Chapter LV: Section 2: The judicial Power shall extend to all Cases, in Law (2)

The earlier hospitality of the federal courts to cases involving federal questions is also manifested in suits by corporations chartered by Congress. Although in Bank of United States _v._ Deveaux[299] the Court held that the first Bank of the United States could not sue in the federal courts merely because it was incorporated by an act of Congress, the act incorporating the second bank authorized such suits and this authorization was not only sustained in Osborn _v._ Bank of United States,[300] but an act of incorporation was declared to be a law of the United States for purposes of jurisdiction in cases involving federal questions. Consequently, the door was opened to other federally chartered corporations to go into the federal courts after the act of 1875 vested original jurisdiction generally in the lower courts of such questions. Corporations, chartered by Congress, particularly railroads, quickly availed themselves of this opportunity, and succeeded in the Pacific Railroad Removal Cases[301] in removing suits from the State to the federal courts in cases involving no federal question solely on the basis of federal incorporation. The result of this and similar cases was Congressional legislation depriving national banks of the right to sue in the federal courts solely on the basis of federal incorporation in 1882,[302] depriving railroads holding federal charters of this right in 1915,[303] and finally in 1925 removing from federal jurisdiction involving federal questions all suits brought by federally chartered corporations, solely on the basis of federal incorporation, except where the United States holds half of the stock.[304]

REMOVAL FROM STATE COURTS OF SUITS AGAINST FEDERAL OFFICIALS

Of greater significance and of immediate importance to the maintenance of national supremacy are those cases involving State prosecution of federal officials for acts committed under the color of federal authority. As early as 1815 Congress provided temporarily for the removal of prosecutions against customs officials for acts done or omitted as an officer or under color of an act of Congress, except for offenses involving corporal punishment.[305] In 1833, in partial answer to South Carolina's Nullification Proclamation, Congress enacted the so-called Force Act providing for removal from State courts of all prosecutions against any officer of the United States or under color thereof.[306] As a part of the Civil War legislation and limited to the war period, an act in 1863 provided for removal from State courts of cases brought against federal officials for acts committed during the war and justified under the authority of Congress and the President.[307] The act of 1833, with amendments, has been kept in force. Since 1948 the United States Code has provided for the removal to a federal district court of civil actions or criminal prosecutions in State courts against "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."[308]

Tennessee _v._ Davis

The validity of the act of 1833 as it was carried over into the Revised Statutes, Sec. 643, was contested in Tennessee _v._ Davis,[309] which involved the attempt of a State to prosecute a deputy collector of internal revenue who had killed a man while seeking to seize an illicit distilling apparatus. In an opinion in the tradition of Martin _v._ Hunter's Lessee[310] and Cohens _v._ Virginia,[311] Justice Strong emphasized the power of the National Government to protect itself in the exercise of its constitutional powers, the inability of a State to exclude it from the exercise of any authority conferred by the Constitution, and the comprehensive nature of the term "cases in law and equity arising under the Constitution, the laws of the United States, and treaties * * *" which was held to embrace criminal prosecutions as well as civil actions. Then speaking of a case involving federal questions he said: "It is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted."[312]

SUPREME COURT REVIEW OF STATE COURT DECISIONS

In addition to the constitutional issues presented earlier by Sec. 25 of the act of 1789, which was superseded in 1934 when the "Writ of error" was replaced by "Appeal," issues have continued to arise concerning its application which go directly to the nature and extent of the Supreme Court's appellate jurisdiction. These have to do with such matters as the existence of a federal question, exhaustion of remedies in State courts, and review of findings of fact by State courts. Whether a federal question has been adequately presented to and decided by a State court has been held to be in itself a federal question, to be decided by the Supreme Court on appeal.[313] Likewise a contention that a decision of a State court disregarded decrees of a United States Court has been held to bring a case within the Court's jurisdiction;[314] also a decision by a State court which was adverse to an asserted federal right although, as the record of the case showed, it might have been based upon an independent and adequate nonfederal ground.[315] This latter ruling, however, was qualified during the same term of Court in a case which held that it is essential to the jurisdiction of the Supreme Court, in reviewing a decision of a State court that it must appear affirmatively from the record, not only that a federal question was presented for determination, but that its decision was necessary to the determination of the cause; that the federal question was actually decided, or that the judgment could not have been given without deciding it.[316]

These rules all flow from the broader principle that if the laws and Constitution of the United States are to be observed, the Supreme Court cannot accept as final the decision of a State court on matters alleged to give rise to an asserted federal right.[317] Consequently, the Supreme Court will review the findings of fact by a State court where a federal right has been denied by a finding shown by the record to be without evidence to support it, and where a conclusion of law as to a federal right and findings of facts are so intermingled as to make it necessary to analyze the facts in order to pass upon the federal question.[318] It should be noted, too, that barring exceptional circumstances such as those in Gilchrist _v._ Interborough Rapid Transit Co.,[319] which involved intricate contracts between the City of New York and the company, the meaning of which had not been determined by the State courts, or explicit statutory provisions as in 28 U.S.C.A. Sec. 1331-1332, 1345, 1359, resort to a federal court may precede the exhaustion of remedies of State courts.[320]

Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held that Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.[321] Many years later, in 1884, the Supreme Court held that consuls could be sued in the federal courts,[322] and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme Court has been invested with original jurisdiction.[323] Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in State courts against consular officials. The leading case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony. Justice Holmes, speaking for the Court, said: "The words quoted from the Constitution do not of themselves and without more exclude the jurisdiction of the State. * * * It has been understood that, 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.' * * * In the absence of any prohibition in the Constitution or laws of the United States it is for the State to decide how far it will go."

WHEN "AMBASSADORS" ETC., ARE "AFFECTED"

A number of incidental questions arise in connection with the phrase "affecting ambassadors and consuls." Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States _v._ Ortega,[325] the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit "affecting" the minister, but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an ambassador, etc. In Ex parte Baiz,[326] the Court refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and laid down the rule that it has the right to accept a certificate from the Department of State on such a question. A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.[327] However, matters of especial delicacy such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature to which a State is a party,[328] Congress has made the original jurisdiction of the Supreme Court exclusive of that of other courts. By its compliance with the Congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose. Likewise, as in the Popovici case, it has implied that Congress, if it chose, could make the court's jurisdiction of consular officials exclusive of State Courts.

Cases of Admiralty and Maritime Jurisdiction

ORIGIN AND CHARACTERISTICS

The admiralty and maritime jurisdiction of the federal courts had its origin in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.[329] Since one of the objectives of the Philadelphia Convention was the promotion of commerce and the removal of obstacles to it, it was only logical that the Constitution should deprive the States of all admiralty jurisdiction and vest it exclusively in the federal courts.

CONGRESSIONAL INTERPRETATION OF THE ADMIRALTY CLAUSE

The Constitution uses the terms "admiralty and maritime jurisdiction" without defining them. Though closely related the words are not synonyms. In England the word "maritime" referred to the cases arising upon the high seas, whereas "admiralty" meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. For this and other reasons, a much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.[330] At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance "of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *"[331] This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law "as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe."[332]

JUDICIAL APPROVAL OF CONGRESSIONAL INTERPRETATION

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,[333] it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that, "whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed."[334] The Court thereupon proceeded to hold that admiralty had jurisdiction _in personam_ as well as _in rem_, over controversies arising out of contracts of affreightment between New York and Providence.

TWO TYPES OF CASES

Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters; and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases, and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act; while in the second category subject matter is the primary determinative factor.[335] Specifically, contract cases include suits by seamen for wages,[336] cases arising out of marine insurance policies,[337] actions for towage[338] or pilotage[339] charges, actions on bottomry or respondentia bonds,[340] actions for repairs on a vessel already used in navigation,[341] contracts of affreightment,[342] compensation for temporary wharfage,[343] agreements of consortship between the masters of two vessels engaged in wrecking,[344] and surveys of damaged vessels.[345] In the words of the Court in Ex parte Easton,[346] admiralty jurisdiction "extends to all contracts, claims and services essentially maritime."

MARITIME TORTS

Jurisdiction of maritime torts depends exclusively upon the commission of the wrongful act upon navigable waters[347] regardless of the voyage and the destination of the vessel.[348] By statutory elaboration, as well as judicial decision, maritime torts include injuries to persons,[349] damages to property arising out of collisions or other negligent acts,[350] and violent dispossession of property.[351] But until Congress makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, a State statute providing "that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission," applies, and, as thus applied, it constitutes no encroachment upon the commerce power of Congress.[352]

PRIZE CASES, FORFEITURES, ETC.

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.[353] Also, in contrast to other phases of admiralty jurisdiction prize law as applied by the British courts continued to provide the basis of American law so far as practicable,[354] and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction comprises the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,[355] infraction of revenue laws,[356] and the like.[357]

PROCEEDINGS _IN REM_

Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. Suits in admiralty take the form of a proceeding _in rem_ against the vessel and, with exceptions to be noted, proceedings _in rem_ concerning navigable waters are confined exclusively to federal admiralty courts. However, if a common law remedy exists, a plaintiff may bring an action at law in either a State or federal court of competent jurisdiction,[358] but in this event the action is a proceeding _in personam_ against the owner of the vessel. On the other hand, although the Court has sometimes used language which would confine proceedings _in rem_ to admiralty courts,[359] yet it has sustained proceedings _in rem_ in the State courts in actions of forfeiture. Thus in the case of C.J. Hendry Co. _v._ Moore,[360] the Court held that a proceeding _in rem_ in a State court against fishing nets in the navigable waters of California was a common law proceeding within the meaning of Sec. 9 of the Judiciary Act of 1789, and therefore within the exception to the grant of admiralty jurisdiction to the federal courts. At the same time, however, the Court was careful to confine such proceedings to forfeitures arising out of violations of State law.

ABSENCE OF A JURY

Another procedural difference between actions at law and in admiralty is the absence of jury trial in civil proceedings in admiralty courts unless Congress specifically provides for it. Otherwise the judge of an admiralty court tries issues of fact as well as of law.[361] Indeed, the absence of a jury in admiralty proceedings appears to have been one of the reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts of America, since they provided a forum where the English authorities could enforce the Navigation Laws without what Chief Justice Stone called "the obstinate resistance of American juries."[362]

TERRITORIAL EXTENT OF ADMIRALTY AND MARITIME JURISDICTION

As early as 1821 a federal district court in Kentucky asserted admiralty jurisdiction over inland waterways to the consternation of certain interests in Kentucky which succeeded in inducing the Senate to pass a bill confining admiralty jurisdiction to the ebb and flow of the tide, only to see it defeated in the House.[363] However, in 1825, in _The Thomas Jefferson_[364] the Court relieved these tensions by confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended in accordance with the English rule. Twenty-two years later this rule was qualified in Waring _v._ Clarke,[365] when the Court ruled that the admiralty jurisdiction under the Constitution was not to be limited or interpreted by English rules of admiralty and extended the jurisdiction of the federal courts to a collision on the Mississippi River ninety-five miles above New Orleans. In this ruling the Court moved in the direction of accommodating the rising commerce on the inland waterways and prepared the way for the Genesee Chief,[366] which reversed The Thomas Jefferson and sustained the constitutionality of an act of Congress passed in 1845 giving the district courts jurisdiction over the Great Lakes and connecting waters, and so in effect extended the admiralty jurisdiction to all the navigable waters of the United States.[367] The Genesee Chief therefore vastly expanded federal power,[368] and marked a trend which was continued in Ex parte Boyer,[369] where admiralty jurisdiction was extended to canals, and in The Daniel Ball,[370] where it was extended to waters wholly within a given State provided they form a connecting link in interstate commerce. This latter case is also significant for its definition of navigable waters of the United States as those that are navigable in fact, and as navigable in fact when so "used, or * * * susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[371] The doubts left by the Ball case in its distinction between navigable waters of the United States and navigable waters of the States were clarified by In re Garnett,[372] where it was held that the power of Congress to amend the maritime law was coextensive with that law and not confined "to the boundaries or class of subjects which limit and characterize the power to regulate commerce," and that the admiralty jurisdiction extends "to all public navigable lakes and rivers." In United States _v._ Appalachian Electric Power Co.,[373] the concept of "navigable waters of the United States" was further expanded to include waterways which by reasonable improvement can be made navigable for use in interstate commerce provided there is a balance between cost and need at a time when the improvement would be useful. Nor is it necessary that the improvement shall have been undertaken or authorized. Conversely, a navigable waterway of the United States does not cease to be so because navigation has ceased, and it may be a navigable waterway for only part of its course. Although this doctrine was announced as an interpretation of the commerce clause, the Garnett case and the decision rendered in Southern S.S. Co. _v._ National Labor Relations Board,[374] to the effect that admiralty jurisdiction includes all navigable waters within the country, makes it applicable also to the admiralty and maritime clause.

ADMIRALTY JURISDICTION VERSUS STATE POWER

The extension of the admiralty and maritime jurisdiction to navigable waters within a State does not, however, of its own force include general or political powers of government. Thus in the absence of legislation by Congress, the States through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore. In United States _v._ Bevans[375] the Court denied the jurisdiction of a federal circuit court to try defendant for a murder committed in Boston Harbor in the absence of statutory authorization of trials in federal courts for offenses committed within the jurisdiction of a State. While admitting that Congress may pass all laws which are necessary and proper for giving complete effect to admiralty jurisdiction, Chief Justice Marshall at the same time declared that "the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts."[376]

Exclusiveness of the Jurisdiction

Determination of the bounds of admiralty jurisdiction is a judicial function, and "no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits."[377] Nor is the jurisdiction self-executing. It can only be exercised under acts of Congress vesting it in the federal courts.[378] The admiralty jurisdiction of the federal courts was made exclusive of State court jurisdiction by the Judiciary Act of 1789 according to The "Moses Taylor,"[379] which also held that State laws conferring remedies _in rem_ could only be enforced in the federal courts. Consequently, the State courts were deprived of jurisdiction of a great number of cases arising out of maritime contracts and torts over which they had exercised jurisdiction prior to 1866. However, as before noted, the ninth section of the act of 1789 contained a provision, still in effect, which enables parties to avail themselves in State courts of such remedies as the common law is competent to give,[380] but in such cases the rights and obligations involved are still determined by the maritime law.[381]

Concessions to State Power

Nor does the exclusiveness of federal admiralty jurisdiction preclude the States from creating rights enforceable in admiralty courts. In The "Lottawanna,"[382] it was held that federal district courts sitting in admiralty could enforce liens given for security of a contract even when created by State laws. Likewise liabilities created by State statutes for injuries resulting in death have been enforced by proceedings _in rem_ in federal admiralty courts,[383] and, in the absence of Congressional legislation, a State may enact laws governing the rights and obligations of its citizens on the high seas. Under this general rule a law of Delaware providing for damages for wrongful death was enforced in an admiralty proceeding against a vessel arising out of a collision at sea of two vessels owned by Delaware corporations.[384] And in 1940, in Just _v._ Chambers,[385] the Supreme Court held specifically applicable in admiralty proceedings the law of Florida whereby a cause of action for personal injury due to another's negligence survives the death of the tort-feasor against his estate and against the vessel.

The Jensen Case and Its Sequelae

In the face of these decisions, except the last, the Court, nevertheless, held in 1917 in Southern Pacific Co. _v._ Jensen[386] that a New York Workman's Compensation statute was unconstitutional as applied to employees engaged in maritime work. Proceeding on the assumption that "Congress has paramount power to fix and determine the maritime law which shall prevail through the country," and that in the absence of a controlling statute the general maritime law as accepted by the federal courts is a part of American national law, Justice McReynolds proceeded to draw an analogy between the power of the States to legislate on admiralty and maritime matters and their power to legislate on matters affecting interstate commerce. Just as the States may not regulate interstate commerce where the subject is national in character and requires uniform regulation, so, he argued, they may not legislate on maritime matters in such fashion as to destroy "the very uniformity in respect to maritime matters which the Constitution was designed to establish" or to hamper and impede freedom of navigation between the States and with foreign countries. Nor could the act be covered by the saving clause of the act of 1789 governing common law remedies, since the remedy provided by the compensation statute was unknown to the common law.[387]

Following the Jensen decision Congress enacted a statute saving to claimants their rights and remedies under State workmen's compensation laws.[388] In Knickerbocker Ice Co. _v._ Stewart[389] the same majority of judges, with Justice McReynolds again their spokesman, invalidated this statute as an unconstitutional delegation of legislative power to the States. The holding was based on the premise, stated as follows: "The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations."[390] And a like fate overtook the attempt of Congress in 1922 to protect longshoremen and other workers under State compensation laws by excluding masters and crew members of vessels from those who might claim compensation for maritime injuries.[391] Finally, in 1927 Congress passed the Longshoremen's and Harbor Workers' Act,[392] which provided accident compensation for those workers who could not validly be compensated under State statutes. This time it seems to have succeeded, the constitutionality of the 1927 statute being apparently taken for granted.[393]

The net result of the Jensen Case and its progeny has been a series of cases which hold that in some circumstances the States can apply their compensation laws to maritime employees and in other circumstances cannot, if to do so "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."[394] But, as Justice Black pointed out in 1942 in Davis _v._ Department of Labor,[395] "when a State could, and when it could not, grant protection under a compensation act was left as a perplexing problem, for it was held 'difficult, if not impossible,' to define this boundary with exactness."[396] Nor, he continued, has the Court been able "to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must 'be determined in view of surrounding circumstances as cases arise.'"[397] As to the specific claim involved in the Davis Case, Justice Black stated further that it was "fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here."[398] Concurring in the Davis Case, Justice Frankfurter referred to the Jensen case as "that ill-starred decision," but agreed that reversal would not eliminate its resultant complexities and confusions until Congress attempted another comprehensive solution of the problem. Until then all the Court could do was "to bring order out of the remaining judicial chaos as marginal situations" were presented.[399]

POWER OF CONGRESS TO MODIFY THE MARITIME LAW; THE "LOTTAWANNA"

In view of the chaos created by the Jensen case and its apparent disharmony with earlier as well as some later decisions the question arises as to the scope of Congress's power to revise and codify the maritime law. In the "Lottawanna"[400] Justice Bradley as spokesman of the Court, while admitting the existence of a general body of maritime law, asserted that it is operative as law only insofar "as it is adopted by the laws and usages of that country,"[401] subject to such modifications and qualifications as may be made. So adopted and qualified it becomes the law of a particular nation, but not until then. "That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.'" Continuing, Justice Bradley stated that "the Constitution must have referred to a system of law coextensive with and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states."[402] However, the framers of the Constitution could not have contemplated that the law should remain ever the same, especially as Congress "has authority under the commercial power, if no other, to introduce such changes as are likely to be needed."[403] Sixteen years later in the Garnett case[404] Justice Bradley, speaking for a unanimous court, asserted that the power of Congress to amend the maritime law is coextensive with that law and not limited by the boundaries of the commerce clause, and that the maritime law is "subject to such amendments as Congress may see fit to adopt."[405] Likewise, Justice McReynolds in Southern Pacific Co. _v._ Jensen[406] emphasizes Congress' "paramount power to fix and determine the maritime law which shall prevail throughout the country," albeit in the absence of a controlling statute the general maritime law prevails; and the language of Knickerbocker Ice Co. _v._ Stewart[407] is to like effect, as is also that of Swanson _v._ Marra Bros.,[408] decided in 1946.

The law administered by the federal courts sitting in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by Congressional enactments, the common law of torts and contracts as modified by State or National legislation, and international prize law. This body of law, however, is subject at all times to the paramount authority of Congress to change it in pursuance of its powers under the commerce clause, the admiralty and maritime clause, and the necessary and proper clause. That portion of the Jensen opinion emphasizing Congressional power in this respect has never been in issue in either the opinions of the dissenters in that case or in subsequent opinions critical of it, which in effect invite Congress to exercise its power to modify the maritime law.[409]

Cases to Which the United States Is a Party: Right of the United States To Sue

As Justice Story pointed out in his Commentaries, "It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts."[410] As early as 1818 the Supreme Court ruled that the United States could sue in its own name in all cases of contract without Congressional authorization of such suits.[411] Later this rule was extended to other types of actions. In the absence of statutory provisions to the contrary such suits are initiated by the Attorney General in the name of the United States.[412] As in other judicial proceedings, the United States, like any other party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.[413] By the Judiciary Act of 1789 and subsequent amendments Congress has vested jurisdiction in the federal district courts to hear all suits of a civil nature at law or in equity, brought by the United States as a party plaintiff.[414]

SUITS AGAINST STATES

Controversies to which the United States is a party include suits brought against States as party defendants. The first such suit occurred in United States _v._ North Carolina[415] which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the State, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court's original jurisdiction did not extend to cases to which the United States is a party.[416] Stressing the inclusion within the judicial power of cases to which the United States and a State are parties, Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States "was given by Texas when admitted to the Union upon an equal footing in all respects with the other States."[417]

Suits brought by the United States against States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the State by the United States in breach of its trust obligations to the Indians.[418] In United States _v._ West Virginia,[419] the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries within the States.[420] Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.[421] Like suits were decided against Louisiana and Texas in 1950.[422]

IMMUNITY OF THE UNITED STATES FROM SUIT

In pursuance of the general rule that a sovereign cannot be sued in his own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an _obiter dictum_ by Chief Justice Jay in Chisholm _v._ Georgia, where he indicated that a suit would not lie against the United States because "there is no power which the courts can call to their aid."[423] In Cohens _v._ Virginia,[424] also by way of dictum, Chief Justice Marshall asserted, "the universally received opinion is, that no suit can be commenced or prosecuted against the United States." The issue was more directly in question in United States _v._ Clarke[425] where Chief Justice Marshall stated that as the United States is "not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it." He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.[426] Indeed, it was not until United States _v._ Lee[427] that the Court examined the rule and the reasons for it, and limited its application accordingly.

Waiver of Immunity by Congress

Since suits against the United States can be maintained only by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.[428] Only Congress can take the necessary steps to waive the immunity of the United States from liability for claims, and hence officers of the United States are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.[429] Even when authorized, suits can be brought only in designated courts.[430] These rules apply equally to suits by States against the United States.[431] Although an officer acting as a public instrumentality is liable for his own torts, Congress may grant or withhold immunity from suit on behalf of government corporations.[432]

United States _v._ Lee

United States _v._ Lee, a five-to-four decision, qualified earlier holdings to the effect that where a judgment affected the property of the United States the suit was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule "if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiffs when the United States is not a defendant or a necessary party to the suit."[433] Except, nevertheless, for an occasional case like Kansas _v._ United States,[434] which held that a State cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the Government and would in effect be a suit against the United States.[435] Even more significant is Stanley _v._ Schwalby,[436] which resembles without paralleling United States _v._ Lee, where it was held that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Difficulties Created by the Lee Case

Subsequent cases repeat and reaffirm the rule of United States _v._ Lee that where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States, does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.[437] Contrariwise, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.[438] But, as the Court has pointed out, it is not "an easy matter to reconcile all of the decisions of the court in this class of cases,"[439] and, as Justice Frankfurter quite justifiably stated in a dissent, "the subject is not free from casuistry."[440] Justice Douglas' characterization of Land _v._ Dollar, "this is the type of case where the question of _jurisdiction_ is dependent on decision of the _merits_,"[441] is frequently applicable.

Official Immunity Today

The recent case of Larson _v._ Domestic and Foreign Corp.,[442] illuminates these obscurities somewhat. Here a private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company's failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute, and therefore a suit against the United States. It held that although an officer in such a situation is not immune from suits for his own torts, yet his official action, though tortious cannot be enjoined or diverted, since it is also the action of the sovereign.[443] The Court then proceeded to repeat the rule that "the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff's property) can be regarded as so individual only if it is not within the officer's statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void."[444] The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: "The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right."[445]

CLASSIFICATION OF SUITS AGAINST OFFICERS

Suits against officers involving the doctrine of sovereign immunity have been classified by Justice Frankfurter in a dissenting opinion into four general groups. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the Government, or calls "for an assertion of what is unquestionably official authority."[446] Such suits, of course, cannot be maintained.[447] Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.[448] Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are also maintainable.[449] Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.[450] This category of cases presents the greatest difficulties since these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.

SUITS AGAINST GOVERNMENT CORPORATIONS

The multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer _v._ Reconstruction Finance Corp. and Regional Agricultural Credit Corp.,[451] the Court held that the Government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance, is a matter of ascertaining the Congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.[452] On the other hand, Indian nations are exempt from suit without further Congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties.[453]

Suits Between Two or More States

The extension of the federal judicial power to controversies between States and the vesting of original jurisdiction in the Supreme Court of suits to which a State is a party had its origin in experience. Prior to independence disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation Congress was made "the last resort on appeal" to resolve "all disputes and differences * * * between two or more States concerning boundary, jurisdiction, or any other cause whatever," and to constitute what in effect were _ad hoc_ arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten States.[454] It is hardly surprising, therefore, that during its first sixty years the only State disputes coming to the Supreme Court were boundary disputes[455] or that such disputes constitute the largest single number of suits between States. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization other types of cases have occurred with increasing frequency.

BOUNDARY DISPUTES; THE LAW APPLIED

Of the earlier examples of suits between States, that between New Jersey and New York is significant for the application of the rule laid down earlier in Chisholm _v._ Georgia,[456] that the Supreme Court may proceed _ex parte_ if a State refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between States, yet it does not exclude any;[457] that a boundary dispute is a justiciable and not a political question;[458] and that a prescribed rule of decision is unnecessary in such cases. On the last point Justice Baldwin stated: "The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the _sic volo_, _sic jubeo_, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires."[459]

MODERN TYPES OF SUITS BETWEEN STATES

Beginning with Missouri _v._ Illinois and the Sanitary District of Chicago,[460] which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like have become an increasing source of suits between States. Such suits have been especially frequent in the western States, where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas _v._ Colorado,[461] the Court established the principle of the equitable division of river or water resources between conflicting State interests. In New Jersey _v._ New York[462] where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: "A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And, on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the river that must be reconciled as best they may be."[463]

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a State as the donee of the bonds of another to collect thereon,[464] by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former,[465] of one State against another to enforce a contract between the two,[466] of a suit in equity between States for the determination of a decedent's domicile for inheritance tax purposes,[467] and of a suit by two States to restrain a third from enforcing a natural gas measure which purported to restrict the interstate flow of natural gas from the State in the event of a shortage.[468] In general in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term "controversies between two or more States" enunciated in Rhode Island _v._ Massachusetts,[469] and fortified by Chief Justice Marshall's dictum in Cohens _v._ Virginia[470] concerning jurisdiction because of the parties to a case, that "it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union."

CASES OF WHICH THE COURT HAS DECLINED JURISDICTION

In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. Thus in Alabama _v._ Arizona[471] where Alabama sought to enjoin 19 States from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between States will be exercised only when absolutely necessary, that the equity requirements in a suit between States are more exacting than in a suit between private persons, that the threatened injury to a plaintiff State must be of great magnitude and imminent, and that the burden on the plaintiff State to establish all the elements of a case is greater than that generally required by a petitioner seeking an injunction suit in cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant State must show that it "has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to * * * the common law or equity systems of jurisprudence."[472] The fact that the trust property was sufficient to satisfy the claims of both States and that recovery by either would not impair any rights of the other distinguished the case from Texas _v._ Florida,[473] where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a State may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.[474] Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable.[475] Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri's courts or in a federal district court in Missouri.[476]

THE PROBLEM OF ENFORCEMENT; VIRGINIA _v._ WEST VIRGINIA