This case South Carolina v. Georgia (93 U.S. 4, 14), in which the court dismissed the bill because no unlawful obstruction of navigation was proved, but expressly reserved the question, whether a State, when suing in this court for the prevention of a nuisance in a navigable river of the United States, must not aver and show that it will sustain some special and peculiar injury therefrom, and such as would enable a private person to maintain a similar action in another court'. And thereupon the Chief Justice propounds the theory upon which the bill of Louisiana is based, and the absence of interest in the State itself, or rather the absence of injury to the States by virtue of which the State, in its corporate capacity, files the bill in its own behalf. Thus : Its gravamen is not a special and peculiar injury such as would sustain an action shows no by a private person, but the State of Louisiana presents herself in the attitude of injury to the State parens patriae, trustee, guardian or representative of all her citizens. as such, to the citizens. She does this from the point of view that the State of Texas is intentionally but only absolutely interdicting interstate commerce as respects the State of Louisiana by means of unnecessary and unreasonable quarantine regulations. Inasmuch as the vindication of the freedom of interstate commerce is not committed to the State of Louisiana, and that State is not engaged in such commerce, the cause of action must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but... because the matters complained of affect her citizens at large. Nevertheless if the case stated is not one presenting a controversy between these States, the exercise of original jurisdiction by this court as against the State of Texas cannot be maintained.2 The Texas quaran con sidered, After having in general settled the question of jurisdiction, and having specified the conditions upon which the State might summon to the bar of the court another tine law State of the Union, the Chief Justice turns to title XCII of the Revised Statutes of the State of Texas of 1895, empowering the Governor to issue a proclamation declaring a quarantine on the coast or elsewhere within the State, whenever it may be necessary in his judgement so to do, and for such length of time as in his judgement the safety and security of the people may require '.3 The Governor was directed, by the statute, to appoint a skilled physician to be known as a health officer, who was to be familiar in practice with yellow fever, and upon the advice of such officer that the State is in danger of yellow fever or other infectious or contagious diseases, which could, in the opinion of the officer, be prevented by quarantine, the Governor should issue his proclamation establishing quarantine, directing the health officer to establish and enforce the restrictions imposed by the proclamation. Under such circumstances it is made the duty of the health officer to declare quarantine, and to maintain it until the Governor shall take such action as he may deem proper. The rules and regulations were to be prescribed by the Governor and health officer, stations were to be provided, competent physicians employed as health officers, persons and vessels to be detailed, provision made for the disinfection of vessels, their cargoes and passengers arriving at ports of Texas from infected ports and districts, and for rules and regulations regarding these matters, 'the object of such rules and regulations being to provide safety for the public health of the State without unnecessary restriction upon commerce and travel '.4 and held to be valid. After quoting the provisions of the statute, the Chief Justice says that 'It is not charged that this statute is invalid nor could it be if tested by its terms'. Meeting the contention of Louisiana that the quarantine laws of Texas, amounting to an embargo, were a regulation of interstate commerce vested in the Congress of the United States, the Chief Justice stated that 'quarantine laws belong to that class of state legislation which is valid until displaced by Congress, and that such legislation has been expressly recognized by the laws of the United States almost from the beginning of the Government '.1 In support of this, for which no authority is needed, he aptly quotes a passage from the opinion of Mr. Justice Miller in Morgan Steamship Company v. Louisiana Board of Health (118 U.S. 455), decided in 1886: The matter is one in which the rules that should govern it may in many respects be different in different localities and for that reason be better understood and more wisely established by the local authorities. The practice which should control a quarantine station on the Mississippi River, one hundred miles from the sea, may be widely and wisely different from that which is best for the harbor of New York. Mr. Chief Justice Fuller next states the final contentions of Louisiana to be considered in this connexion, that the quarantine not only operates as an embargo, and that the rules and regulations issued to render it effective are more stringent than necessary, but also that the proclamation was issued, the rules and regulations framed and enforced with the view to benefit the State of Texas, and the city of Galveston in particular, at the expense of the State of Louisiana, and especially of the city of New Orleans '.2 On this allegation the Chief Justice thus comments and thus concludes the opinion of the court, which he had the honour to deliver on this occasion: not a controversy But in order that a controversy between States, justiciable in this court, can be This is held to exist, something more must be put forward than that the citizens of one State are injured by the maladministration of the laws of another. The States can- between not make war, or enter into treaties, though they may, with the consent of Congress, two make compacts and agreements. When there is no agreement, whose breach might States. create it, a controversy between States does not arise unless the action complained of is state action, and acts of state officers in abuse or excess of their powers cannot be laid hold of as in themselves committing one State to a distinct collision with a sister State. In our judgment this bill does not set up facts which show that the State of Texas has so authorized or confirmed the alleged action of her health officer as to make it her own, or from which it necessarily follows that the two States are in controversy within the meaning of the Constitution. Finally we are unable to hold that the bill may be maintained as presenting a case of controversy 'between a State and citizens of another State.' Jurisdiction over controversies of that sort does not embrace the determination of political questions, and, where no controversy exists between States, it is not for this court to restrain the Governor of a State in the discharge of his executive functions in a matter lawfully confided to his discretion and judgment. Nor can we accept the suggestion that the bill can be maintained as against the health officer alone on the theory that his conduct is in violation or in excess of a valid law of the State, as the remedy for that would clearly lie with the State authorities, and no refusal to fulfil their duty in that regard is set up. In truth it is difficult to see how on this record there could be a controversy between the State of Louisiana and the individual defendants without involving a controversy between the States, and such a contro- and bill versy, as we have said, is not presented.3 1 State of Louisiana v. State of Texas (176 U.S. 1, 21). 2 Ibid. (176 U.S. 1, 22). Ibid. (176 U.S. 1, 22-3). Demurrer sustained dismissed. Minority It has been said that Mr. Chief Justice Fuller's opinion was the opinion of the opinions. court, but the court was not unanimous. Mr. Justice White, Mr. Chief Justice Fuller's illustrious successor, concurred in the result. Mr. Justice Harlan likewise concurred, but, differing from his learned chief, delivered a concurring opinion, as did also Mr. Justice Brown. In the course of Mr. Justice Harlan's opinion, he freely admitted the right of the State to issue police regulations. He asserted, however, in accordance with the opinions of the court in other cases, that this power was not unlimited, that an abuse of the power could be restrained in a court of justice. Taking the facts of the case as admitted, as on demurrer they must be, the State of Louisiana would, if Texas did not have the right to establish the quarantine and to issue the rules and regulations, be entitled' under the Constitution, to have the validity of such regulations tested in a judicial tribunal' and in such a case the case should proceed and be tried upon its merits. However, he was of the opinion that the State of Louisiana, ' in its sovereign or corporate capacity', could not bring a suit in the case made out in the bill, inasmuch as it did not involve the property interests of that State, that the State of Louisiana was not charged with the duty or power to regulate interstate commerce, as this power was vested in Congress, and that therefore a bill could be brought by the United States for this purpose, not by the State. So far the learned Justice concurs with his brethren. On two points he dissented, and as these are important they are laid before the reader in his own language: I must express my inability to concur in that part of the opinion of the court relating to the clause of the Constitution extending the judicial power of the United States to controversies between a State and citizens of another State'. In reference to a controversy of that sort the court says that where none exist between States, it is not for this court to restrain the Governor of a State in the discharge of his executive functions in a matter confided to his discretion and judgment. But how can the Governor of a State be said to have an executive function to disregard the Constitution of the United States? How can his State authorize him to do that? It is one thing to compel the Governor of a State, by judicial order, to take affirmative action upon a designated subject. It is quite a different thing to say that being directly charged with the execution of a statute he may not be restrained by judicial orders from taking such action as he deems proper, even if what he is doing and proposes to do is forbidden by the supreme law of the land. His official character gives him no immunity from judicial authority exerted for the protection of the constitutional rights of others against his illegal action. He cannot be invested by his State with any discretion or judgment to violate the Constitution of the United States. The court also says that it cannot accept the suggestion that the bill can be maintained as against the health officer alone on the theory that his conduct is in violation or in excess of a valid law of the State, as the remedy for that would lie with the State authorities, and no refusal to fulfil their duty in that regard is set up; and that it is difficult to see how on this record there could be a controversy between the State of Louisiana and the individual defendants without involving a controversy between the States. But the important question presented in this case-if the State of Louisiana in its sovereign capacity can sue at all in respect of the matters set out in the bill-is, whether the regulations being enforced by the health officer are in violation of the Constitution of the United States. The opinion of the court will be construed as meaning that even if Louisiana be entitled, in her sovereign capacity, to complain of those regulations, as repugnant to the Constitution of the United States, it could not proceed in this court against the defendant health officer, and that its only remedy is to appeal to the authorities of Texas, that is, to the Governor of that State, who has power to control his co-defendant, the health officer, and who has approved the regulations in question. I am not aware of any decision supporting this view. If the regulations in question are in violation of the Constitution of the United States, the defendant health officer, I submit, may, without any previous appeal to the Governor of Texas, be restrained from enforcing them, either at the suit of individuals injuriously affected by their being enforced, or at the suit of Louisiana in its corporate capacity, provided that State could sue at all in respect of such matters. Although unable to assent to the grounds upon which the court rests its opinion, I concur in the judgment dismissing the suit solely upon the ground that the State of Louisiana in its sovereign or corporate capacity cannot sue on account of the matters set out in the bill.1 It will be observed, in the opinion of the Chief Justice and of Mr. Justice Harlan, the relations of the States under the Constitution are considered without reference to the relations of nations in the society of nations. The larger question was uppermost in the mind of Mr. Justice Brown, and he thus mentions it and draws the distinction in his brief but very important concurring opinion, which may perhaps, in view of the circumstances, better be considered as a dissent : Mr. Justice Brown on the inter I am not prepared to say that if the State of Texas had placed an embargo upon the entire commerce between Louisiana and Texas, the State of Louisiana would not be sufficiently representative of the great body of her citizens to maintain this bill. In view of the solicitude which from time immemorial States have manifested national for the interest of their own citizens; of the fact that wars are frequently waged by aspects States in vindication of individual rights, of which the last war with England, the of the opium war of 1840 between Great Britain and China, and the war which is now question. being carried on in South Africa between Great Britain and the Transvaal Republic, are all notable examples; of the further fact that treaties are entered into for the protection of individual rights, that international tribunals are constantly being established for the settlement of rights of private parties, it would seem a strange anomaly if a State of this Union, which is prohibited by the Constitution from levying war upon another State, could not invoke the authority of this court by suit to raise an embargo which had been established by another State against its citizens and their property. An embargo, though not an act of war, is frequently resorted to as preliminary to a declaration of war, and may be treated under certain circumstances as a sufficient casus belli. The case made by the bill is the extreme one of a total stoppage of all commerce between the most important city in Louisiana and the entire State of Texas; and while I fully agree that resort cannot be had to this court to vindicate the rights of individual citizens, or any particular number of individuals, where a State has assumed to prohibit all kinds of commerce with the chief city of another State, I think her motive for doing so is the proper subject of judicial inquiry. It is true that individual citizens, whose rights are seriously affected by a system of non-intercourse, might, perhaps, maintain a bill of this kind; but to make the remedy effective it would be necessary to institute a multiplicity of suits, to carry on a litigation practically against a State in the courts of that State, and to assume the entire pecuniary burden of such litigation, when all the inhabitants of the complaining State are more or less interested in the result. But the objection to the present bill is that it does not allege the stoppage of all commerce between the two States, but between the city of New Orleans and the State of Texas. The controversy is not one in which the citizens of Louisiana generally can be assumed to be interested, but only the citizens of New Orleans, and it therefore seems to me that the State is not the proper party complainant.2 2 Ibid. (176 U.S. 1, 27-8). 1 State of Louisiana v. State of Texas (176 U.S. 1, 25–7). Com ments on the case. The case of South Carolina v. Georgia (93 U.S. 4), decided in 1876, foreshadowed suits of the kind of Louisiana v. Texas, alleging that the action of the defendant State diverted the waters of a stream and obstructed navigation in which the plaintiff State had an equal right with the defendant. The offence charged was what would be called a nuisance in private law. That jurisdiction was not assumed in that case is of no importance, because, admitting jurisdiction, the court found that the facts set up did not constitute the nuisance complained of. In the same way, the refusal to entertain the bill in Louisiana v. Texas and to proceed to a judgement of the case upon its merits is of no importance, except as to the facts in the controversy. The important point is that the court stood ready to accept controversies of a justiciable nature, other than boundary disputes, whenever they should be presented in proper form. The question of principle was thus decided. The court was open and an invitation extended, as it were, to the States to invoke its aid in the settlement of their controversies. That a State may not, on behalf of its citizen, sue a State of the Union is the express holding of the Supreme Court, laid down in the case of New Hampshire v. Louisiana (108 U.S. 76), and the doctrine in favour of Louisiana in this case was affirmed against its contention in Louisiana v. Texas. This may seem to the international jurist to be a sacrifice of the spirit to the letter of the law. The court is, however, to be commended, rather than criticized, for so doing, inasmuch as it showed itself the safe depository of a limited power; and that, unlike other courts in this respect, it would consciously confine its jurisdiction within the limits of the power granted it, without impinging upon the sovereignty of the States of the Union, and without enlarging, or seeming to enlarge, the general consent which the States themselves had given to be sued. The practice of nations is otherwise, inasmuch as the nation appears for its citizen or subject, and by a special convention a State consents to be sued. It is not a general, it is therefore a particular consent, and, because of this fact, the commission or tribunal created is a special commission or tribunal, vested with jurisdiction conferred by the convention. A general consent in a general convention to be sued in permanent court should be strictly construed, as otherwise a court of limited would become one of general jurisdiction and the agent assume the rôle of the master. The experience of the Supreme Court in this respect shows that a permanent tribunal may safely be entrusted with judicial power to interpret a general consent, without enlarging or seeking to enlarge the extent of the grant. 46. State of Tennessee v. State of Virginia. It will be recalled that, in the second of the cases of Virginia v. Tennessee (158 U.S. 267), decided in 1895, the Supreme Court refused a motion to have the boundary line between the States run and re-marked, as determined by compact of the States in 1803, inasmuch as the court, in the first of the cases, Virginia v. Tennessee (148 U.S. 503), had only decreed the re-marking of the boundary line, upon a showing made during that term of the court that marks for the identification of that line had |