58. State of Iowa v. State of Illinois. (202 U.S. 59) 1906. In the first case of Iowa v. Illinois (147 U.S. 1), decided in 1893, the Court decided that the boundary line between the two States was and is 'the middle of the main navigable channel of the Mississippi River', and as counsel of the two States then desired that the line be drawn in those portions of the River where the nine bridges spanned the Mississippi, the Court ordered that a commission of three be appointed upon suggestion of counsel to ascertain and designate the boundary line between the two States, to make a proper examination, and to delineate on maps the true line in accordance with the decree of the Court, and to report to the Court for its further action in the premises. In the second case of Iowa v. Illinois (151 U.S. 238), decided in 1893, the Court set aside its order of March 7, appointing commissioners, and its order of April 10, 1893, approving the report of the commissioners ascertaining and marking the boundary line between the two States at the Keokuk and Hamilton bridge at Keokuk, Iowa, on the ground that the counsel for Illinois did not concur in the motion for the approval of the report of the commissioners as counsel for Iowa thought and as the Court believed they had. The Court also set aside its order of the same day for the same reason that the commissioners should proceed with all convenient speed' to determine and mark the boundary line at the remaining eight points where bridges crossed the river between the States. consent In the third and final case of Iowa v. Illinois (202 U.S. 59), decided in 1906, the Final Attorneys-General for the two States appeared at the bar of the Supreme Court and decree by severally and jointly, as the report says, moved that body to vacate the proceedings of the had in the second case and the order of the Court in the first case directing the parties. appointment of a commission to ascertain and designate the boundary between the States at the several bridges, and to enter as the final decree in the premises the first part of the decree had in the first case, namely, 'that the boundary line between the State of Iowa and the State of Illinois is the middle of the main navigable channel of the Mississippi River at the places where the nine bridges mentioned in the pleadings cross said river'. The Court complied with the request of counsel, and the decree as requested was entered, thus terminating the controversy to the apparent satisfaction of the litigating States. The three cases of Iowa v. Illinois admit of the single and the very brief comment, that when a Court exists to which the States may resort in an acute controversy they do so, and that when the general principle has been laid down they are upon reflection satisfied with it without insisting that it be executed, inasmuch as the settlement of the principle carries with it the settlement of the controversy and makes further proceedings unnecessary. 59. State of Missouri v. State of Illinois. (202 U.S. 598) 1906. The State of Missouri has thrice appeared against the State of Illinois in the Supreme Court of the United States, setting forth facts in the first case to establish A question of costs. Costs allowed to Illi nois. a nuisance because of the deposit of the sewage of Chicago in the Mississippi in that portion of the river serving as a boundary between the two; in the second case offering evidence to make good its complaint, which evidence was found by the court, after profound study and prolonged examination, not to substantiate the cause of action alleged by the State of Missouri. The third case, Missouri v. Illinois (202 U.S. 598), presented to the court in 1905 and decided in the course of the succeeding year, is the aftermath of a law suit; for, whether the dispute be between individuals or States, costs are involved and must be paid. The costs in question were: $5,650 paid to the special commissioner. $3,776.37 for taking down and transcribing the testimony of defendant's witnesses, 720 etc. Solicitor's fees, viz., $20 for attendance at final hearing and $2.50 for each deposition taken and admitted in evidence, in accordance with Rev. Stat. § 824. $10,146.37 total. The plaintiff objected to the allowance and the Clerk referred the matter to this court.1 Two questions were involved: first, whether costs should be taxed in this case at all; and second, if allowed at all, whether the item of $720 was a proper charge. Mr. Justice Holmes delivered the opinion in this, the third and final, as he did in the second phase of the case, and as the question is one of business the opinion is businesslike. On the allowance of costs in the controversy between two sovereign States of the more perfect Union, the learned Justice briefly, pointedly, and somewhat dryly said: The power of the court to allow costs is not disputed. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 460. The former decree in this case allowed them, and in the stipulation for the appointment of a special commissioner the parties agreed that the costs should be 'taxed by the court on the final disposal of the case, to be paid in such manner as the court may at that time determine.' But it is said that it is inconsistent with the dignity of a sovereign State to ask for costs; that in boundary cases costs have been divided, and that the suit was not for a pecuniary interest, but only the performance of the duty of a sovereign to its citizens, for which no costs should be imposed. So far as the dignity of the State is concerned, that is its own affair. The United States has not been above taking costs. United States v. Sanborn, 135 U.S. 271. As to the supposed rule in boundary cases, it is not absolute. But in many cases of that kind both parties are equally interested to have the boundary settled, and whichever State begins the suit both equally are actors. Thus counter-relief was asked by the defendants in Nebraska v. Iowa, 143 U.S. 359, and Missouri v. Iowa, 160 U.S. 688. As to the nature of this suit, plaintiff alleged serious pecuniary damage to itself by the deposit of great quantities of filth upon the portion of the bed of the Mississippi alleged to belong to it, and, in short, framed its bill like any ordinary bill by a private person to restrain a nuisance. The chief difference was in the size of the nuisance. There is no indication that the defendants desired or needed the determination of this court, as States well might when their jurisdiction was in doubt. So far as this point is concerned, there is no reason why the plaintiff should not suffer the usual consequence of failure to establish its case.2 1 State of Missouri v. State of Illinois (202 U.S. 598, 598-9). The opinion of the learned Justice on the allowance of the item of $720 for solicitor's fees was even briefer : The words of the statute [Rev. Stat. Sec. 824] are broad enough to embrace the testimony, unless they are taken very strictly, and the trouble to the parties in having to visit different places was similar to that caused by the taking of depositions adverted to by Judge Treat in Strauss v. Meyer (22 Fed. Rep. 467). The case is quite distinct from that of testimony taken in court and reduced to writing by the reporter. We are of opinion that the item may be allowed.1 The motion for costs prevailed and a precedent was made between the States for the payment of costs, not in equal moities, but by the sovereign plaintiff failing to establish its case against a sovereign defendant. 60. State of Kansas v. United States. In the opening paragraph of his opinion, which is also the opinion of the Court in the case of Kansas v. United States (204 U.S. 331), decided in 1907, Mr. Chief Justice Fuller said: 'On April 30, 1906, the State of Kansas applied for leave to file a bill of complaint against the United States and others, to which the United States objected on the ground of want of jurisdiction. May 21 leave was granted, without prejudice, and the bill was accordingly filed. As such an application by a State is usually granted as of course, we thought it wiser to allow the bill to be filed, but reserving to the United States the right to object to the jurisdiction thereafter, and hence the words, "without prejudice", were inserted in the order. October 9 leave was granted to the United States to file a demurrer, and in lieu of this a motion to dismiss was substituted, which was submitted November 12 on printed briefs on both sides.' 2 the The case of Kansas v. United States has more than ordinary interest because, on A suit the pleadings at least, it seems to be a suit on the part of Kansas against the United against States. It was so considered by the Court, which was apparently inclined not to grant United leave, as is done in ordinary cases, to file a bill against a State as defendant, but, States. desiring the question to be argued, leave was granted to file the bill apparently in order, that the United States might be heard and the question determined whether the United States, like a State of the Union, could be made a party defendant without express consent as a State of the Union may be because of the general consent given in the Constitution to be sued. On a motion to dismiss substituted for the demurrer originally interposed by the United States, the case was submitted on printed briefs. It may be said at once, before considering the case made by the bill of complaint filed by Kansas, that on a consideration of its merits the Court held that Kansas was not the real party plaintiff but had only lent its name to certain railroad companies in whose behalf it appeared. On this ground, therefore, the case could have been dismissed, inasmuch as even supposing the State of Kansas could sue the United States, railroad companies, instead of the State, were in reality plaintiffs and unable to sue either the United States or a State of the American Union. Recognizing the advisability of standing upon two legs the Court, irrespective of the merits of the case, squarely decided that the United States could not be sued 1 State of Missouri v. State of Illinois (202 U.S. 598, 600). State of Kansas v. United States (204 U.S. 331, 337). grants land to for rail roads, 1866; fit of the land to go to the company. The without its consent and that it had not consented to be sued in this case. controversy, therefore, is of more than passing interest. Under the first heading it Congress may be said, without going into details, that an Act of Congress, approved July 25, 1866, granted lands to the State of Kansas 'to aid in the construction of the Kansas the State and Neosho Valley Railroad and its extension to Red River', and that on the next day a further Act of Congress was approved to the same effect, 'to aid in the construction of a Southern Branch of the Union Pacific Railway and Telegraph Company, from Fort Riley, Kansas, to Fort Smith, Arkansas'. This latter Act granted to the State of Kansas, 'for the use and benefit of said railroad company every alternate section of land or parts thereof designated by odd numbers, to the extent of five alternate sections per mile on each side of said road and not exceeding in all ten sections per mile.' It was specifically stated in Section 3 that the lands therein the bene-granted 'shall inure to the benefit of said company' and, upon the certificate of the Governor of the State of Kansas that any section of ten consecutive miles of the road was completed as provided by the Act, the Secretary of the Interior was to issue patents to the company for so many sections of the land herein granted within the limits above named, and coterminous with said completed section hereinbefore granted'. By Section 8 of the Act the Southern Pacific Railroad Company was authorized to extend and to construct its railroad beyond Kansas, passing through the Indian Territory' with the consent of the Indians, and not otherwise' to Fort Smith in the State of Arkansas, and a right of way was granted through the Indian Territory whenever the Indian title to the land required for this purpose should be extinguished by treaty or otherwise.1 The bill set forth that the road was constructed in Indian Territory through lands no longer claimed or occupied by the tribe as a nation and that some of the lands had been allotted in severalty to individuals of the Creek Nation, and because of these facts the bill alleged that the lands passed to the State under the provisions of the Act of Congress authorizing the construction of the Congress railroad and granting land to the State of Kansas in order to aid its construction. On this part of the case the bill prayed a decree of the Court adjudging to the State as as trustee trustee for the railway company the lands to which it claimed to be entitled in the railway Indian Territory, that the persons to whom they were allotted be directed to surcompany. render possession thereof to the State as trustee, that they be enjoined from disposing of the lands, or, if the Court should be of the opinion that the persons to whom they were allotted and those claiming under them should not be disturbed, that an account be taken of the lands in controversy, and that the United States be adjudged to pay to the State as trustee the value of such lands, estimated at more than ten million dollars. The State claims certain lands under the Act of for the The On this statement of facts the Court found no difficulty in holding that the State hold that was only a nominal party and that the real party in interest was the railroad company, the State that the issue of patents not to the State but directly to the company made the State is only a nominal nothing but a mere conduit for the passage of the title', that if title passed to the State it would only be a trustee of the bare legal title, inasmuch as the railroad company would derive the entire benefit and the State take nothing from the grant, and that in cases where the title passed directly to the railroad company as in this case the Supreme Court had held the title to vest absolutely in the railroad company.2 party. 1 State of Kansas v. United States (204 U.S. 331, 339). Ibid. (204 U.S. 331, 340). In regard to the lands in Indian Territory the case was even clearer, for if any present grant were made it was, as Mr. Chief Justice Fuller said, certainly not to the State of Kansas, since the territory alleged to be granted was beyond the jurisdiction of Kansas. The grant was to Kansas to aid that State in the construction of the railroad, and, in the opinion of the Court, it could only apply to that part of the railroad built in the State, within which it exercised jurisdiction and had the right to construct it, not beyond its confines in which it did not possess jurisdiction and could not as of right construct the railroad. 'In these circumstances', Mr. Chief Justice Fuller said, ' we think it apparent that the name of the State is being used Jurisdicsimply for the prosecution in this court of the claim of the railroad company, and our tion original jurisdiction cannot be maintained.'1 The decision of the Court on this phase of the case is in strict accordance with New Hampshire v. Louisiana (108 U.S. 76), decided in 1883, which held that the State could not appear in behalf of its citizen, although in the case of South Dakota v. North Carolina (192 U.S. 286), decided in 1904, the Court held that a State could sue in its own behalf even although its title were a gift from its citizen who could not himself invoke the original jurisdiction of the Supreme Court. So much for the plaintiff. Next, as to the defendant, for although other parties were joined with the United States as defendants the Court was of the opinion that the United States was the real party in interest and as such could not be sued without its consent. In order to show that by the bill itself the United States was the real party in interest Mr. Chief Justice Fuller said: 'In the present case the parties defendant other than the United States and its officers are Creek Indian allottees and persons claiming under them, and if their allotments should be taken from them, which is a part of the relief sought by the bill, the United States would be subject to a demand from them for the value thereof or for other lands, while the bill prays in the alternative that "in the event that from any equitable considerations the Court should entertain the view that the allottees and those claiming under them should not be disturbed, then that an account be taken of the value of the land in controversy at the time of the respective allotments, and the defendants, the United States of America, be ordered, adjudged, and decreed to pay to your oratrix, as trustee, the sum of such values "." As to the principle by which it may be determined whether a State, in this particular instance the United States, is the party at interest, Mr. Chief Justice Fuller relied upon the case of Minnesota v. Hitchcock (187 U.S. 373, 387), decided in 1901, and quoted with approval the following passage from the opinion of Mr. Justice Brewer, delivering the unanimous judgement of the Court in that case : 'If whether a suit is one against a State is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgement or decree which may be rendered, the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record but by the question of the effect of the judgement or decree which can be entered.' The question of jurisdiction, it cannot be too often said, is fundamental in a court of limited jurisdiction, and especially, it is to be observed, in suits of this kind; for the court cannot go beyond the statute creating it, and the cases are of no ordinary 1 State of Kansas v. United States (204 U.S. 331, 341). a Ibid. (204 U.S. 331, 341–2). denied. |