now subsisting, or that may hereafter subsist, between two or more states, respecting jurisdiction or territory, the Senate sha possess the following powers, etc. [And here follows a scheme for a special court, in terms similar to that provided in the articles of confederation.] "Sec. 3. All controversies concerning lands claimed under different grants of two or more states, whose jurisdiction, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different states." It will therefore be perceived that under the confederation the necessity of a tribunal to hear and determine matters in question between two or more states was recognized; that a court was provided for that purpose; and that the scope or field within which it was expected such matters in question or controversies should or might arise for the determination of such court extended to "all disputes and differences now subsisting or that hereafter may arise between two or The 11th article contained, among other more states concerning boundary, jurisdic-sections, the following: tion, or any other cause whatever." When the Federal convention met in 1787 to form the present Constitution of the United States, several drafts of such an instrument were presented for the consideration of the convention. One of these was of fered on May 29 by Edmund Randolph, of Virginia, in the shape of resolutions covering the entire subject of a national government. The 9th resolution prescribed the formation of a national judiciary, to consist of a supreme and inferior tribunals, with jurisdiction to hear and determine, among other things, "questions which involve the internal peace or harmony." 1 Elliot, Debates, p. 143. On the same day Charles Pinckney, of South Carolina, submitted a draft of a Federal government, the 7th article whereof was as follows: [222] *"The Senate shall have the sole and exclusive power to declare war and to make treaties, and to appoint ambassadors and other ministers to foreign nations, and judges of the Supreme Court." "They shall have the exclusive power to regulate the manner of deciding all disputes and controversies now subsisting, or which may arise, between the states respecting jurisdiction or territory." 1 Elliot, Debates, p. 145. On June 19 the committee of the whole, to which had been referred the several propositions and drafts, reported to the convention for its consideration a draft as altered, amended, and agreed to in the committee. The 13th resolution was as follows: "That the jurisdiction of the national judiciary shall extend to cases which respect the collection of the national revenue, impeachment of any national officers, and questions which involve the national peace and harmony." 1 Elliot, Debates, p. 182. On August 6 a committee of five members, to which the various propositions, as originally made and as amended in the committee of the whole, reported to the convention a draft of the Constitution, the 9th article of which was as follows: "Sec. 1. The Senate of the United States shall have power to make treaties and appoint ambassadors and judges of the Supreme Court. "Sec. 2. In all disputes and controversies States shall be vested in one Supreme Court, "Sec. 3. The jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the legislature of the United States; to all cases affecting ambassadors, trial of impeachment of officers of the United other public ministers, and consuls; to the States; to all cases of admiralty and maritime jurisdiction; to controversies between two or more states, except such as shall regard territory or jurisdiction; between a state and citizens of another state; between citizens of different states; and between a state or the citizens thereof and foreign states, citizens, or subjects." 1 Elliot, Debates, p. 224. It may be observed, in passing, that, in this draft, all disputes and controversies between two or more states respecting jurisdiction or territory are to be determined by a special court to be constituted by the Senate; and controversies between two or more states, except such as shall regard territory or jurisdiction, are determinable by the Supreme Court. It is therefore apparent that other disputes or controversies between states were regarded and provided for besides those respecting territory or jurisdic tion. This draft, together with numerous suggestions and amendments, was on August 7 submitted to the committee of the whole. On September 12 a committee on revision reported a draft of the Constitution as revised and arranged. This draft, which, as respects our present subject, was in the terms of the Constitution as finally adopted, took from the Senate the power to constitute a court to try disputes between the states respecting territory or jurisdiction, and struck out the provision excluding from the jurisdiction of the Supreme Court disputes between the states in matters respecting jurisdiction and territory. The entire jurisdiction of controversies between states was bestowed upon the Supreme Court, in the 2d section of article 3, in the following clares that 'the judicial power shall extend The judicial power shall extend to all cases [224]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; tled by our predecessors, on great deliberato all cases of admiralty and maritime ju- tion, that this court may exercise its origrisdiction; to controversies to which the inal jurisdiction in suits against a state, unUnited States shall be a party; to controver-der the authority conferred by the Constitusies between two or more states; between a tion and existing acts of Congress." 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. "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." As in this section power is conferred on Congress to make regulations affecting the exercise by the Supreme Court of its jurisdiction, it may not be out of place to quote the provisions in this respect of the judiciary act of 1789: "The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction." Rev. Stat. § 687. The case of New York v. Connecticut, 4 Dall. 3, 1 L. ed. 715, in 1799, was the first instance of an exercise by the Supreme Court of its jurisdiction in a controversy between two states. It was a case of a bill in equity filed by the state of New York against the state of Connecticut and certain private persons who were grantees of the latter state of lands, the jurisdiction over which was claimed by both states. The object of the bill was to obtain an injunction to stay proceedings in ejectment pending in the circuit court of the United States for the district of Connecticut. In March, 1832, the state of Rhode Island filed in this court a bill against the state of Massachusetts, for the settlement of the boundary between the two states, and moved for a subpoena to be issued, according to the practice of the court in similar cases. An appearance was entered for Massachusetts, and a motion was made to dismiss the bill for want of jurisdiction. In support of the motion it was contended that this court had no jurisdiction because of the character of the respondent independent of the nature of the suit, and because of the nature of the suit independent of the character of the respondent. It was not denied that Massachusetts had agreed, by adopting the Federal Constitution, to submit her controversies with other states to judicial decision, but it was claimed that Congress had passed no law establishing a mode of proceeding, the charac ter of the judgment to be rendered, and means of enforcing it. As respects the nature of the suit, it was argued that it was in its character political, brought by a sovereign, in that avowed character; that the ju dicial power of the United States extended, by the Constitution, only to cases of law and equity, and that questions of jurisdic-[226] tion over territory were not cases of that kind, nor of "a civil nature." The court held that jurisdiction was conferred by the Constitution and the judiciary act, and that, as Massachusetts had ap peared, submitted to the process, and pleaded in bar of the plaintiff's action certain matters on which the judgment of the court was asked, all doubts as to jurisdiction over the parties were at rest. As respected the power of the court to hear and determine the subject-matters of the suit, it was held that jurisdiction existed; that the dispute was a controversy between two states within the judicial power of the United States. 12 Pet. 657, 9 L ed. 1233; 13 Pet. 23, 10 L. ed. 41. Before leaving this case it is to be remarked that the principal contest was as to whether a question of boundary, involving as it did the question of sovereignty over territory, was a judicial question of a civil na The court was of opinion that, as the state of New York was not a party to the suits be[225]low, nor interested in the decisions *of those suits, an injunction ought not to issue. No argument was made that the court had not jurisdiction, and the court proceeded on the assumption that it possessed jurisdiction, although, under the facts of the case, it re-ture. The implication was that the controfused the injunction prayed for. New Jersey v. New York, 5 Pet. 285, 8 L. ed. 127, was the case of a bill filed by the state of New Jersey against the state of New York for the purpose of ascertaining and settling the boundary between the two states. In an opinion awarding the process of subpœna Chief Justice Marshall said: "The Constitution of the United States de versies between two or more states, in which jurisdiction had been granted by the Constitution, did not include questions of a political character. In some of the later cases the contention has been the very opposite; that the intention of the Constitution was only to apply to questions in which the sov ereign and political powers of the respective states were in controversy. In Florida v. Georgia, 11 How. 293, 13 L. ed. 702, leave was given by this court to the state of Florida to file a bill against the state of Georgia, and process of subpoena was directed to be issued against the state of Georgia. The object of the bill was to ascertain and establish the boundary between the two states, which was in controversy. The state of Georgia answered, and the cause was proceeded in, in pursuance of the prayers of the bill. Subsequently an application was made by the Attorney General of the United States, alleging that the latter were interested and concerned in the matter in controversy, and moving the court that he be permitted to appear in the case, and be heard in behalf of the United States, in such time and form as the court should order. This motion was opposed by the states, and the matter was argued at length. The judges [227]*differed, but neither in the opinion of the majority, granting the motion of the Attorney General, nor in that of the dissenting minority, was any doubt expressed of the existence of the jurisdiction of the court over the controversy between the two states. Pennsylvania v. Wheeling & B. Bridge Co. 9 How. 647, 13 L. ed. 294; Idem v. Idem, 11 How. 528, 13 L. ed. 799; Idem v. Idem, 13 How. 518, 14 L. ed. 249; Idem v. Idem, 18 How. 429, 15 L. ed. 436, was a case in equity, in which the state of Pennsylvania filed a bill against the Wheeling & Belmont Bridge Company, a corporation of Virginia, and certain contractors, charging that the defendants, under color of an act of the leg islature of Virginia, were engaged in the construction of a bridge across the Ohio river at Wheeling, which would, as was alleged, obstruct its navigation to and from the ports of Pennsylvania, by steamboats and other crafts which navigated the same. Many different questions were discussed by counsel and considered by the court, respecting the nature and extent of the jurisdiction of this court, the right of the complainant state, whether at law or in equity, and the character of the decree which could be rendered. Several observations made in the opinion of the court will be hereafter adverted to when we come to consider the second ground of demurrer urged in the case before us. It is sufficient for our present purpose to say that the original jurisdiction of the court was sustained, a commissioner was appointed to take and report proofs, and a decree was entered declaring the bridge to be an obstruction of the free navigation of the river, that thereby a special damage was occasioned to the plaintiff, for which there was not an adequate remedy at law, and directing that the obstruction be removed, either by elevating the bridge to a height designated, or by abatement. South Carolina v. Georgia, 93 U. S. 4, 23 L. ed. 782, was a suit in equity brought in this court, whereby the state of South Carolina sought an injunction to restrain the state of Georgia, the United States Secretary of War, the Chief Engineer of the United States Army, their agents and subordinates, from obstructing the navigation of the Savannah river, in violation of an alleged compact subsisting between the states of South Carolina and *Georgia, and which had[228] been entered into on April 24, 1787. This court, not denying, but assuming, jurisdiction in the case, held that, by adopting the Federal Constitution, and thereby delegating to the general government the right to regulate commerce with foreign nations and among the several states, the compact between the two states in respect to the Savannah river ceased to operate, and that the acts complained of, being done in pursuance of congressional authority, and designed to improve navigation, could not be deemed an illegal obstruction, and accordingly the special injunction previously granted was dissolved and the bill dismissed. Wisconsin v. Duluth, 96 U. S. 381, 24 L. ed. 669, was the case of a bill in chancery filed in this court by the state of Wisconsin, by virtue of the constitutional provision which confers original jurisdiction of suits between the states and between a state and citizens of other states. The city of Duluth, a corporation and citizen of the state of Minnesota, was defendant; and, after answer, replication, and the taking of a large amount of evidence, the case came on for a final decree. The nature of the case and the reasoning upon which this court proceeded in disposing of it will sufficiently appear in the following quotations from the opinion delivered by Mr. Justice Miller: "The present suit was brought by the state of Wisconsin on the ground that the channel of the St. Louis river, as it flowed in a state of nature, was the common boundary between that state and the state of Minnesota, and that she has an interest in the continuance of the channel as an important highway for navigation and commerce in its natural and usual course; that the canal cut by Duluth across Minnesota point, deeper than the natural outlet of the St. Louis river at its mouth, has diverted, and will continue to divert, the current of that river through Superior bay into the lake by way of that canal; that the result of this is that, while the cur rent cuts that canal deeper and gives an outlet for the water there at a lower level, it at the same time, by diverting this current from the old outlet, causes it to fill up, and thus destroys the usefulness of the river and bay as an aid of commerce, on which the state had a right to rely. The bill, after reciting the facts which we have already detailed, insists that the city of Duluth can [229]. not, by any right of her own, nor by any au thority conferred on her by the state of Minnesota, thus divert the waters of the stream the St. Louis river-from their natural course, to the prejudice of the rights of the state of Wisconsin or of her citizens; declares that this canal at Duluth does this in violation of law; and it prays of this court to enjoin Duluth from protecting or maintaining it, and by way of mandatory injunc tion to compel that city to fill up the canal and restore things in that regard to the condition of nature in which they were before the canal was made. "The answer, while admitting the con struction of the canal, denies almost every other material allegation of the bill. It denies especially that the canal has the effect of changing the course of the current of the river, or does any injury to the southern entrance to Superior bay, or diminishes the flow of water at that point. A large amount of testimony, professional and nonprofessional, is presented on that subject. "The answer also sets up, as an affirmative defense to the relief sought by the bill, that the United States, by the legislative and executive departments of the government, have approved of the construction of the canal, have taken possession and control of the work, have appropriated and spent money on it, and adopted it as the best mode of making a safe and accessible harbor at the western end of the great system of lake navigation. filled up and obstructed. While the engin "These views show conclusively that the The court therefore did not decline jurisdiction, but exercised it by inquiring into the facts put in issue by the bill and answer, and by dismissing the bill for want of equity. In Virginia v. West Virginia, 11 Wall. 39, 20 L. ed. 67, a bill was filed in this court to settle the boundaries between the two states. *There was a demurrer to the bill. In deliv-[231] ering the opinion of the court Mr. Justice Miller said:" "Many interesting questions have been argued, and ably argued, by counsel, which we have not found it necessary to decide. The "The first proposition on which counsel incounsel for defense deny that the state of sist in support of the demurrer is that this Wisconsin has any such legal interest in the court has no jurisdiction of the case, because flow of the waters in their natural course as it involves the consideration of questions authorizes her to maintain a suit for their purely political; that is to say, that the diversion. It is argued that this court can main question to be decided is the conflicttake cognizance of no question which con- ing claims of the two states to the exercise of cerns alone the rights of a state in her polit-political jurisdiction and sovereignty over ical or sovereign character; that to sustain this suit she must have some proprietary interest which is affected by the defendant. This question has been raised and discussed in almost every case brought before us by a state, in virtue of the original jurisdiction of the court. We do not find it necessary to make any decision on the point as applicable [230]to the case before us. Nor shall we address ourselves to the consideration of the mass of conflicting evidence as to the effect of the canal on the flow of the waters of Superior bay. "We will first consider the affirmative defense already mentioned; for, if that be found to be true in point of fact, it will preclude any such action by this court as the plaintiff has prayed for." The court then proceeded to inquire into the action of the general government in the matter of the canal in question, and found that, as matter of fact, the United States had taken possession and control of the canal as a public work. The opinion concluded as follows: "If, then, Congress, in the exercise of a lawful authority, has adopted and is carrying out a system of harbor improvements at Duluth, this court can have no lawful authority to forbid the work. If that body sees fit to provide a way by which the great com. merce of the lakes and the countries west of them, even to Asia, shall be securely accommodated at the harbor of Duluth by this short canal of 300 or 400 feet, can this court decree that it must forever pursue the old channel, by the natural outlet, over water too shallow for large vessels, unsafe for small ones, and by a longer and much more tedious route? "When Congress appropriates $10,000 to improve, protect, and secure this canal, this court can have no power to require it to be the territory and inhabitants of the two counties which are the subject of dispute. This proposition cannot be sustained without reversing the settled course of decision in this court, and overturning the principles on which several well-considered cases have been decided." And, after citing Rhode Island v. Massachusetts, 12 Pet. 724, 9 L. ed. 1260; Missouri v. Iowa, 7 How. 660, 12 L. ed. 861; Florida v. Georgia, 17 How. 478, 15 L. ed. 181; and Alabama v. Georgia, 23 How. 505, 16 L. ed. 556, the conclusion of the court was thus expressed: "We consider, therefore, the established doctrine of this court to be that it has jurisdiction of questions of boundary between two states of this Union, and that this jurisdiction is not defeated because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those states, or because the decree which the court may render affects the territorial limits of the political jurisdiction and sovereignty of the states which are parties to the proceeding." In New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, 27 L. ed. 656, 2 Sup. Ct. Rep. 176, it was found that, in view of the 11th Amendment to the Constitution of the United States, declaring that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens and subjects of any foreign state," as matter of fact, under the pleadings and testimony, the suits were commenced and were prosecuted solely by the owners of the bonds and coupons to collect which was the object of the suits, and it was accordingly held that "the evident purpose of the amendment, so promptly pro- | And consequently judgment was entered posed and finally adopted, was to prohibit all for the defendant on the demurrer that had suits against a state by or for citizens of oth-been interposed to the declaration. er states or aliens, without the consent of [232]the state to be sued, and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the Constitution, from entertaining these suits, and the bill in each case is dismissed." In Wisconsin v. Pelican Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, the nature of the case and of the question involved was thus stated by Mr. Justice Gray, in delivering the opinion of the court: "This action is brought upon a judgment recovered by the state of Wisconsin in one of her own courts against the Pelican Insurance Company, a Louisiana corporation, for penalties imposed by a statute of Wisconsin for not making returns to the insurance commissioner of the state, as required by that statute. The leading question argued at the bar is whether such an action is within the original jurisdiction of this court. "The ground on which the jurisdiction is invoked is not the nature of the cause, but the character of the parties, the plaintiff being one of the states of the Union, and the defendant a corporation of another of those states." After citing and considering the cases, the justice expressed the following conclu sions: "The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties. From the first organization of the courts of the United States, nearly a century ago, it has always been assumed that the original jurisdiction of this court over controversies between a state and citizens of another state or of a foreign country does not extend to a suit by a state to recover penalties for a breach of her own municipal law. The statute of Wisconsin, under which the state recovered in one of her [233]own courts the *judgment now and here sued on, was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another state doing business in the state of Wisconsin without having deposited with the proper officer of the state a full statement of its property and business during the previous year. The cause of action was not any private injury, but solely the offense committed against the state by violating her law. This court, therefore, cannot entertain an original action to compel the defendant to pay to the state of Wisconsin a sum of money in satisfaction of the judgment for that fine." Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. 504, was an action brought in the circuit court of the United States for the eastern district of Louisiana, against the state of Louisiana, by Hans, a citizen of that state, to recover the amount of certain coupons annexed to bonds of the state. The circuit court, on motion of the attorney general of the state, dismissed the case for want of jurisdiction. This court affirmed the judgment of the circuit court, and held that the judicial power of the United States did not extend to the case of a suit brought against a state by one of its own citizens. In the course of the opinion, delivered by Mr. Justice Bradley, the following observations were made: "The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between states as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Baltimore, 1 Ves. Sr. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those ar ticles. 131 U. S. 1. appx. The establishment of this new branch of jurisdiction seemed to be *necessary from the extinguish [284) ment of diplomatic relations between the states. Of other controversies between a state and another state, or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin v. Pelican Ins. Co. 127 U. S. 265, 288, 289, 32 L. ed. 239, 243, 8 Sup. Ct. Rep. 1370, and cases there cited." The last case which we have had occasion to examine is that of Louisiana v. Texas, 176 U. S. 1, 15, 44 L. ed. 347, 353, 20 Sup. Ct. Rep. 251, 256. The case was brought before us by a bill in equity filed by the state of Louisiana against the state of Texas, her governor, and her health officer. The bill alleged that the state of Texas had granted to its governor and its health officer extensive powers over the establishment and maintenance of quarantines over infectious and contagious diseases; that this power had been exercised in a way and with a purpose to build up and benefit the commerce of cities in Texas, which were business rivals of the city of New Orleans, and prayed for a decree that neither the state of Texas, nor her governor, nor her health officer, has the right, under the cover of an exercise of police or quarantine powers, to declare and enforce an embargo against interstate commerce be |