgment rendered

by the Tennessee Courts in Nashville, C. & St. L.R. Co. _v._

Wallace,[239] and in doing so declared that the Constitution does not

require that a case or controversy be presented by traditional forms of

procedure, involving only traditional remedies, and that article III

defined and limited judicial power not the particular method by which

that power may be invoked or exercised. The Federal Declaratory

Judgments Act of 1934 was in due course upheld in Aetna Life Insurance

Co. _v._ Haworth,[240] as a valid exercise of Congressional power over

the practice and procedure of federal courts which includes the power to

create and improve as well as to abolish or restrict.

The Declaratory Judgment Act of 1934

The act of 1934 was carefully drawn, and provided that: "In cases of

actual controversy the courts of the United States shall have power

* * * to declare rights and other legal relations of any interested

party petitioning for such declaration, whether or not further relief is

or could be prayed, and such declaration shall have the force and

effect of a final judgment or decree and be reviewable as such." The

other two sections provided for further relief whenever necessary and

proper and for jury trials of matters of fact.[241] In the first case

involving private parties exclusively to arise under the act, Aetna Life

Insurance Co. _v._ Haworth,[242] the Court held that a declaration

should have been issued by the district court, although it reiterated

with the usual emphasis the necessity of adverse parties, a justiciable

controversy and specific relief. In the Ashwander case it approved the

refusal of the lower Court to issue a declaration generally on the

constitutionality of the Tennessee Valley Authority, because the act of

1934 applied only to "cases of actual controversy." In the same case the

Court itself refused to pass upon the navigability of the New and

Kanawha rivers and the authority of the Federal Power Commission even at

the request of the United States, on the ground that the bill did no

more than state a difference of opinion between the United States and

West Virginia to which the judicial power did not extend.[243]

Similarly, in Electric Bond & Share Co. _v._ Securities and Exchange

Commission,[244] the Court refused to decide any constitutional issues

arising out of the Public Utility Holding Company Act of 1935 except the

registration provisions because the cross bill in which the company had

asked for a declaration that the whole act was unconstitutional was

regarded as presenting a variety of hypothetical questions that might

never become real.

The "Case" or "Controversy" Test in Declaratory Judgment Proceedings

The insistence of the Court upon the rule that "the requirements for a

justiciable case or controversy are no less strict in a declaratory

judgment proceeding than in any other type of suit,"[245] and the fact

that many actions for a declaration of rights have involved the validity

of legislation, where the Court is even more insistent upon the

essentials of a case, have done much to limit the use of the declaratory

judgment. There are, nevertheless, a number of cases, some of which

involved constitutional issues, in which a declaratory judgment has been

rendered. Among these are Currin _v._ Wallace,[246] where tobacco

warehousemen and auctioneers contested the validity of the Tobacco

Inspection Act under which the Secretary of Agriculture had already

designated a tobacco market for inspection and grading; Perkins _v._

Elg,[247] where a natural-born citizen of naturalized parents who left

the country during her minority sought to establish her status as a

citizen; Maryland Casualty Co. _v._ Pacific Coal and Oil Co.,[248] where

a liability insurer sought to establish his lack of liability in an

automobile collision case; and Aetna Life Insurance Co. _v._

Haworth,[249] where a declaration was sought under the disability

benefit clauses of an insurance policy. As stated by Justice Douglas for

the Court in the Maryland Casualty case: "The difference between an

abstract question and a 'controversy' contemplated by the Declaratory

Judgment Act is necessarily one of degree, and it would be difficult, if

it would be possible, to fashion a precise test for determining in every

case whether there is such a controversy. Basically, the question in

each case is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment."[250] It remains, therefore, for

the courts to determine in each case the degree of controversy necessary

to establish a case for purposes of jurisdiction. Even, then, however,

the Court is under no compulsion to exercise its jurisdiction.[251]

Cases Arising Under the Constitution, Laws and Treaties of the United

States

DEFINITION

Cases arising under the Constitution are cases which require an

interpretation of the Constitution for their correct decision.[252] They

arise when a litigant claims an actual or threatened invasion of his

constitutional rights by the enforcement of some act of public

authority, usually an act of Congress or of a State legislature, and

asks for judicial relief. The clause furnishes the textual basis for the

fountain-head of American Constitutional Law, in the strict sense of the

term, which fountain-head is Judicial Review, or the power and duty of

the courts to pass upon the constitutional validity of legislative acts

which they are called upon to recognize and enforce in cases coming

before them, and to declare void and refuse enforcement to such as do

not accord with their own interpretation of the Constitution.

JUDICIAL REVIEW

The supremacy clause clearly recognizes judicial review of State

legislative acts in relation not only to the Constitution, but also in

relation to acts of Congress which are "in pursuance of the

Constitution," and in relation to "treaties made or which shall be made

under the authority of the United States." These constitute "the supreme

law of the land," and "the judges in every State shall be bound thereby,

anything in the Constitution or laws of any State to the contrary

notwithstanding." This provision was originally implemented by the

famous twenty-fifth section of the Judiciary Act of 1789 which provided

that final judgments or decrees of the highest courts of law or equity

in the States in which a decision could be had, "where is drawn in

question the validity of a treaty or statute of, or an authority

exercised under the United States, and the decision is against their

validity; or where is drawn in question the validity of a statute of, or

an authority exercised under any State, on the ground of their being

repugnant to the Constitution, treaties or laws of the United States,

and the decision is in favour of such their validity, or where is drawn

in question the construction of any clause of the Constitution, or of a

treaty, or statute of, or commission held under the United States, and

the decision is against the title, right, privilege or exemption

specially set up or claimed by either party, under such clause of the

said Constitution, treaty, statute or commission, may be re-examined and

reversed or affirmed in the Supreme Court of the United States upon a

writ of error, * * *"[253]

JUDICIAL REVIEW AND NATIONAL SUPREMACY

A quarter of a century after its enactment the validity of this section

was challenged on States' Rights premises in Martin _v._ Hunter's

Lessee,[254] and seven years after that in Cohens _v._ Virginia.[255]

The States' Rights argument was substantially the same in both cases. It

amounted to the contention that while the courts of Virginia were

constitutionally obliged to prefer "the supreme law of the land" as

defined in the supremacy clause over conflicting State laws it was only

by their own interpretation of the said supreme law that they, as the

courts of a sovereign State, were bound. Furthermore, it was contended

that cases did not "arise" under the Constitution unless they were

brought in the first instance by some one claiming such a right, from

which it followed that "the judicial power of the United States" did not

"extend" to such cases unless they were brought in the first instance in

the courts of the United States. In answer to these arguments Chief

Justice Marshall declared that: "A case in law or equity consists of

the right of the one party, as well as of the other, and may truly be

said to arise under the Constitution or a law of the United States,

whenever its correct decision depends upon the construction of

either."[256] Passing then to broader considerations, he continued: "Let

the nature and objects of our Union be considered; let the great

fundamental principles, on which the fabric stands, be examined; and we

think, the result must be, that there is nothing so extravagantly

absurd, in giving to the Court of the nation the power of revising the

decisions of local tribunals, on questions which affect the nation, as

to require that words which import this power should be restricted by a

forced construction."[257]

JUDICIAL REVIEW OF ACTS OF CONGRESS

Judicial review of acts of Congress is not provided for in the

Constitution in such explicit terms as is judicial review of State

legislation, but it is nevertheless fairly evident that its existence is

assumed. In the first place, the term "cases arising under the

Constitution" is just as valid a textual basis for the one type of

constitutional case as for the other; and, in the second place, it is

clearly indicated that acts of Congress are not "supreme law of the

land" unless they are "in pursuance of the Constitution," thus evoking a

question which must be resolved in the first instance by State judges,

when State legislation coming before them for enforcement is challenged

in relation to "the supreme law of the land." Furthermore, most of the

leading members of the Federal Convention are on record

contemporaneously, though not always in the Convention itself, as

accepting the idea.[258]

HAMILTON'S ARGUMENT

The argument for judicial review of acts of Congress was first

elaborated in full by Alexander Hamilton in the Seventy-eighth Number of

_The Federalist_ while the adoption of the Constitution was pending.

Said Hamilton: "The interpretation of the laws is the proper and

peculiar province of the courts. A constitution is, in fact, and must be

regarded by the judges as a fundamental law. It must therefore belong to

them to ascertain its meaning, as well as the meaning of any particular

act proceeding from the legislative body. If there should happen to be

an irreconcilable variance between the two, that which has the superior

obligation and validity ought, of course, to be preferred; or in other

words, the Constitution ought to be preferred to the statute, the

intention of the people to the intention of their [legislative]

agents."[259] It was also set forth as something commonly accepted by

Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words:

"If any act of Congress, or of the Legislature of a state, violates

those constitutional provisions, it is unquestionably void; though, I

admit, that as the authority to declare it void is of a delicate and

awful nature, the Court will never resort to that authority, but in a

clear and urgent case." And between these two formulations of the

doctrine, the membership of the Supreme Court had given it their

sanction first individually, then as a body. In Hayburn's Case,[261] the

Justices while on circuit court duty refused to administer the Invalid

Pensions Act,[262] which authorized the circuit courts to dispose of

pension applications subject to review by the Secretary of War and

Congress on the ground that the federal courts could be assigned only

those functions such as are properly judicial and to be performed in a

judicial manner. In Hylton _v._ United States,[263] a made case in which

Congress appropriated money to pay counsel on both sides of the

argument, the Court passed on the constitutionality of the carriage tax

and sustained it as valid, and in so doing tacitly assumed that it had

the power to review Congressional acts.

MARBURY _v._ MADISON

All the above developments were, however, only preparatory. Judicial

review of acts of Congress was made Constitutional Law, and thereby the

cornerstone of American constitutionalism, by the decision of the

Supreme Court, speaking through Chief Justice Marshall in the famous

case of Marbury _v._ Madison[264] decided in February, 1803. The facts

of the case briefly stated are that Marbury had been appointed a justice

of the peace in the District of Columbia by John Adams almost at the

close of his administration, and John Marshall who was serving

simultaneously as Secretary of State failed to deliver to Marbury his

commission which had been signed before the new administration had

begun. One of the first acts of Jefferson was his instruction to

Secretary of State Madison to withhold commissions to office which

remained undelivered. Thereupon Marbury sought to compel Madison to

deliver the commission by seeking a writ of mandamus in the Supreme

Court in the exercise of its original jurisdiction and in pursuance of

section 13 of the Judiciary Act of 1789[265] which prescribed the

original jurisdiction of the Court and authorized it to issue writs of

mandamus "in cases warranted by the principles and usages of law, to any

courts appointed, or persons holding office, under the authority of the

United States."

Marshall's Argument

In the portion of his opinion dealing with judicial review Marshall

began his argument with the assumption that "the people have an original

right to establish, for their future government, such principles as, in

their opinion, shall most conduce to their own happiness * * *" and,

once established, these principles are fundamental. Second, the

Government of the United States is limited in its powers by a written

Constitution. The Constitution either "controls any legislative act

repugnant to it; or, * * * the legislature may alter the Constitution by

an ordinary act." But the Constitution is paramount law and written as

such. "It is emphatically the province and duty of the judicial

department to say what the law is. * * * If two laws conflict with each

other, the courts must decide on the operation of each. * * * If, then,

the courts are to regard the Constitution, and the Constitution is

superior to any ordinary act of the legislature, the Constitution, and

not such ordinary act, must govern the case to which they both apply."

To declare otherwise, the Chief Justice concluded, would be subversive

of the very foundation of all written constitutions, would force the

judges to close their eyes to the Constitution, and would make the

judicial oath "a solemn mockery."[266] The Court must therefore look

into some portions of the Constitution, and if they can open it at all,

what part of it are they forbidden to read or obey? In conclusion the

Chief Justice declared that the Constitution is mentioned first in the

supremacy clause and that "the particular phraseology of the

Constitution * * * confirms and strengthens the principle, supposed to

be essential to all written constitutions, that a law repugnant to the

Constitution is void; and that courts, as well as other departments, [of

government] are bound by that instrument."[267]

Importance of Marbury _v._ Madison

The decision in Marbury _v._ Madison has never been disturbed, although

it has often been criticized. Nor was its contemporary effect confined

to the national field. From that time on judicial review by State courts

of local legislation in relation to the local constitutions made rapid

progress and was securely established in all States by 1850 under the

influence not only of Marbury _v._ Madison, but also of early principles

of judicial review established in the circuit courts of the United

States.[268]

LIMITS TO THE EXERCISE OF JUDICIAL REVIEW

Because judicial review is an outgrowth of the fiction that courts only

declare what the law is in specific cases,[269] and are without will or

discretion,[270] its exercise is surrounded by the inherent limitations

of the judicial process and notably the necessity of a case or

controversy between adverse litigants with a standing in court to

present the issue of unconstitutionality in which they are directly

interested. The requisites to a case or controversy have been treated

more extensively above, but it may be noted that the Supreme Court has

repeatedly emphasized the necessity of "an honest and actual

antagonistic assertion of rights by one individual against

another,"[271] and its lack of power to supervise legislative functions

in friendly proceedings, moot cases, or cases which present abstract

issues.[272]

The Doctrine of "Strict Necessity"

But even when a case involving a constitutional issue is presented, the

Court has repeatedly stated that it will decide constitutional questions

only if strict necessity requires it to do so. Hence constitutional

issues will not be decided in broader terms than are required by the

precise state of facts to which the ruling is to be applied; nor if the

record presents some other ground upon which to decide the case; nor at

the instance of one who has availed himself of the benefit of a statute

or who fails to show he is injured by its operation; nor if a

construction of the statute is fairly possible by which the question may

be fairly avoided.[273] Speaking of the policy of avoiding the decision

of constitutional issues except when necessary Justice Rutledge,

speaking for the Court, declared in 1947: "The policy's ultimate

foundations, some if not all of which also sustain the jurisdictional

limitation, lie in all that goes to make up the unique place and

character, in our scheme, of judicial review of governmental action for

constitutionality. They are found in the delicacy of that function,

particularly in view of possible consequences for others stemming also

from constitutional roots; the comparative finality of those

consequences; the consideration due to the judgment of other

repositories of constitutional power concerning the scope of their

authority; the necessity, if government is to function constitutionally,

for each to keep within its power, including the courts; the inherent

limitations of the judicial process, arising especially from its largely

negative character and limited resources of enforcement; withal in the

paramount importance of constitutional adjudication in our system."[274]

The Doctrine of Political Questions

A third limitation to the exercise of judicial review is the rule,

partly inherent in the judicial process, but also partly a precautionary

rule adopted by the Court in order to avoid clashes with the "political

branches," is that the federal courts will not decide "political

questions."[275]

The "Reasonable Doubt" Doctrine

A fourth rule, of a precautionary nature, is that no act of legislation

will be declared void except in a very clear case, or unless the act is

unconstitutional beyond all reasonable doubt.[276] Sometimes this rule

is expressed in another way, in the formula that an act of Congress or a

State legislature is presumed to be constitutional until proved

otherwise "beyond all reasonable doubt."[277] In operation this rule is

subject to two limitations which seriously impair its efficacy. The

first is that the doubts which are effective are the doubts of the

majority only. If five Justices of learning and attachment to the

Constitution are convinced that the statute is invalid and four others

of equal learning and attachment to the Constitution are convinced that

it is valid or are uncertain that it is invalid, the convictions of the

five prevail over the convictions or doubts of the four, and vice versa.

Second, the Court has made exceptions to this rule in certain categories

of cases. At one time statutes interfering with freedom of contract were

presumed to be unconstitutional until proved valid,[278] and more

recently presumptions of invalidity have appeared to prevail against

statutes alleged to interfere with freedom of expression and of

religious worship, which have been said to occupy a preferred position

in the Constitution.[279]

Exclusion of Extra-Constitutional Tests

A fifth maxim of constitutional interpretation runs to the effect that

the Courts are concerned only with the constitutionality of legislation

and not with its motives, policy or wisdom, or with its concurrence with

natural justice, fundamental principles of government, or spirit of the

Constitution.[280] In various forms this maxim has been repeated to such

an extent that it has become trite and has increasingly come to be

incorporated in constitutional cases as a reason for fortifying a

finding of unconstitutionality. Through absorption of natural rights

doctrines into the text of the Constitution, the Court was enabled to

reject natural law and still to partake of its fruits, and the same is

true of the _laissez faire_ principles incorporated in judicial

decisions from about 1890 to 1937. Such protective coloration is

transparent in such cases as Lochner _v._ New York[281] and United

States _v._ Butler.[282]

Disallowance by Statutory Interpretation

A sixth principle of constitutional interpretation designed by the

courts to discourage invalidation of statutes is that if at all possible

the courts will construe the statute so as to bring it within the law of

the Constitution.[283] At times this has meant that a statute was

construed so strictly in order to avoid constitutional difficulties that

its efficacy was impaired if not lost.[284] A seventh principle closely

related to the preceding one is that in cases involving statutes,

portions of which are valid and other portions invalid, the courts will

separate the valid from the invalid and throw out only the latter unless

such portions are inextricably connected.[285] Sometimes statutes

expressly provide for the separability of provisions, but it remains for

the courts in the last resort to determine whether the provisions are

separable.[286]

_Stare Decisis_ in Constitutional Law

An eighth limitation on the power of the federal courts to invalidate

legislation springs from the principle of _stare decisis_, a limitation

which has been progressively weakened since the Court proceeded to

correct "a century of error" in Pollock _v._ Farmers' Loan & Trust

Co.[287] Because of the difficulty of amending the Constitution the

Court has long taken the position that it will reverse its previous

decisions on constitutional issues when convinced they are grounded on

error more quickly than in other types of cases in which earlier

precedents are not absolutely binding.[288] The "constitutional

revolution" of 1937 produced numerous reversals of earlier precedents as

other sections of this study disclose, and the process continues. In

Smith _v._ Allwright,[289] which reversed Grovey _v._ Townsend,[290]

Justice Reed cited fourteen cases decided between March 27, 1937, and

June 14, 1943, in which one or more earlier decisions of constitutional

questions were overturned. Although the general effect of the numerous

reversals of precedent between 1937 and 1950 was to bring judicial

interpretation more generally into accord with the formal text of the

Constitution, and to dispose of a considerable amount of constitutional

chaff, Justice Roberts was moved to say in the Allwright case that

frequent reversals of earlier decisions tended to bring adjudications of

the Supreme Court "into the same class as a restricted railroad ticket,

good for this day and train only."[291] A ninth limitation which has

nothing to do with statutory or constitutional construction as such and

which is altogether precautionary is that the Court will declare no

legislative act void unless a majority of its full membership so

concurs.[292]

The cumulative effect of these limitations is difficult to measure. The

limitation imposed by the case concept definitely has the effect of

postponing judicial nullification, but beyond this the most that can be

said is that constitutional issues affecting important issues can

ordinarily be presented in a case and so will sooner or later reach the

Court. The limitations of the presumptions of statutory validity, lack

of concern with the wisdom of the legislation, alternative construction,

separability of provisions and the like depend for their effectiveness

upon the consciousness of the individual judge of the judicial

proprieties and have been equally endorsed by those judges most

frequently addressing themselves to the task of finding legislation

invalid. The limitation imposed by the concept of political questions

does not limit in any significant way the power of the federal courts to

review legislation, but does remove from judicial scrutiny vast areas of

executive action. In general, therefore, the extent to and manner in

which the courts will exercise their power to review legislation is a

matter of judicial discretion.

ALLEGATIONS OF FEDERAL QUESTION

The question of jurisdiction of cases involving federal questions is

determined by the allegations made by the plaintiff and not upon the

facts as they may emerge or by a decision of the merits.[293]

Plaintiffs seeking to docket such cases in the federal courts must set

forth a substantial claim under the Constitution, laws or treaties of

the United States.[294] Nor does jurisdiction arise simply because an

averment of a federal right is made, "if it plainly appears that such

averment is not real and substantial, but is without color of

merit."[295] The federal question averred may be insubstantial because

obviously without merit, or because its unsoundness so clearly results

from previous decisions of the Supreme Court as to foreclose the issue

and leaves no room for the inference that the questions sought to be

raised can be subjects of controversy.[296] In Gully _v._ First National

Bank[297] the Court reviewed earlier precedents and endeavored to

restate the rules for determining when a case arises. First there must

be a right or immunity created by the Constitution, laws, or treaties of

the United States which must be such that it will be supported if the

Constitution, laws, or treaties are given one construction, or defeated

if given another. Second, a genuine and present controversy as

distinguished from a possible or conjectural one must exist with

reference to the federal right. Third, the controversy must be disclosed

upon the face of the complaint unaided by the answer.[298]

CORPORATIONS CHARTERED BY CONGRESS

The earlier hospitality of the federal courts to cases involving federal

questions is also manifested in suits by corporations chartered by

Congress. Although in Bank of United States _v._ Deveaux[299] the Court

held that the first Bank of the United States could not sue in the

federal courts merely because it was incorporated by an act of Congress,

the act incorporating the second bank authorized such suits and this

authorization was not only sustained in Osborn _v._ Bank of United

States,[300] but an act of incorporation was declared to be a law of the

United States for purposes of jurisdiction in cases involving federal

questions. Consequently, the door was opened to other federally

chartered corporations to go into the federal courts after the act of

1875 vested original jurisdiction generally in the lower courts of such

questions. Corporations, chartered by Congress, particularly railroads,

quickly availed themselves of this opportunity, and succeeded in the

Pacific Railroad Removal Cases[301] in removing suits from the State to

the federal courts in cases involving no federal question solely on the

basis of federal incorporation. The result of this and similar cases was

Congressional legislation depriving national banks of the right to sue

in the federal courts solely on the basis of federal incorporation in

1882,[302] depriving railroads holding federal charters of this right in

1915,[303] and finally in 1925 removing from federal jurisdiction

involving federal questions all suits brought by federally chartered

corporations, solely on the basis of federal incorporation, except where

the United States holds half of the stock.[304]

REMOVAL FROM STATE COURTS OF SUITS AGAINST FEDERAL OFFICIALS

Of greater significance and of immediate importance to the maintenance

of national supremacy are those cases involving State prosecution of

federal officials for acts committed under the color of federal

authority. As early as 1815 Congress provided temporarily for the

removal of prosecutions against customs officials for acts done or

omitted as an officer or under color of an act of Congress, except for

offenses involving corporal punishment.[305] In 1833, in partial answer

to South Carolina's Nullification Proclamation, Congress enacted the

so-called Force Act providing for removal from State courts of all

prosecutions against any officer of the United States or under color

thereof.[306] As a part of the Civil War legislation and limited to the

war period, an act in 1863 provided for removal from State courts of

cases brought against federal officials for acts committed during the

war and justified under the authority of Congress and the

President.[307] The act of 1833, with amendments, has been kept in

force. Since 1948 the United States Code has provided for the removal to

a federal district court of civil actions or criminal prosecutions in

State courts against "any officer of the United States or any agency

thereof, or person acting under him, for any act under color of such

office or on account of any right, title or authority claimed under any

Act of Congress for the apprehension or punishment of criminals or the

collection of the revenue."[308]

Tennessee _v._ Davis

The validity of the act of 1833 as it was carried over into the Revised

Statutes, Sec. 643, was contested in Tennessee _v._ Davis,[309] which

involved the attempt of a State to prosecute a deputy collector of

internal revenue who had killed a man while seeking to seize an illicit

distilling apparatus. In an opinion in the tradition of Martin _v._

Hunter's Lessee[310] and Cohens _v._ Virginia,[311] Justice Strong

emphasized the power of the National Government to protect itself in the

exercise of its constitutional powers, the inability of a State to

exclude it from the exercise of any authority conferred by the

Constitution, and the comprehensive nature of the term "cases in law and

equity arising under the Constitution, the laws of the United States,

and treaties * * *" which was held to embrace criminal prosecutions as

well as civil actions. Then speaking of a case involving federal

questions he said: "It is not merely one where a party comes into court

to demand something conferred upon him by the Constitution or by a law

or treaty. A case consists of the right of one party as well as the

other, and may truly be said to arise under the Constitution or a law or

a treaty of the United States whenever its correct decision depends upon

the construction of either. Cases arising under the laws of the United

States are such as grow out of the legislation of Congress, whether they

constitute the right or privilege, or claim or protection, or defense of

the party, in whole or in part, by whom they are asserted."[312]

SUPREME COURT REVIEW OF STATE COURT DECISIONS

In addition to the constitutional issues presented earlier by Sec. 25 of

the act of 1789, which was superseded in 1934 when the "Writ of error"

was replaced by "Appeal," issues have continued to arise concerning its

application which go directly to the nature and extent of the Supreme

Court's appellate jurisdiction. These have to do with such matters as

the existence of a federal question, exhaustion of remedies in State

courts, and review of findings of fact by State courts. Whether a

federal question has been adequately presented to and decided by a State

court has been held to be in itself a federal question, to be decided by

the Supreme Court on appeal.[313] Likewise a contention that a decision

of a State court disregarded decrees of a United States Court has been

held to bring a case within the Court's jurisdiction;[314] also a

decision by a State court which was adverse to an asserted federal right

although, as the record of the case showed, it might have been based

upon an independent and adequate nonfederal ground.[315] This latter

ruling, however, was qualified during the same term of Court in a case

which held that it is essential to the jurisdiction of the Supreme

Court, in reviewing a decision of a State court that it must appear

affirmatively from the record, not only that a federal question was

presented for determination, but that its decision was necessary to the

determination of the cause; that the federal question was actually

decided, or that the judgment could not have been given without deciding

it.[316]

These rules all flow from the broader principle that if the laws and

Constitution of the United States are to be observed, the Supreme Court

cannot accept as final the decision of a State court on matters alleged

to give rise to an asserted federal right.[317] Consequently, the

Supreme Court will review the findings of fact by a State court where a

federal right has been denied by a finding shown by the record to be

without evidence to support it, and where a conclusion of law as to a

federal right and findings of facts are so intermingled as to make it

necessary to analyze the facts in order to pass upon the federal

question.[318] It should be noted, too, that barring exceptional

circumstances such as those in Gilchrist _v._ Interborough Rapid Transit

Co.,[319] which involved intricate contracts between the City of New

York and the company, the meaning of which had not been determined by

the State courts, or explicit statutory provisions as in 28 U.S.C.A.

Sec. 1331-1332, 1345, 1359, resort to a federal court may precede the

exhaustion of remedies of State courts.[320]

Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the

Supreme Court came in the Judiciary Act of 1789, which conferred on the

federal district courts jurisdiction of suits to which a consul might be

a party. This legislative interpretation was sustained in 1793 in a

circuit court case in which the judges held that Congress might vest

concurrent jurisdiction involving consuls in the inferior courts and

sustained an indictment against a consul.[321] Many years later, in

1884, the Supreme Court held that consuls could be sued in the federal

courts,[322] and in another case in the same year declared sweepingly

that Congress could grant concurrent jurisdiction to the inferior courts

in cases where the Supreme Court has been invested with original

jurisdiction.[323] Nor does the grant of original jurisdiction to the

Supreme Court in cases affecting ambassadors and consuls of itself

preclude suits in State courts against consular officials. The leading

case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian

vice-consul contested an Ohio judgment against him for divorce and

alimony. Justice Holmes, speaking for the Court, said: "The words quoted

from the Constitution do not of themselves and without more exclude the

jurisdiction of the State. * * * It has been understood that, 'the whole

subject of the domestic relations of husband and wife, parent and child,

belongs to the laws of the States and not to the laws of the United

States.' * * * In the absence of any prohibition in the Constitution or

laws of the United States it is for the State to decide how far it will

go."

WHEN "AMBASSADORS" ETC., ARE "AFFECTED"

A number of incidental questions arise in connection with the phrase

"affecting ambassadors and consuls." Does the ambassador or consul to be

affected have to be a party in interest, or is a mere indirect interest

in the outcome of the proceeding sufficient? In United States _v._

Ortega,[325] the Court ruled that a prosecution of a person for

violating international law and the laws of the United States by

offering violence to the person of a foreign minister was not a suit

"affecting" the minister, but a public prosecution for vindication of

the laws of nations and the United States. Another question concerns

the official status of a person claiming to be an ambassador, etc. In Ex

parte Baiz,[326] the Court refused to review the decision of the

Executive with respect to the public character of a person claiming to

be a public minister and laid down the rule that it has the right to

accept a certificate from the Department of State on such a question. A

third question was whether the clause included ambassadors and consuls

accredited by the United States to foreign governments. The Court held

that it includes only persons accredited to the United States by foreign

governments.[327] However, matters of especial delicacy such as suits

against ambassadors and public ministers or their servants, where the

law of nations permits such suits, and in all controversies of a civil

nature to which a State is a party,[328] Congress has made the original

jurisdiction of the Supreme Court exclusive of that of other courts. By

its compliance with the Congressional distribution of exclusive and

concurrent original jurisdiction, the Court has tacitly sanctioned the

power of Congress to make such jurisdiction exclusive or concurrent as

it may choose. Likewise, as in the Popovici case, it has implied that

Congress, if it chose, could make the court's jurisdiction of consular

officials exclusive of State Courts.

Cases of Admiralty and Maritime Jurisdiction

ORIGIN AND CHARACTERISTICS

The admiralty and maritime jurisdiction of the federal courts had its

origin in the jurisdiction vested in the courts of the Admiral of the

English Navy. Prior to independence, vice-admiralty courts were created

in the Colonies by commissions from the English High Court of Admiralty.

After independence, the States established admiralty courts, from which

at a later date appeals could be taken to a court of appeals set up by

Congress under the Articles of Confederation.[329] Since one of the

objectives of the Philadelphia Convention was the promotion of commerce

and the removal of obstacles to it, it was only logical that the

Constitution should deprive the States of all admiralty jurisdiction and

vest it exclusively in the federal courts.

CONGRESSIONAL INTERPRETATION OF THE ADMIRALTY CLAUSE

The Constitution uses the terms "admiralty and maritime jurisdiction"

without defining them. Though closely related the words are not

synonyms. In England the word "maritime" referred to the cases arising

upon the high seas, whereas "admiralty" meant primarily cases of a

local nature involving police regulations of shipping, harbors, fishing,

and the like. A long struggle between the admiralty and common law

courts had, however, in the course of time resulted in a considerable

curtailment of English admiralty jurisdiction. For this and other

reasons, a much broader conception of admiralty and maritime

jurisdiction existed in the United States at the time of the framing of

the Constitution than in the Mother Country.[330] At the very beginning

of government under the Constitution, Congress conferred on the federal

district courts exclusive original cognizance "of all civil causes of

admiralty and maritime jurisdiction, including all seizures under laws

of impost, navigation or trade of the United States, where the seizures

are made, on waters which are navigable from the sea by vessels of ten

or more tons burthen, within their respective districts, as well as upon

the high seas; saving to suitors, in all cases, the right of a common

law remedy, where the common law is competent to give it; * * *"[331]

This broad legislative interpretation of admiralty and maritime

jurisdiction soon won the approval of the federal circuit courts, which

ruled that the extent of admiralty and maritime jurisdiction was not to

be determined by English law but by the principles of maritime law "as

respected by maritime courts of all nations and adopted by most, if not

by all, of them on the continent of Europe."[332]

JUDICIAL APPROVAL OF CONGRESSIONAL INTERPRETATION

Although a number of Supreme Court decisions had earlier sustained the

broader admiralty jurisdiction on specific issues,[333] it was not until

1848 that the Court ruled squarely in its favor, which it did by

declaring that, "whatever may have been the doubt, originally, as to the

true construction of the grant, whether it had reference to the

jurisdiction in England, or to the more enlarged one that existed in

other maritime countries, the question has become settled by legislative

and judicial interpretation, which ought not now to be disturbed."[334]

The Court thereupon proceeded to hold that admiralty had jurisdiction

_in personam_ as well as _in rem_, over controversies arising out of

contracts of affreightment between New York and Providence.

TWO TYPES OF CASES

Admiralty and maritime jurisdiction comprises two types of cases: (1)

those involving acts committed on the high seas or other navigable

waters; and (2) those involving contracts and transactions connected

with shipping employed on the seas or navigable waters. In the first

category, which includes prize cases, and torts, injuries, and crimes

committed on the high seas, jurisdiction is determined by the locality

of the act; while in the second category subject matter is the primary

determinative factor.[335] Specifically, contract cases include suits by

seamen for wages,[336] cases arising out of marine insurance

policies,[337] actions for towage[338] or pilotage[339] charges, actions

on bottomry or respondentia bonds,[340] actions for repairs on a vessel

already used in navigation,[341] contracts of affreightment,[342]

compensation for temporary wharfage,[343] agreements of consortship

between the masters of two vessels engaged in wrecking,[344] and surveys

of damaged vessels.[345] In the words of the Court in Ex parte

Easton,[346] admiralty jurisdiction "extends to all contracts, claims

and services essentially maritime."

MARITIME TORTS

Jurisdiction of maritime torts depends exclusively upon the commission

of the wrongful act upon navigable waters[347] regardless of the voyage

and the destination of the vessel.[348] By statutory elaboration, as

well as judicial decision, maritime torts include injuries to

persons,[349] damages to property arising out of collisions or other

negligent acts,[350] and violent dispossession of property.[351] But

until Congress makes some regulation touching the liability of parties

for marine torts resulting in the death of the persons injured, a State

statute providing "that when the death of one is caused by the wrongful

act or omission of another, the personal representatives of the former

may maintain an action therefor against the latter, if the former might

have maintained an action, had he lived, against the latter for an

injury for the same act or omission," applies, and, as thus applied, it

constitutes no encroachment upon the commerce power of Congress.[352]

PRIZE CASES, FORFEITURES, ETC.

From the earliest days of the Republic, the federal courts sitting in

admiralty have been held to have exclusive jurisdiction of prize

cases.[353] Also, in contrast to other phases of admiralty jurisdiction

prize law as applied by the British courts continued to provide the

basis of American law so far as practicable,[354] and so far as it was

not modified by subsequent legislation, treaties, or executive

proclamations. Finally, admiralty and maritime jurisdiction comprises

the seizure and forfeiture of vessels engaged in activities in violation

of the laws of nations or municipal law, such as illicit trade,[355]

infraction of revenue laws,[356] and the like.[357]

PROCEEDINGS _IN REM_

Procedure in admiralty jurisdiction differs in few respects from

procedure in actions at law, but the differences that do exist are

significant. Suits in admiralty take the form of a proceeding _in rem_

against the vessel and, with exceptions to be noted, proceedings _in

rem_ concerning navigable waters are confined exclusively to federal

admiralty courts. However, if a common law remedy exists, a plaintiff

may bring an action at law in either a State or federal court of

competent jurisdiction,[358] but in this event the action is a

proceeding _in personam_ against the owner of the vessel. On the other

hand, although the Court has sometimes used language which would confine

proceedings _in rem_ to admiralty courts,[359] yet it has sustained

proceedings _in rem_ in the State courts in actions of forfeiture. Thus

in the case of C.J. Hendry Co. _v._ Moore,[360] the Court held that a

proceeding _in rem_ in a State court against fishing nets in the

navigable waters of California was a common law proceeding within the

meaning of Sec. 9 of the Judiciary Act of 1789, and therefore within the

exception to the grant of admiralty jurisdiction to the federal courts.

At the same time, however, the Court was careful to confine such

proceedings to forfeitures arising out of violations of State law.

ABSENCE OF A JURY

Another procedural difference between actions at law and in admiralty is

the absence of jury trial in civil proceedings in admiralty courts

unless Congress specifically provides for it. Otherwise the judge of an

admiralty court tries issues of fact as well as of law.[361] Indeed, the

absence of a jury in admiralty proceedings appears to have been one of

the reasons why the English government vested a broad admiralty

jurisdiction in the colonial vice-admiralty courts of America, since

they provided a forum where the English authorities could enforce the

Navigation Laws without what Chief Justice Stone called "the obstinate

resistance of American juries."[362]

TERRITORIAL EXTENT OF ADMIRALTY AND MARITIME JURISDICTION

As early as 1821 a federal district court in Kentucky asserted admiralty

jurisdiction over inland waterways to the consternation of certain

interests in Kentucky which succeeded in inducing the Senate to pass a

bill confining admiralty jurisdiction to the ebb and flow of the tide,

only to see it defeated in the House.[363] However, in 1825, in _The

Thomas Jefferson_[364] the Court relieved these tensions by confining

admiralty jurisdiction to the high seas and upon rivers as far as the

ebb and flow of the tide extended in accordance with the English rule.

Twenty-two years later this rule was qualified in Waring _v._

Clarke,[365] when the Court ruled that the admiralty jurisdiction under

the Constitution was not to be limited or interpreted by English rules

of admiralty and extended the jurisdiction of the federal courts to a

collision on the Mississippi River ninety-five miles above New Orleans.

In this ruling the Court moved in the direction of accommodating the

rising commerce on the inland waterways and prepared the way for the

Genesee Chief,[366] which reversed The Thomas Jefferson and sustained

the constitutionality of an act of Congress passed in 1845 giving the

district courts jurisdiction over the Great Lakes and connecting waters,

and so in effect extended the admiralty jurisdiction to all the

navigable waters of the United States.[367] The Genesee Chief therefore

vastly expanded federal power,[368] and marked a trend which was

continued in Ex parte Boyer,[369] where admiralty jurisdiction was

extended to canals, and in The Daniel Ball,[370] where it was extended

to waters wholly within a given State provided they form a connecting

link in interstate commerce. This latter case is also significant for

its definition of navigable waters of the United States as those that

are navigable in fact, and as navigable in fact when so "used, or * * *

susceptible of being used, in their ordinary condition, as highways for

commerce, over which trade and travel are or may be conducted in the

customary modes of trade and travel on water."[371] The doubts left by

the Ball case in its distinction between navigable waters of the United

States and navigable waters of the States were clarified by In re

Garnett,[372] where it was held that the power of Congress to amend the

maritime law was coextensive with that law and not confined "to the

boundaries or class of subjects which limit and characterize the power

to regulate commerce," and that the admiralty jurisdiction extends "to

all public navigable lakes and rivers." In United States _v._

Appalachian Electric Power Co.,[373] the concept of "navigable waters of

the United States" was further expanded to include waterways which by

reasonable improvement can be made navigable for use in interstate

commerce provided there is a balance between cost and need at a time

when the improvement would be useful. Nor is it necessary that the

improvement shall have been undertaken or authorized. Conversely, a

navigable waterway of the United States does not cease to be so because

navigation has ceased, and it may be a navigable waterway for only part

of its course. Although this doctrine was announced as an interpretation

of the commerce clause, the Garnett case and the decision rendered in

Southern S.S. Co. _v._ National Labor Relations Board,[374] to the

effect that admiralty jurisdiction includes all navigable waters within

the country, makes it applicable also to the admiralty and maritime

clause.

ADMIRALTY JURISDICTION VERSUS STATE POWER

The extension of the admiralty and maritime jurisdiction to navigable

waters within a State does not, however, of its own force include

general or political powers of government. Thus in the absence of

legislation by Congress, the States through their courts may punish

offenses upon their navigable waters and upon the sea within one marine

league of the shore. In United States _v._ Bevans[375] the Court denied

the jurisdiction of a federal circuit court to try defendant for a

murder committed in Boston Harbor in the absence of statutory

authorization of trials in federal courts for offenses committed within

the jurisdiction of a State. While admitting that Congress may pass all

laws which are necessary and proper for giving complete effect to

admiralty jurisdiction, Chief Justice Marshall at the same time declared

that "the general jurisdiction over the place, subject to this grant of

power, adheres to the territory, as a portion of sovereignty not yet

given away. The residuary powers of legislation are still in

Massachusetts."[376]

Exclusiveness of the Jurisdiction

Determination of the bounds of admiralty jurisdiction is a judicial

function, and "no State law can enlarge it, nor can an act of Congress

or a rule of court make it broader than the judicial power may

determine to be its true limits."[377] Nor is the jurisdiction

self-executing. It can only be exercised under acts of Congress vesting

it in the federal courts.[378] The admiralty jurisdiction of the federal

courts was made exclusive of State court jurisdiction by the Judiciary

Act of 1789 according to The "Moses Taylor,"[379] which also held that

State laws conferring remedies _in rem_ could only be enforced in the

federal courts. Consequently, the State courts were deprived of

jurisdiction of a great number of cases arising out of maritime

contracts and torts over which they had exercised jurisdiction prior to

1866. However, as before noted, the ninth section of the act of 1789

contained a provision, still in effect, which enables parties to avail

themselves in State courts of such remedies as the common law is

competent to give,[380] but in such cases the rights and obligations

involved are still determined by the maritime law.[381]

Concessions to State Power

Nor does the exclusiveness of federal admiralty jurisdiction preclude

the States from creating rights enforceable in admiralty courts. In The

"Lottawanna,"[382] it was held that federal district courts sitting in

admiralty could enforce liens given for security of a contract even when

created by State laws. Likewise liabilities created by State statutes

for injuries resulting in death have been enforced by proceedings _in

rem_ in federal admiralty courts,[383] and, in the absence of

Congressional legislation, a State may enact laws governing the rights

and obligations of its citizens on the high seas. Under this general

rule a law of Delaware providing for damages for wrongful death was

enforced in an admiralty proceeding against a vessel arising out of a

collision at sea of two vessels owned by Delaware corporations.[384] And

in 1940, in Just _v._ Chambers,[385] the Supreme Court held specifically

applicable in admiralty proceedings the law of Florida whereby a cause

of action for personal injury due to another's negligence survives the

death of the tort-feasor against his estate and against the vessel.

The Jensen Case and Its Sequelae

In the face of these decisions, except the last, the Court,

nevertheless, held in 1917 in Southern Pacific Co. _v._ Jensen[386] that

a New York Workman's Compensation statute was unconstitutional as

applied to employees engaged in maritime work. Proceeding on the

assumption that "Congress has paramount power to fix and determine the

maritime law which shall prevail through the country," and that in the

absence of a controlling statute the general maritime law as accepted by

the federal courts is a part of American national law, Justice

McReynolds proceeded to draw an analogy between the power of the States

to legislate on admiralty and maritime matters and their power to

legislate on matters affecting interstate commerce. Just as the States

may not regulate interstate commerce where the subject is national in

character and requires uniform regulation, so, he argued, they may not

legislate on maritime matters in such fashion as to destroy "the very

uniformity in respect to maritime matters which the Constitution was

designed to establish" or to hamper and impede freedom of navigation

between the States and with foreign countries. Nor could the act be

covered by the saving clause of the act of 1789 governing common law

remedies, since the remedy provided by the compensation statute was

unknown to the common law.[387]

Following the Jensen decision Congress enacted a statute saving to

claimants their rights and remedies under State workmen's compensation

laws.[388] In Knickerbocker Ice Co. _v._ Stewart[389] the same majority

of judges, with Justice McReynolds again their spokesman, invalidated

this statute as an unconstitutional delegation of legislative power to

the States. The holding was based on the premise, stated as follows:

"The Constitution itself adopted and established, as part of the laws of

the United States, approved rules of the general maritime law and

empowered Congress to legislate in respect of them and other matters

within the admiralty and maritime jurisdiction. Moreover, it took from

the States all power, by legislation or judicial decision, to contravene

the essential purposes of, or to work material injury to, characteristic

features of such law or to interfere with its proper harmony and

uniformity in its international and interstate relations."[390] And a

like fate overtook the attempt of Congress in 1922 to protect

longshoremen and other workers under State compensation laws by

excluding masters and crew members of vessels from those who might claim

compensation for maritime injuries.[391] Finally, in 1927 Congress

passed the Longshoremen's and Harbor Workers' Act,[392] which provided

accident compensation for those workers who could not validly be

compensated under State statutes. This time it seems to have succeeded,

the constitutionality of the 1927 statute being apparently taken for

granted.[393]

The net result of the Jensen Case and its progeny has been a series of

cases which hold that in some circumstances the States can apply their

compensation laws to maritime employees and in other circumstances

cannot, if to do so "works material prejudice to the characteristic

features of the general maritime law or interferes with the proper

harmony and uniformity of that law in its international and interstate

relations."[394] But, as Justice Black pointed out in 1942 in Davis _v._

Department of Labor,[395] "when a State could, and when it could not,

grant protection under a compensation act was left as a perplexing

problem, for it was held 'difficult, if not impossible,' to define this

boundary with exactness."[396] Nor, he continued, has the Court been

able "to give any guiding, definite rule to determine the extent of

state power in advance of litigation, and has held that the margins of

state authority must 'be determined in view of surrounding circumstances

as cases arise.'"[397] As to the specific claim involved in the Davis

Case, Justice Black stated further that it was "fair to say that a

number of cases can be cited both in behalf of and in opposition to

recovery here."[398] Concurring in the Davis Case, Justice Frankfurter

referred to the Jensen case as "that ill-starred decision," but agreed

that reversal would not eliminate its resultant complexities and

confusions until Congress attempted another comprehensive solution of

the problem. Until then all the Court could do was "to bring order out

of the remaining judicial chaos as marginal situations" were

presented.[399]

POWER OF CONGRESS TO MODIFY THE MARITIME LAW; THE "LOTTAWANNA"

In view of the chaos created by the Jensen case and its apparent

disharmony with earlier as well as some later decisions the question

arises as to the scope of Congress's power to revise and codify the

maritime law. In the "Lottawanna"[400] Justice Bradley as spokesman of

the Court, while admitting the existence of a general body of maritime

law, asserted that it is operative as law only insofar "as it is adopted

by the laws and usages of that country,"[401] subject to such

modifications and qualifications as may be made. So adopted and

qualified it becomes the law of a particular nation, but not until then.

"That we have a maritime law of our own, operative throughout the United

States, cannot be doubted. The general system of maritime law which was

familiar to the lawyers and statesmen of the country when the

Constitution was adopted, was most certainly intended and referred to

when it was declared in that instrument that the judicial power of the

United States shall extend 'to all cases of admiralty and maritime

jurisdiction.'" Continuing, Justice Bradley stated that "the

Constitution must have referred to a system of law coextensive with and

operating uniformly in, the whole country. It certainly could not have

been the intention to place the rules and limits of maritime law under

the disposal and regulation of the several States, as that would have

defeated the uniformity and consistency at which the Constitution aimed

on all subjects of a commercial character affecting the intercourse of

the States with each other or with foreign states."[402] However, the

framers of the Constitution could not have contemplated that the law

should remain ever the same, especially as Congress "has authority under

the commercial power, if no other, to introduce such changes as are

likely to be needed."[403] Sixteen years later in the Garnett case[404]

Justice Bradley, speaking for a unanimous court, asserted that the power

of Congress to amend the maritime law is coextensive with that law and

not limited by the boundaries of the commerce clause, and that the

maritime law is "subject to such amendments as Congress may see fit to

adopt."[405] Likewise, Justice McReynolds in Southern Pacific Co. _v._

Jensen[406] emphasizes Congress' "paramount power to fix and determine

the maritime law which shall prevail throughout the country," albeit in

the absence of a controlling statute the general maritime law prevails;

and the language of Knickerbocker Ice Co. _v._ Stewart[407] is to like

effect, as is also that of Swanson _v._ Marra Bros.,[408] decided in

1946.

The law administered by the federal courts sitting in admiralty is

therefore an amalgam of the general maritime law insofar as it is

acceptable to the courts, modifications of that law by Congressional

enactments, the common law of torts and contracts as modified by State

or National legislation, and international prize law. This body of law,

however, is subject at all times to the paramount authority of Congress

to change it in pursuance of its powers under the commerce clause, the

admiralty and maritime clause, and the necessary and proper clause. That

portion of the Jensen opinion emphasizing Congressional power in this

respect has never been in issue in either the opinions of the dissenters

in that case or in subsequent opinions critical of it, which in effect

invite Congress to exercise its power to modify the maritime law.[409]

Cases to Which the United States Is a Party: Right of the United States

To Sue

As Justice Story pointed out in his Commentaries, "It would be a perfect

novelty in the history of national jurisprudence, as well as of public

law, that a sovereign had no authority to sue in his own courts."[410]

As early as 1818 the Supreme Court ruled that the United States could

sue in its own name in all cases of contract without Congressional

authorization of such suits.[411] Later this rule was extended to other

types of actions. In the absence of statutory provisions to the contrary

such suits are initiated by the Attorney General in the name of the

United States.[412] As in other judicial proceedings, the United States,

like any other party plaintiff, must have an interest in the subject

matter and a legal right to the remedy sought.[413] By the Judiciary Act

of 1789 and subsequent amendments Congress has vested jurisdiction in

the federal district courts to hear all suits of a civil nature at law

or in equity, brought by the United States as a party plaintiff.[414]

SUITS AGAINST STATES

Controversies to which the United States is a party include suits

brought against States as party defendants. The first such suit occurred

in United States _v._ North Carolina[415] which was an action by the

United States to recover upon bonds issued by North Carolina. Although

no question of jurisdiction was raised, in deciding the case on its

merits in favor of the State, the Court tacitly assumed that it had

jurisdiction of such cases. The issue of jurisdiction was directly

raised by Texas a few years later in a bill in equity brought by the

United States to determine the boundary between Texas and the Territory

of Oklahoma, and the Court sustained its jurisdiction over strong

arguments by Texas to the effect that it could not be sued by the United

States without its consent and that the Supreme Court's original

jurisdiction did not extend to cases to which the United States is a

party.[416] Stressing the inclusion within the judicial power of cases

to which the United States and a State are parties, Justice Harlan

pointed out that the Constitution made no exception of suits brought by

the United States. In effect, therefore, consent to be sued by the

United States "was given by Texas when admitted to the Union upon an

equal footing in all respects with the other States."[417]

Suits brought by the United States against States have, however, been

infrequent. All of them have arisen since 1889, and they have become

somewhat more common since 1926. That year the Supreme Court decided a

dispute between the United States and Minnesota over land patents issued

to the State by the United States in breach of its trust obligations to

the Indians.[418] In United States _v._ West Virginia,[419] the Court

refused to take jurisdiction of a suit in equity brought by the United

States to determine the navigability of the New and Kanawha Rivers on

the ground that the jurisdiction in such suits is limited to cases and

controversies and does not extend to the adjudication of mere

differences of opinion between the officials of the two governments. A

few years earlier, however, it had taken jurisdiction of a suit by the

United States against Utah to quiet title to land forming the beds of

certain sections of the Colorado River and its tributaries within the

States.[420] Similarly, it took jurisdiction of a suit brought by the

United States against California to determine the ownership of and

paramount rights over the submerged land and the oil and gas thereunder

off the coast of California between the low-water mark and the

three-mile limit.[421] Like suits were decided against Louisiana and

Texas in 1950.[422]

IMMUNITY OF THE UNITED STATES FROM SUIT

In pursuance of the general rule that a sovereign cannot be sued in his

own courts, it follows that the judicial power does not extend to suits

against the United States unless Congress by general or special

enactment consents to suits against the Government. This rule first

emanated in embryo form in an _obiter dictum_ by Chief Justice Jay in

Chisholm _v._ Georgia, where he indicated that a suit would not lie

against the United States because "there is no power which the courts

can call to their aid."[423] In Cohens _v._ Virginia,[424] also by way

of dictum, Chief Justice Marshall asserted, "the universally received

opinion is, that no suit can be commenced or prosecuted against the

United States." The issue was more directly in question in United States

_v._ Clarke[425] where Chief Justice Marshall stated that as the United

States is "not suable of common right, the party who institutes such

suit must bring his case within the authority of some act of Congress,

or the court cannot exercise jurisdiction over it." He thereupon ruled

that the act of May 26, 1830, for the final settlement of land claims in

Florida condoned the suit. The doctrine of the exemption of the United

States from suit was repeated in various subsequent cases, without

discussion or examination.[426] Indeed, it was not until United States

_v._ Lee[427] that the Court examined the rule and the reasons for it,

and limited its application accordingly.

Waiver of Immunity by Congress

Since suits against the United States can be maintained only by

permission, it follows that they can be brought only in the manner

prescribed by Congress and subject to the restrictions imposed.[428]

Only Congress can take the necessary steps to waive the immunity of the

United States from liability for claims, and hence officers of the

United States are powerless by their actions either to waive such

immunity or to confer jurisdiction on a federal court.[429] Even when

authorized, suits can be brought only in designated courts.[430] These

rules apply equally to suits by States against the United States.[431]

Although an officer acting as a public instrumentality is liable for his

own torts, Congress may grant or withhold immunity from suit on behalf

of government corporations.[432]

United States _v._ Lee

United States _v._ Lee, a five-to-four decision, qualified earlier

holdings to the effect that where a judgment affected the property of

the United States the suit was in effect against the United States, by

ruling that title to the Arlington estate of the Lee family, then being

used as a national cemetery, was not legally vested in the United States

but was being held illegally by army officers under an unlawful order of

the President. In its examination of the sources and application of the

rule of sovereign immunity, the Court concluded that the rule "if not

absolutely limited to cases in which the United States are made

defendants by name, is not permitted to interfere with the judicial

enforcement of the rights of plaintiffs when the United States is not a

defendant or a necessary party to the suit."[433] Except, nevertheless,

for an occasional case like Kansas _v._ United States,[434] which held

that a State cannot sue the United States, most of the cases involving

sovereign immunity from suit since 1883 have been cases against

officers, agencies, or corporations of the United States where the

United States has not been named as a party defendant. Thus, it has been

held that a suit against the Secretary of the Treasury to review his

decision on the rate of duty to be exacted on imported sugar would

disturb the whole revenue system of the Government and would in effect

be a suit against the United States.[435] Even more significant is

Stanley _v._ Schwalby,[436] which resembles without paralleling United

States _v._ Lee, where it was held that an action of trespass against an

army officer to try title in a parcel of land occupied by the United

States as a military reservation was a suit against the United States

because a judgment in favor of the plaintiffs would have been a judgment

against the United States.

Difficulties Created by the Lee Case

Subsequent cases repeat and reaffirm the rule of United States _v._ Lee

that where the right to possession or enjoyment of property under

general law is in issue, the fact that defendants claim the property as

officers or agents of the United States, does not make the action one

against the United States until it is determined that they were acting

within the scope of their lawful authority.[437] Contrariwise, the rule

that a suit in which the judgment would affect the United States or its

property is a suit against the United States has also been repeatedly

approved and reaffirmed.[438] But, as the Court has pointed out, it is

not "an easy matter to reconcile all of the decisions of the court in

this class of cases,"[439] and, as Justice Frankfurter quite justifiably

stated in a dissent, "the subject is not free from casuistry."[440]

Justice Douglas' characterization of Land _v._ Dollar, "this is the type

of case where the question of _jurisdiction_ is dependent on decision of

the _merits_,"[441] is frequently applicable.

Official Immunity Today

The recent case of Larson _v._ Domestic and Foreign Corp.,[442]

illuminates these obscurities somewhat. Here a private company sought to

enjoin the Administrator of the War Assets in his official capacity from

selling surplus coal to others than the plaintiff who had originally

bought the coal, only to have the sale cancelled by the Administrator

because of the company's failure to make an advance payment. Chief

Justice Vinson and a majority of the Court looked upon the suit as one

brought against the Administrator in his official capacity, acting under

a valid statute, and therefore a suit against the United States. It held

that although an officer in such a situation is not immune from suits

for his own torts, yet his official action, though tortious cannot be

enjoined or diverted, since it is also the action of the sovereign.[443]

The Court then proceeded to repeat the rule that "the action of an

officer of the sovereign (be it holding, taking, or otherwise legally

affecting the plaintiff's property) can be regarded as so individual

only if it is not within the officer's statutory powers, or, if within

those powers, only if the powers or their exercise in the particular

case, are constitutionally void."[444] The Court rejected the contention

that the doctrine of sovereign immunity should be relaxed as

inapplicable to suits for specific relief as distinguished from damage

suits, saying: "The Government, as representative of the community as a

whole, cannot be stopped in its tracks by any plaintiff who presents a

disputed question of property or contract right."[445]

CLASSIFICATION OF SUITS AGAINST OFFICERS

Suits against officers involving the doctrine of sovereign immunity have

been classified by Justice Frankfurter in a dissenting opinion into four

general groups. First, there are those cases in which the plaintiff

seeks an interest in property which belongs to the Government, or calls

"for an assertion of what is unquestionably official authority."[446]

Such suits, of course, cannot be maintained.[447] Second, cases in which

action adverse to the interests of a plaintiff is taken under an

unconstitutional statute or one alleged to be so. In general these suits

are maintainable.[448] Third, cases involving injury to a plaintiff

because the official has exceeded his statutory authority. In general

these suits are also maintainable.[449] Fourth, cases in which an

officer seeks immunity behind statutory authority or some other

sovereign command for the commission of a common law tort.[450] This

category of cases presents the greatest difficulties since these suits

can as readily be classified as falling into the first group if the

action directly or indirectly is one for specific performance or if the

judgment would affect the United States.

SUITS AGAINST GOVERNMENT CORPORATIONS

The multiplication of government corporations during periods of war and

depression has provided one motivation for limiting the doctrine of

sovereign immunity. In Keifer & Keifer _v._ Reconstruction Finance Corp.

and Regional Agricultural Credit Corp.,[451] the Court held that the

Government does not become a conduit of its immunity in suits against

its agents or instrumentalities merely because they do its work. Nor

does the creation of a government corporation confer upon it legal

immunity. Whether Congress endows a public corporation with governmental

immunity in a specific instance, is a matter of ascertaining the

Congressional will. Moreover, it has been held that waivers of

governmental immunity in the case of federal instrumentalities and

corporations should be construed liberally.[452] On the other hand,

Indian nations are exempt from suit without further Congressional

authorization; it is as though their former immunity as sovereigns

passed to the United States for their benefit, as did their tribal

properties.[453]

Suits Between Two or More States

The extension of the federal judicial power to controversies between

States and the vesting of original jurisdiction in the Supreme Court of

suits to which a State is a party had its origin in experience. Prior to

independence disputes between colonies claiming charter rights to

territory were settled by the Privy Council. Under the Articles of

Confederation Congress was made "the last resort on appeal" to resolve

"all disputes and differences * * * between two or more States

concerning boundary, jurisdiction, or any other cause whatever," and to

constitute what in effect were _ad hoc_ arbitral courts for determining

such disputes and rendering a final judgment therein. When the

Philadelphia Convention met in 1787, serious disputes over boundaries,

lands, and river rights involved ten States.[454] It is hardly

surprising, therefore, that during its first sixty years the only State

disputes coming to the Supreme Court were boundary disputes[455] or that

such disputes constitute the largest single number of suits between

States. Since 1900, however, as the result of the increasing mobility of

population and wealth and the effects of technology and

industrialization other types of cases have occurred with increasing

frequency.

BOUNDARY DISPUTES; THE LAW APPLIED

Of the earlier examples of suits between States, that between New Jersey

and New York is significant for the application of the rule laid down

earlier in Chisholm _v._ Georgia,[456] that the Supreme Court may

proceed _ex parte_ if a State refuses to appear when duly summoned. The

long drawn out litigation between Rhode Island and Massachusetts is of

even greater significance for its rulings, after the case had been

pending for seven years, that though the Constitution does not extend

the judicial power to all controversies between States, yet it does not

exclude any;[457] that a boundary dispute is a justiciable and not a

political question;[458] and that a prescribed rule of decision is

unnecessary in such cases. On the last point Justice Baldwin stated:

"The submission by the sovereigns, or states, to a court of law or

equity, of a controversy between them, without prescribing any rule of

decision, gives power to decide according to the appropriate law of the

case (11 Ves. 294); which depends on the subject-matter, the source and

nature of the claims of the parties, and the law which governs them.

From the time of such submission, the question ceases to be a political

one, to be decided by the _sic volo_, _sic jubeo_, of political power;

it comes to the court, to be decided by its judgment, legal discretion

and solemn consideration of the rules of law appropriate to its nature

as a judicial question, depending on the exercise of judicial power; as

it is bound to act by known and settled principles of national or

municipal jurisprudence, as the case requires."[459]

MODERN TYPES OF SUITS BETWEEN STATES

Beginning with Missouri _v._ Illinois and the Sanitary District of

Chicago,[460] which sustained jurisdiction to entertain an injunction

suit to restrain the discharge of sewage into the Mississippi River,

water rights, the use of water resources, and the like have become an

increasing source of suits between States. Such suits have been

especially frequent in the western States, where water is even more of a

treasure than elsewhere, but they have not been confined to any one

region. In Kansas _v._ Colorado,[461] the Court established the

principle of the equitable division of river or water resources between

conflicting State interests. In New Jersey _v._ New York[462] where New

Jersey sought to enjoin the diversion of waters into the Hudson River

watershed for New York in such a way as to diminish the flow of the

Delaware River in New Jersey, injure its shad fisheries, and increase

harmfully the saline contents of the Delaware, Justice Holmes stated for

the Court: "A river is more than an amenity, it is a treasure. It offers

a necessity of life that must be rationed among those who have power

over it. New York has the physical power to cut off all the water within

its jurisdiction. But clearly the exercise of such a power to the

destruction of the interest of lower States could not be tolerated. And,

on the other hand, equally little could New Jersey be permitted to

require New York to give up its power altogether in order that the river

might come down to it undiminished. Both States have real and

substantial interests in the river that must be reconciled as best they

may be."[463]

Other types of interstate disputes of which the Court has taken

jurisdiction include suits by a State as the donee of the bonds of

another to collect thereon,[464] by Virginia against West Virginia to

determine the proportion of the public debt of the original State of

Virginia which the latter owed the former,[465] of one State against

another to enforce a contract between the two,[466] of a suit in equity

between States for the determination of a decedent's domicile for

inheritance tax purposes,[467] and of a suit by two States to restrain a

third from enforcing a natural gas measure which purported to restrict

the interstate flow of natural gas from the State in the event of a

shortage.[468] In general in taking jurisdiction of these suits, along

with those involving boundaries and the diversion or pollution of water

resources, the Supreme Court proceeded upon the liberal construction of

the term "controversies between two or more States" enunciated in Rhode

Island _v._ Massachusetts,[469] and fortified by Chief Justice

Marshall's dictum in Cohens _v._ Virginia[470] concerning jurisdiction

because of the parties to a case, that "it is entirely unimportant, what

may be the subject of controversy. Be it what it may, these parties have

a constitutional right to come into the Courts of the Union."

CASES OF WHICH THE COURT HAS DECLINED JURISDICTION

In other cases, however, the Court, centering its attention upon the

elements of a case or controversy, has declined jurisdiction. Thus in

Alabama _v._ Arizona[471] where Alabama sought to enjoin 19 States from

regulating or prohibiting the sale of convict-made goods, the Court went

far beyond holding that it had no jurisdiction, and indicated that

jurisdiction of suits between States will be exercised only when

absolutely necessary, that the equity requirements in a suit between

States are more exacting than in a suit between private persons, that

the threatened injury to a plaintiff State must be of great magnitude

and imminent, and that the burden on the plaintiff State to establish

all the elements of a case is greater than that generally required by a

petitioner seeking an injunction suit in cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take

jurisdiction of a suit brought by Massachusetts against Missouri and

certain of its citizens to prevent Missouri from levying inheritance

taxes upon intangibles held in trust in Missouri by resident trustees.

In holding that the complaint presented no justiciable controversy, the

Court declared that to constitute such a controversy, the complainant

State must show that it "has suffered a wrong through the action of the

other State, furnishing ground for judicial redress, or is asserting a

right against the other State which is susceptible of judicial

enforcement according to * * * the common law or equity systems of

jurisprudence."[472] The fact that the trust property was sufficient to

satisfy the claims of both States and that recovery by either would not

impair any rights of the other distinguished the case from Texas _v._

Florida,[473] where the contrary situation obtained. Furthermore, the

Missouri statute providing for reciprocal privileges in levying

inheritance taxes did not confer upon Massachusetts any contractual

right. The Court then proceeded to reiterate its earlier rule that a

State may not invoke the original jurisdiction of the Supreme Court for

the benefit of its residents or to enforce the individual rights of its

citizens.[474] Moreover, Massachusetts could not invoke the original

jurisdiction of the Court by the expedient of making citizens of

Missouri parties to a suit not otherwise maintainable.[475] Accordingly,

Massachusetts was held not to be without an adequate remedy in

Missouri's courts or in a federal district court in Missouri.[476]

THE PROBLEM OF ENFORCEMENT; VIRGINIA _v._ WEST VIRGINIA

A very important issue that presents itself in interstate litigation is

the enforcement of the Court's decree, once it has been entered. In some

types of suits, as Charles Warren has indicated, this issue may not

arise; and if it does, it may be easily met. Thus a judgment putting a

State in possession of disputed territory is ordinarily self-executing.

But if the losing State should oppose execution, refractory State

officials, as individuals, would be liable to civil suits or criminal

prosecutions in the federal courts. Likewise an injunction decree may be

enforced against State officials as individuals by civil or criminal

proceedings. Those judgments, on the other hand, which require a State

in its governmental capacity to perform some positive act present the

issue of enforcement in more serious form. The issue arose directly in

the long and much litigated case between Virginia and West Virginia over

the proportion of the State debt of original Virginia owed by West

Virginia after its separate admission to the Union under a compact which

provided that West Virginia assume a share of the debt. The suit was

begun in 1906, and a judgment was rendered against West Virginia in

1915. Finally in 1917 Virginia filed a suit against West Virginia to

show cause why, in default of payment of the judgment, an order should

not be entered directing the West Virginia legislature to levy a tax for

payment of the judgment.[477] Starting with the rule that the judicial

power essentially involves the right to enforce the results of its

exertion,[478] the Court proceeded to hold that it applied with the same

force to States as to other litigants,[479] and to consider appropriate

remedies for the enforcement of its authority. In this connection, Chief

Justice White declared: "As the powers to render the judgment and to

enforce it arise from the grant in the Constitution on that subject,

looked at from a generic point of view, both are federal powers and,

comprehensively considered, are sustained by every authority of the

federal government, judicial, legislative, or executive, which may be

appropriately exercised."[480] The Court, however, left open the

question of its power to enforce the judgment under existing legislation

and scheduled the case for reargument at the next term, but in the

meantime West Virginia accepted the Court's judgment and entered into an

agreement with Virginia to pay it.[481]

Controversies Between a State and Citizens of Another State

The decision in Chisholm _v._ Georgia[482] that this category of cases

included equally those where a State was a party defendant provoked the

proposal and ratification of the Eleventh Amendment, and since then

controversies between a State and citizens of another State have

included only those cases where the State has been a party plaintiff or

has consented to be sued. As a party plaintiff, a State may bring

actions against citizens of other States to protect its legal rights or

as _parens patriae_ to protect the health and welfare of its citizens.

In general, the Court has tended to construe strictly this grant of

judicial power which simultaneously comes within its original

jurisdiction by perhaps an even more rigorous application of the

concepts of cases and controversies than that in cases between private

parties.[483] This it does by holding rigorously to the rule that all

the party defendants be citizens of other States,[484] and by adhering

to Congressional distribution of its original jurisdiction concurrently

with that of other federal courts.[485]

NON-JUSTICIABLE CONTROVERSIES

The Supreme Court has refused to take jurisdiction of a number of suits

brought by States because of the lack of a justiciable controversy. In

cases like Mississippi _v._ Johnson[486] and Georgia _v._ Stanton,[487]

the political nature of the controversy constituted the dominant reason.

In others, like Massachusetts _v._ Mellon[488] and Florida _v._

Mellon,[489] the political issue, though present, was accompanied by the

inability of a State to sue in behalf of its citizens as _parens

patriae_ to contest the validity of an act of Congress when in national

matters the National Government bore the relation of _parens patriae_ to

the same persons as citizens of the United States. Moreover, a State may

not bring a suit in its own name for the benefit of particular

persons.[490]

JURISDICTION CONFINED TO CIVIL CASES

In Cohens _v._ Virginia[491] there is a dictum to the effect that the

original jurisdiction of the Supreme Court does not include suits

between a State and its own citizens. Long afterwards, the Supreme Court

dismissed an action for want of jurisdiction because the record did not

show the corporation against which the suit was brought was chartered in

another State.[492] Subsequently the Court has ruled that it will not

entertain an action by a State to which its citizens are either parties

of record, or would have to be joined because of the effect of a

judgment upon them.[493] In his dictum in Cohens _v._ Virginia, Chief

Justice Marshall also indicated that perhaps no jurisdiction existed

over suits by States to enforce their penal laws.[494] Sixty-seven years

later the Court wrote this dictum into law in Wisconsin _v._ Pelican

Insurance Co.[495] Here Wisconsin sued a Louisiana corporation to

recover a judgment rendered in its favor by one of its own courts.

Relying partly on the rule of international law that the courts of no

country execute the penal laws of another, partly upon the 13th section

of the Judiciary Act of 1789 which vested the Supreme Court with

exclusive jurisdiction of controversies of a civil nature where a State

is a party, and partly on Justice Iredell's dissent in Chisholm _v._

Georgia,[496] where he confined the term "controversies" to civil suits,

Justice Gray ruled for the Court that for purposes of original

jurisdiction, "controversies between a State and citizens of another

State" are confined to civil suits.[497]

SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION DECLINED

The distinction between suits brought by States to protect the welfare

of the people as a whole and suits to protect the private interests of

individual citizens is not easily drawn. In Oklahoma ex rel. Johnson

_v._ Cook,[498] the Court dismissed a suit brought by Oklahoma to

enforce the statutory liability of a stockholder of a State bank then in

the process of liquidation through a State officer. Although the State

was vested with legal title to the assets under the liquidation

procedure, the State's action was independent of that and it was acting

merely for the benefit of the bank's creditors and depositors. A

generation earlier the Court refused jurisdiction of Oklahoma _v._

Atchison, Topeka & Santa Fe R. Co.[499] in which Oklahoma sought to

enjoin unreasonable rate charges by a railroad on the shipment of

specified commodities, inasmuch as the State was not engaged in shipping

these commodities and had no proprietary interest in them.

SUITS BY A STATE AS _PARENS PATRIAE_; JURISDICTION ACCEPTED

Georgia _v._ Evans,[500] on the other hand, presents the case of a clear

State interest as a purchaser of materials. Here, Georgia sued certain

asphalt companies for treble damages under the Sherman Act arising

allegedly out of a conspiracy to control the prices of asphalt of which

Georgia was a large purchaser. The matter of Georgia's interest was not

contested and did not arise. The case is primarily significant for the

ruling that a State is a person under section 7 of the Sherman Act

authorizing suits by "any person" for treble damages arising out of

violations of the Sherman Act. A less clear-cut case, and one not

altogether in accord with Oklahoma _v._ Atchison, Topeka & Santa Fe R.

Co.,[501] is Georgia _v._ Pennsylvania R. Co.[502] in which the State,

suing as _parens patriae_ and in its proprietary capacity, was permitted

to file a bill of complaint against twenty railroads for injunctive

relief from freight rates, allegedly discriminatory against the State

and asserted to have been fixed through coercive action by the northern

roads against the southern roads in violation of the 16th section of the

Clayton Act. Although the rights of Georgia were admittedly based on

federal laws, the Court indicated that the enforcement of the Sherman

and Clayton acts depends upon civil as well as criminal sanctions.

Moreover, the interests of a State for purposes of invoking the original

jurisdiction of the Supreme Court were held, as in Georgia _v._

Tennessee Copper Co.,[503] not to be confined to those which are

proprietary but to "embrace the so-called 'quasi-sovereign' interests

which * * * are 'independent of and behind the titles of its citizens,

in all the earth and air within its domain.'"[504]

GEORGIA _v._ PENNSYLVANIA RAILROAD

In the course of his opinion Justice Douglas, speaking for a narrowly

divided Court, treated the alleged injury to Georgia as a proprietor as

a "makeweight," and remarked that the "original jurisdiction of this

Court is one of the mighty instruments which the framers of the

Constitution provided so that adequate machinery might be available for

the peaceful settlement of disputes between States and between a State

and citizens of another State * * * Trade barriers, recriminations,

intense commercial rivalries had plagued the colonies. The traditional

methods available to a sovereign for the settlement of such disputes

were diplomacy and war. Suit in this Court was provided as an

alternative."[505] Discriminatory freight rates, said he, may cause a

blight no less serious than noxious gases in that they may arrest the

development of a State and put it at a competitive disadvantage.

"Georgia as a representative of the public is complaining of a wrong

which, if proven, limits the opportunities of her people, shackles her

industries, retards her development, and relegates her to an inferior

economic position among her sister States. These are matters of grave

public concern in which Georgia has an interest apart from that of

particular individuals who may be affected. Georgia's interest is not

remote; it is immediate. If we denied Georgia as _parens patriae_ the

right to invoke the original jurisdiction of the Court in a matter of

that gravity, we would whittle the concept of justiciability down to the

stature of minor or conventional controversies. There is no warrant for

such a restriction."[506]

Controversies Between Citizens of Different States

THE MEANING OF "STATE"; HEPBURN _v._ ELLZEY