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kind. The Supreme Court of the United States is mindful of the fact that, in the exercise of original as distinct from appellate jurisdiction, it is a tribunal of limited powers, and it appears to be on its guard not to step beyond the grant of judicial power, lest by so doing it should not only commit an injustice but jeopardize the great experiment.

In the course of this narrative this question has been dwelt upon, and occasion is taken, because of the case at hand, in which that question was raised, to invite particular attention to it. It will perhaps be recalled that, in the case of United States v. North Carolina (136 U.S. 211), decided in 1890, involving a suit of the United States against one of the States of the Union, the question was not mentioned; yet Mr. Justice Harlan stated, in United States v. Texas (143 U.S. 621), decided in 1892, -a case involving the same principle and in which it was raised and debated by counsel that the justices had considered among themselves in the former case, whether the court had jurisdiction before entertaining the suit.

In the case of Minnesota v. Hitchcock (185 U.S. 373, 387), to which Mr. Chief Justice Fuller referred, and from which he quoted a portion of the opinion of the court, the question of jurisdiction was discussed by Mr. Justice Brewer on behalf of the court in the opening words of his opinion, although the question was not raised by counsel. Indeed, it was perhaps unnecessary to discuss it, inasmuch as Congress had authorized by special statute a State to bring suit against the Secretary of the Interior, representing the United States, to determine title to school lands within an Indian reservation or a cession of lands within the State to which an Indian tribe laid claim. Thus, Mr. Justice Brewer said:

A preliminary question is one of jurisdiction. It is true counsel for defendants did not raise the question, and evidently both parties desire that the court should ignore it and dispose of the case on the merits. But the silence of counsel does not waive the question, nor would the express consent of the parties give to this court a jurisdiction which was not warranted by the Constitution and laws. It is the duty of every court of its own motion to inquire into the matter irrespective of the wishes of the parties, and be careful that it exercises no powers save those conferred by law. Consent may waive an objection so far as respects the person, but it cannot invest a court with a jurisdiction which it does not by law possess over the subject-matter.

After quoting the clause of the Constitution extending the judicial power to controversies to which the United States shall be a Party', the learned Justice, notwithstanding the fact that, in the case before him, the United States was not a party to the record, says that it was one to which the United States could be regarded as a party, and, such being the case, that it is one to which the judicial power of the United States extends. He then says:

It is, of course, under that clause a matter of indifference whether the United States is a party plaintiff or defendant. It could not fairly be adjudged that the judicial power of the United States extends to those cases in which the United States is a party plaintiff and does not extend to those cases in which it is a party defendant.1 That is to say, in his opinion, which was in this instance the opinion of the court, the United States could be plaintiff or defendant in a suit provided the subject-matter were justiciable; but that does not, of course, settle the question whether the United States could be made a party'defendant. This phase of the question the learned

Justice considers and covers in telling and happy phrase, within the compass of a single paragraph, saying:

While the United States as a government may not be sued without its consent, yet with its consent it may be sued, and the judicial power of the United States extends to such a controversy. Indeed, the whole jurisdiction of the Court of Claims rests upon this proposition.1

But the Constitution decides the whole matter for the States of the Union, because they made the Constitution, they created the court, and they consented to be sued by Section II, Article 3 thereof. Their consent was free and apparently unlimited, except that the subject-matter in dispute should be justiciable. They did not decide the question as far as the agent of their hands was concerned. It probably did not occur to them, else they would have expressed an opinion one way or another. They took, however, the first step by deciding that the United States could be a party to a suit by extending the judicial power to controversies to which the United States shall be a party, and by this general expression the United States could be either plaintiff or defendant. But the Constitution does not, in express terms, extend the judicial power to controversies between the United States and a State, although it does to those between two or more States. Hence, the States are held to have given both a general and special consent to be sued in the Supreme Court in controversies between them, whereas, in the case of the United States, a general consent is lacking and special consent must be granted by statute, which, however, might, although it has not yet done so, be in general terms.

To revert to the case of Kansas v. United States, and to quote the language of Mr. Chief Justice Fuller:

We are not dealing here with the merits of the controversy raised by the bill, but The solely with the question of the original jurisdiction of this court. And as the United United States has not consented to be sued, it results on this ground also the bill must be States dismissed.2

61. State of Kansas v. State of Colorado.
(206 U.S. 46) 1907.

can only be sued with its own con

sent.

In the first phase of Kansas v. Colorado (185 U.S. 125), there were but two parties litigant claiming to be sovereign in respect of the powers not specifically granted to the Union of the States, of which they themselves did not expressly or impliedly renounce the exercise. In the second case, entitled Kansas v. Colorado, defendants, and the United States, intervenor (206 U.S. 46), a newcomer appears in Interthe rôle of plaintiff as well as intervenor, claiming in its own behalf an interest in of the the waters of the river, superior to that of the States in litigation, and threatening United. to obscure the States within the shadow of its sovereignty.

With the facts the reader is familiar. In simplest form, the State of Colorado, within whose territory the Arkansas River has its source, and through whose jurisdiction it flows for a distance of 280 miles, claimed the right to use its waters for the purposes of irrigation, and to convey to corporations and individuals the right to withdraw the water and to store it in reservoirs for such purpose, even although, by so doing, the waters of the river should be diminished and its flow interrupted. 1 State of Minnesota v. Hitchcock (185 U.S. 373, 386).

2 State of Kansas v. United States (204 U.S. 331, 343-4).

vention

States.

The

United States claims a

the waters for the general benefit.

The State of Kansas, through whose jurisdiction the river flows for some 300 miles after having left the State of its origin, claimed that it had a right to the waters of the river in their ordinary flow, leaving to the inhabitants of Colorado the right to use its waters but not appreciably to lessen their volume. It complained that the State of Colorado, after diverting the waters in large quantities for purposes of irrigation, had not only interfered with the flow of the stream, but had so lessened the volume of water which would otherwise have flowed through the channel as seriously to diminish the water which the lands bordering upon and within the reach of the river needed, and whose productivity depended in large part upon what was called the under-flow and the over-flow of the stream.

The court was unwilling to decide the case upon the demurrer interposed by Colorado, which, as frequently stated in these pages, admits the truth of the facts properly pleaded, while maintaining that they do not constitute a cause of action. It therefore overruled the demurrer, with leave to the State of Colorado to answer the bill of the complainant and to set forth the facts of its case, a privilege of which the State of Colorado availed itself. In the preliminary portion of the opinion of the court, delivered by Mr. Justice Brewer, which is used by the reporter as the statement of the case, it is said:

On August 13, 1903, Kansas filed an amended bill, naming as defendants Colorado and quite a number of corporations, who were charged to be engaged in depleting the flow of water in the Arkansas River. Colorado and several of the corporations answered. For reasons which will be apparent from the opinion the defenses of these corporations will not be considered apart from those of Colorado. On March 21, 1904, the United States, upon leave, filed its petition of intervention. The issue between these several parties having been perfected by replications, a commissioner was appointed to take evidence, and after that had been taken and abstracts prepared, counsel for the respective parties were heard in argument, and upon the pleadings and testimony the case was submitted.1

With the contentions of the newcomer the reader, however, is not familiar, and they will be stated before passing to the opinion of the court. Counsel for the United States stated and maintained in the petition on behalf of the general Government that the lands located within the watershed of the river are arid lands; that within para- this watershed there are one million acres of public lands, uninhabitable and unsaleable mount right to because lacking water, and that' said lands can only be made inhabitable, productive, deal with and saleable by impounding and storing flood and other waters in said watershed to the extent that said waters may be used to reclaim said land'; that the common law doctrine of riparian rights is not applicable to conditions in the arid region and has been abolished by statute, usage, and custom; that there has been established in its stead in the said region a doctrine to the effect that the waters of natural streams and of flood and other waters may be impounded, appropriated, diverted, and used for the purpose of reclaiming and irrigating the arid lands therein, and that the prior appropriation of such waters for such purpose gives a prior and superior right to the water of the stream; that, acting upon this doctrine, the United States had appropriated and used.waters of streams to reclaim, make productive and profitable about ten million acres of land, and that the inhabitants of Colorado and Kansas, within the watershed of the Arkansas River, had so used its waters; that the Congress of

the United States passed the so-called reclamation act of June 17, 1902, in order that, by the diversion of water for irrigation purposes, and at the expense of many millions of dollars, millions of acres of land, otherwise remaining arid, would be made productive and profitable, and therefore habitable.1 Counsel for the United States earnestly contended for the superior, and indeed paramount, right of their client, advancing, in order to do this, the possession of a power in the General Government to act for the benefit of the whole in the absence of a specific grant of a power on the part of the States to represent them and to take charge of their common interests.

The importance of the case transcends the question of water, and for this reason the argument of counsel will be dwelt upon at greater length than would otherwise be the case, although it may be premised in this place that Mr. Justice Brewer, speaking for himself and for the court, smote counsel hip and thigh and rejected the doctrine for which they contended, as having no place in, and as inconsistent with, the theory of the more perfect Union of the States. After calling attention to the dispute between the two States, as to the right to divert the waters claimed by Colorado and to their equitable use as contended by Kansas, counsel insisted that the power to determine this controversy was vested in the United States. This is true if the reference is to the judicial power of the United States, which was granted to the United States and extended to controversies between them. But counsel had in mind not a direct grant of power of this kind, nor indeed a direct grant of a general kind, but a power to be implied from the position of the general Government, which power was, in their opinion, inherent in sovereignty. This is no doubt true in an amalgamation of provinces; it does not follow that it is true in a government of limited powers, created by States as their agent and reserving to themselves all powers not specifically or impliedly granted to their agent, or otherwise renounced by them in the common interest. But assuming,' say Counsel,' for the purpose of argument, without at all conceding, that this case does not clearly fall within the enumerated power and the implied powers necessary to effectuate it, there is the doctrine of The sovereign and inherent power.' 2

doctrine

of sove

inherent power

The line of demarcation between the direct and implied grant and the powers reign and reserved and not renounced may be difficult to draw, but, as Chief Justice Marshall said in the leading case of McCulloch v. Maryland (4 Wheaton, 316, 405), the question alleged. respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.' Where, then, is the line to be drawn? Counsel for the United States said:

Where state antagonism to another State or the Nation begins, the state sovereignty ends, and that is at just the point where the matters of exclusive regulation within the state boundaries, the things done by or in the State, tend to pass over into the other limited sovereignties, and then the exclusive power, the reserved power, falls, or rather stops. The problem, then, does not involve the taking away prerogatives from a State wholly operating within its own confines, but only involves the taking up these prerogatives at the state lines and supplementing them by national coöperation or control so as to amalgamate or reconcile the separate forces. There is a gap and vacancy of sovereignty somewhere if the sovereign and inherent power of one State is restricted to its own territory (which of course it is), and there is no sovereign and inherent power in the Nation to regulate where the powers of two or 1 State of Kansas v. State of Colorado (206 U.S. 46, 55-7). 2 Ibid. (206 U.S. 46, 66).. Ff

1569.24

Argu

ment

from the

power to regu

late com

merce.

more States overlap, and so clash, and injure each other and the aggregate interests. This entails no loss of powers reserved to the States; if it does we are in a vise-both the States and the Nation powerless at the very point where competent power is most essential.1

This argument is taking, but not convincing, for the Supreme Court of the United States was the agency in which controversies between the States were to be adjusted, and an act beginning in a State, but extending into another and injuriously affecting it, was to be prevented. The jurisdiction of such a case was expressly recognized by the Supreme Court in the leading case of Missouri v. Illinois (180 U.S. 208), although the facts in this case did not justify the exercise of its jurisdiction in the form of an injunction (200 U.S. 496).

In a previous portion of the argument of counsel, the power to regulate commerce had been referred to as intercourse and as intercourse in the broadest sense; because of this power the general Government was to administer and to control the waters of streams and rivers flowing through more than one State. 'Would Federal administration and control of irrigation on interstate streams,' it was asked, 'subject to regard for the different State laws as directed by Congress, and always subject to the power and jurisdiction of this court to pass upon interstate controversies, encroach in any respect upon the powers reserved to the States or the people? To this question, put by counsel in its least objectionable form, counsel themselves answered:

The powers reserved to the States are powers confined wholly to their respective borders. The powers reserved to the people relate to possible encroachments on their personal and individual rights of life, liberty, and the pursuit of happiness. . . . The function and power of the Government, on the legislative and executive side, in reference to the distribution of the flow of the Arkansas River, are involved in this

case.

And the conclusion from these premises was logical and inevitable, if the premises themselves be admitted, and the decree should, in accordance with their premises, as stated by counsel, ' embrace in terms or in effect a recognition of the national law and of the Government's right to direct the matter of water distribution on this nonnavigable interstate stream.' 2

Counsel for the Government were aware that the decree for which they asked must rest on a great and a pervading principle, which they had no difficulty in producing and which they stated as follows:

The great principle here and whenever it is a question of conflict between States or between a State and the Nation is that the Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. The powers of Congress are not given by the people of a single State; they are given by the people of the United States to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. McCulloch v. Maryland, 4 Wheat. 426, 429.3

Like most general statements, this is appealing; to the person not familiar with this Union of States it may seem decisive; to the superficial the citation of an 1 State of Kansas v. State of Colorado (206 U.S. 46, 68).

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