The Constitution of the United States of America: Analysis and Interpretation Part 103

CLa.s.sIFICATION OF SUITS AGAINST OFFICERS

Suits against officers involving the doctrine of sovereign immunity have been cla.s.sified 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 a.s.sertion 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 unconst.i.tutional 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 cla.s.sified 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 pa.s.sed 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 const.i.tute 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 const.i.tute 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 Ma.s.sachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Const.i.tution 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 munic.i.p.al 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._ Ma.s.sachusetts,[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 const.i.tutional 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 pet.i.tioner 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 Ma.s.sachusetts 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 const.i.tute such a controversy, the complainant State must show that it "has suffered a wrong through the action of the other State, furnis.h.i.+ng ground for judicial redress, or is a.s.serting 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 Ma.s.sachusetts 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, Ma.s.sachusetts 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, Ma.s.sachusetts 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 a.s.sume 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 Const.i.tution 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 const.i.tuted the dominant reason.

In others, like Ma.s.sachusetts _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 t.i.tle to the a.s.sets 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 s.h.i.+pment of specified commodities, inasmuch as the State was not engaged in s.h.i.+pping 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 a.s.serted 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 t.i.tles 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 Const.i.tution 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 compet.i.tive 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, r.e.t.a.r.ds 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

Despite stringent definitions of the words "citizen" and "State" and strict statutory safeguards against abuse of the jurisdiction arising out of it, the diversity of citizens.h.i.+p clause is one of the more prolific sources of federal jurisdiction. In Hepburn _v._ Ellzey,[507]

Chief Justice Marshall, speaking for the Court, confined the meaning of the word "State," as used in the Const.i.tution, to "the members of the American confederacy" and ruled that a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizens.h.i.+p. In the course of his brief opinion Marshall owned that it was "extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the union should be closed" to the residents of the District, but the situation, he indicated, was "a subject for legislative, not for judicial consideration."[508] The same restrictive rule was later extended to citizens of territories of the United States.[509]

Extension of Jurisdiction by the Act of 1940

Whether Chief Justice Marshall had in mind a const.i.tutional amendment or an act of Congress when he spoke of legislative consideration is not clear. At any rate, not until 1940 did Congress enact a statute to confer on federal district courts jurisdiction of civil actions (involving no federal question) "between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory."[510] In National Mutual Insurance Co. _v._ Tidewater Transfer Co.,[511] this act was sustained by five judges, but for widely different reasons. Justice Jackson, in an opinion in which Justices Black and Burton joined, was for adhering to the rule that the District of Columbia is not a State, but held the act to be valid nevertheless because of the exclusive and plenary power of Congress to legislate for the District and its broad powers under the necessary and proper clause.[512] Justice Rutledge, in a concurring opinion, in which Justice Murphy joined, agreed that the act was valid and a.s.serted that the Ellzey case should be overruled.[513] Chief Justice Vinson in a dissent in which Justice Douglas concurred[514] and Justice Frankfurter in a dissent in which Justice Reed joined[515]

thought the act invalid and would have adhered to the rule in the Ellzey case. The net result is that the Ellzey case still stands insofar as it holds that the District of Columbia is not a State, but that under Congressional enactment citizens of the District may now sue citizens of States in the absence of a federal question, on the basis of no statable const.i.tutional principle, but through the grace of what Justice Frankfurter called "conflicting minorities in combination."[516]

CITIZENs.h.i.+P, NATURAL PERSONS