agreed to by the parties, that the entire line be run and re-marked, was rejected by the court, not merely because it was inconsistent with the decree, which could, at the request of the parties, be modified, but also because it was made at a subsequent term, when the court held that it had lost jurisdiction of the case. The right was nevertheless reserved to the parties to file an original bill to carry their agreement into effect should they desire to do so. This they did in the case of Tennessee v. Virginia (177 U.S. 501), decided in 1900, the State of Tennessee appearing this time as the complainant, by its Attorney-General, G. W. Pickle, with, however, the full knowledge and consent of the State of Virginia. The State of Tennessee filed its bill, setting forth the proceedings had in the two previous cases and their unsatisfactory ending, and asked that the State of Virginia be made a party defendant, that it be required to answer the bill, and that upon hearing a decree be entered ordering the re-running of the boundary line according to the compact of 1803, confirmed by the first decision of the Supreme Court in this controversy, Virginia v. Tennessee (148 U.S. 503). On the same 16th of April, 1900, the State of Virginia appeared by its Attorney-General, Andrew J. Montague, later its Governor and Representative in Congress, and filed an answer, fully accepting the decree of the court confirming the boundary between the States in accordance with the compact of 1803, and, concurring in the prayer of Tennessee, agreed that the line should be ascertained, re-located and re-marked by suitable and enduring monuments by commissioners appointed by the court, on the condition that they should not be residents of either of the contending States. On the following day the parties entered into the following stipulation :

Bill by to settle boun

consent

daries as

drawn

(vide p.

302,

ante).

Terms of

ment.

It is agreed by the parties to this cause as a basis for decree : I. That the true boundary line between the States of Virginia and Tennessee is the agreethe compromise line established by proceedings had by the two States in 1801-1803, which was actually run and located at that time and marked with five chops in the shape of a diamond, and commonly called the diamond line, and running from White Top Mountain to Cumberland Gap.

2. That said line has in some parts of it, if not along its entire course, become so far obscured and uncertain as to embarrass the administration of the state and Federal laws and produce confusion as to rights of property and conflict and litigation between the citizens of the two States and to necessitate its ascertainment, re-running and re-marking.

3. That a decree be passed at once by this court providing for the ascertainment, re-tracing and re-marking of said line.

4. That the names W. C. Hodgkins, A. H. Buchanan and J. B. Baylor are suggested and agreed upon as satisfactory commissioners to be appointed by this court to ascertain, re-trace and re-mark said line.

5. That the record and opinion of the supreme court of Virginia in the case of Miller v. Wills shall not be considered as any part of the pleadings in this cause, and need not therefore be printed.

6. That whatever costs may be required to be borne by the said States shall be equally borne and divided between them.1

as asked.

Thereupon Mr. Chief Justice Fuller, on behalf of the court, accepted the state- Decree granted ments of the parties, that the line had become indistinct and that the boundary should be re-marked, directed that it should be done by the three commissioners recommended by the States, and then concluded as follows:

And it is further ordered that before entering upon the discharge of their duties, 1 State of Tennessee v. State of Virginia (177 U.S. 501, 502).

A dispute about the

each of the said commissioners shall be duly sworn to perform faithfully, impartially, without prejudice or bias, the duties herein imposed, said oath to be taken before the clerk of this court, or before either of the clerks of the Circuit Court of the United States for the States of Massachusetts, Virginia or Tennessee, and returned with their report; that said commissioners may arrange for their organization, their meetings, and the particular manner of the performance of their duties; and are authorized to adopt all ordinary and legitimate methods for the ascertainment of the true location of said boundary line, including the taking of evidence; but in the event evidence is taken, the parties shall be notified and permitted to be present and examine and cross-examine the witnesses, and the rules of law as to admissibility and competency shall be observed; and all evidence taken by the commissioners, and all exceptions thereto, and action thereon, shall be preserved and certified, and returned with their report.

And when the true location of said boundary line is ascertained, said commissioners shall cause such marks and monuments of a durable nature to be so placed on and along said line as to perpetuate it, and enable the citizens of each State, and others, to find it with reasonable diligence.

It is further ordered that the clerk of this court at once forward to the chief magistrate of each of said States, and to each of the commissioners designated by this decree, a copy of the decree duly authenticated, and that the commissioners proceed with all convenient speed to discharge their duty in ascertaining, re-tracing, re-marking and reëstablishing said line, as herein directed, and make their report thereof and of their proceedings in the premises to this court, on or before the first day of the next term thereof, together with a complete bill of costs and charges annexed.

And it is further ordered that, should vacancies occur in said board of commissioners, while the court is not in session, the Chief Justice is hereby authorized and empowered to appoint other commissioners, to supply the same, and he is authorized to act on such information in the premises as may be satisfactory to himself.

It is further ordered that all costs of this proceeding, including remuneration not exceeding ten dollars per day for each commissioner, and the other costs incident to the ascertaining, re-tracing, re-marking and reëstablishing said line, shall be paid by the States of Tennessee and Virginia equally.1

47. State of Missouri v. State of Illinois.
(180 U.S. 208) 1901.

The invitation which the Supreme Court in the case of Louisiana v. Texas (176 disposal U.S. 1), decided in 1900, held out to the States to present all of their controversies of sewage. of a justiciable nature, not only their boundary disputes, was first accepted by Missouri, which, in 1900, charged the State of Illinois and the Sanitary District of Chicago with the commission of an intolerable nuisance by emptying the sewage of that city into the Mississippi River, thus polluting the river as it flowed past the State of Missouri, to the great detriment of the people of that State and to the State itself.

To the bill containing these charges invoking the jurisdiction of the court, asking a writ of subpoena of the United States of America against the State of Illinois and a prayer for an injunction to restrain the commission of the acts whereof complaint

1 State of Tennessee v. State of Virginia (177 U.S. 501, 503-4). For the final phase of this case

was made, the State of Illinois demurred. The facts of the case as thus made out by the pleadings and demurred to on the ground of jurisdiction, was argued by counsel on November 12, 1900, and decided January 28, 1901, overruling the demurrers and allowing defendant to answer complainant's bill.

discharge

Missis

This is indeed a very short and summary statement of a very long and complicated case, but it is the case as made out by the parties. It is, however, advisable, Complaint for the sake of clearness, to enter somewhat into the details of the controversy. that IlliCounsel for Missouri stated in apt terms that the Mississippi River had, by act of nois proCongress, been made the boundary between the two States; that each had an equal posed to use of its waters and exercised jurisdiction concurrently over them; that the Illinois sewage River empties into the Mississippi at a point above the city of St. Louis on the Illinois into the side of the river; that its waters commingled with those of the Mississippi and flowed sippi. past the cities and towns of the complainant State; that many thousands of its people were compelled to and do rely upon the waters of said river, in their regular, natural and accustomed flow, for their daily necessary supply of water for drinking and all other domestic and agricultural and manufacturing purposes', and that, therefore, the river, in its ordinary course and natural flow, was of great value to the State of Missouri. The hand that penned this bill had evidently profited by the admonitions of the court in the case of New Hampshire v. Louisiana (108 U.S. 76), South Carolina v. Georgia (93 U.S. 4), and Louisiana v. Texas (176 U.S. 1).

The bill then stated the enactment of a law by the State of Illinois, known as the Sanitary District act, together with an act for the improvement of the Illinois and Des Plaines Rivers; that pursuant to the first act the Sanitary District was incorporated, and in pursuance of the second act the rivers were improved so as to receive the sewage and drainage of the city of Chicago, which previously had been discharged into Lake Michigan, and to pass such sewage through their waters into the Mississippi at a point approximately forty-three miles to the north of the city of St. Louis. The bill further alleged that the sewage discharged amounted daily to about 1,500 tons, and that, if this immense mass of undefecated matter were drained into the waters of the Illinois and by them carried into the Mississippi, its waters would be polluted and rendered unfit for the purposes for which they previously had been used; that the moneys expended in taking the waters from the river would be lost and that the people of the State would suffer greatly by this direct and continuing nuisance on the part of the State of Illinois.

The State of Missouri therefore appealed to the Supreme Court, in that it had no other remedy against the acts complained of, and invoked its equity jurisdiction as the remedy at law in damages would be inadequate, in that the complainant wished the State of Illinois to be restrained by a temporary injunction before the hearing, and by a permanent injunction thereafter from committing the acts complained of.

The mind that conceived the demurrers filed in this case was deeply versed in the decisions of the Supreme Court of the United States, and the hand that drafted them aptly incorporated the expressions of opinion that fell from the judges in the course of the cases, as appears from the seven causes of demurrer, thus assigned:

Demurrer

First. That this court has no jurisdiction of either the parties to, or of the subject- of Illinois matter of, this suit, because it appears upon the face of said bill of complaint that the alleging

that there

is no con. troversy between the States,

and that

terests

are

matters complained of, as set forth therein, do not constitute, within the meaning of the Constitution of the United States, any controversy between the State of Missouri and the State of Illinois, or any of its citizens.

Second. That the matters alleged and set forth in said bill of complaint show that the only issues presented therein arise, if at all, between the State of Illinois and a public corporation created under the laws of said State, and certain cities and towns, in their corporate capacity as such, in the State of Missouri, and certain persons in said State of Missouri, residing on or near the banks of the Mississippi River, and which matters so stated in said bill of complaint, if true, do not concern the State of Missouri as a corporate body or State.

Third. That said bill of complaint shows upon its face that this suit is in fact only indi- for and on behalf of certain cities and towns in said State of Missouri, situated on vidual in- the banks of the Mississippi River, and certain persons who reside in said State on or near the banks of said river; and that, although the said suit is attempted to be affected. prosecuted for and in the name of the State of Missouri, said State is, in effect, loaning its name to said cities and towns and to said individuals, and is only a nominal party to said suit, and that the real parties in interest are the said cities and towns in their corporate capacity as such, and said private persons or citizens of said State.

Fourth. That it appears upon the face of said bill of complaint that the said State of Missouri, in her right of sovereignty, is seeking to maintain this suit for the redress of the supposed wrongs of certain cities and towns in said State, in their corporate capacity as such, and of certain private citizens of said State, while under the Constitution of the United States and the laws enacted thereunder, the said State possesses no such sovereignty as empowers it to bring an original suit in this court for such purpose.

Fifth. That it appears upon the face of said bill of complaint that no property rights of the State of Missouri are in any manner affected by the matters alleged in said bill of complaint; nor is there any such property right involved in this suit as would give this court original jurisdiction of this cause.

Sixth. That in order to authorize this court to maintain original jurisdiction of this suit as against the State of Illinois, or against any citizen of said State, it must appear that the controversy set forth in the bill of complaint and to be determined by this court, is a controversy arising directly between the State of Missouri and State of Illinois, or some of its citizens, and not a controversy in vindication of the alleged grievances of certain cities and towns in said State or of particular individuals residing therein.

Seventh. That said bill of complaint is in other respects uncertain, informal and insufficient, and that it does not state facts sufficient to entitle the said State of Missouri to the equitable relief prayed for in said bill of complaint.

Wherefore, for want of a sufficient bill of complaint in this behalf, the said defendants pray judgment; and that the said State of Missouri may be barred from having or maintaining the aforesaid action against said defendants, and that this court will not take further cognizance of this cause, and that the said defendants be hence dismissed with their costs.1

The pleadings have been somewhat fully stated, more fully, indeed, than necessary to the comprehension of the case, inasmuch as this suit may not improperly be regarded as a request of counsel for Missouri for a reconsideration of the opinion of the court in the case of Louisiana v. Texas (176 U.S. 1) and the substitution of Mr. Justice Brown's opinion for that of Mr. Chief Justice Fuller; and it may be noted in this connexion, and at the very beginning of the case, that from the opinion of the court, over-ruling the demurrer, the Chief Justice dissented. Mr. Justice Shiras, who delivered the opinion of the majority, for the Chief Justice and Justices Harlan

and White dissented, evidently felt this; for he, like Chief Justice Fuller in the Louisiana case, made a very careful and a much more thorough investigation than his chief of the origin, the nature and the extent of the jurisdiction of the Supreme Court and of its exercise in previous cases.

ment of

Indeed, Mr. Justice Shiras, who delivered the opinion of the court and of the Judgemajority of his brethren, laid bare the foundations of the court, disclosed its purposes, the Court. and established its jurisdiction in the light of its history and adjudged precedent. At the same time he stated the case made by the pleadings upon which the court would have to pass :

The questions thus presented are two: first, whether the allegations of the bill disclose the case of a controversy between the State of Missouri and the State of Illinois and a citizen thereof, within the meaning of the Constitution and statutes of the United States, which create and define the original jurisdiction of this court; and, second, whether, if it be held that the allegations of the bill do present such a controversy, they are sufficient to entitle the State of Missouri to the equitable relief prayed for.

The question whether the acts of one State in seeking to promote the health and prosperity of its inhabitants by a system of public works, which endangers the health and prosperity of the inhabitants of another and adjacent State, would create a sufficient basis for a controversy, in the sense of the Constitution, would be readily answered in the affirmative if regard were to be had only to the language of that instrument.

stitution.

The judicial power of the United States shall be vested in one Supreme Court, Text of and in such inferior courts as the Congress may from time to time ordain and estab- the Conlish . . . 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 controversies between two or more States, between a State and citizens of another State . . . In all cases . . . in which a State shall be a party, the Supreme Court shall have original jurisdiction.' Constitution, Article 3.

As there is no definition or description contained in the Constitution of the kind and nature of the controversies that should or might arise under these provisions, it might be supposed that, in all cases wherein one State should institute legal proceedings against another, the original jurisdiction of this court would attach.

But in this, as in other instances, when called upon to construe and apply a provision of the Constitution of the United States, we must look not merely to its language but to its historical origin, and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration.1

The learned Justice thereupon examines the articles of Confederation, quoting in full the 9th of the Articles, providing for the appointment of special commissions to determine all disputes and differences now subsisting or that may hereafter arise, between two or more States, concerning boundary jurisdiction or any other cause whatever'. He next gives, in very considerable detail, the proceedings of the States in Philadelphia, whereby a permanent tribunal instead of a series of temporary ones was created and invested with the jurisdiction heretofore exercised by the Congress, in order to determine the disputes and differences which might arise between the States, even although the jurisdiction of this permanent tribunal might not include all disputes and differences concerning boundary jurisdiction or any other cause whatever'. These proceedings culminated in the third article of the Constitution 1 State of Missouri v. State of Illinois (180 U.S. 208, 218–19).