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that which may result from the requirement that West Virginia public service corporations shall not, by means of export, disable themselves from performing their duties to consumers and to other distributing companies within the State. Before there can be, in a legal sense, danger that restriction will result, it must appear that one or more of the twelve exporting companies is disabling itself by such exportation, or is about to do so; and also that some state official is about to take effective action to prevent the exportation. But under the legislation of West Virginia many things would have to happen and much time must elapse before any of the exporting corporations would be under any legal duty to discontinue or lessen their exports, and still more time before it could actually be prevented from exporting gas. For, under West Virginia legislation, no executive officer and no court has power or jurisdiction to declare, or to enforce performance of, such alleged duty of a public service corporation until primary resort has been had to the Public Service Commission and the application to it has been acted upon, either by granting or by denying relief.

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Up to the time when these suits were begun no action of any kind had been taken in relation to matters dealt with by the Act of February 17, 1919. . . . And no action could have been taken; for the Act was then not yet in effect. How then can it be said that, in any legal sense, the Pennsylvania and Ohio consumers were in present danger of irreparable injury? Plaintiffs' fears were at best premature. . The objec

tion here is not that those interested should be left to an action at law for redress of any injuries which may be suffered. It is that the "judicial stage" of the controversy had not been reached when these suits were begun; and, indeed, has not been since.

[The remaining portion of the opinion is devoted to the procedural difficulties involved in administering an equitable remedy in the circumstances of these cases.]

NOTE. Within the meaning of the jurisdictional clause of the Constitution, a public corporation or political sub-division of a State, such as a county, is a citizen, Mercer County v. Cowles (1869), 7 Wallace, 118; but a State is not, Postal Telegraph Cable Co. v. Alabama (1894), 155 U. S. 482; Minnesota v. Northern Securities Co. (1904), 194 U. S. 48. A corporation formed under an act of Congress is a citizen of the United States but not of any State. A suit between such a corporation and a corporation formed under the laws of a State is not

a suit between citizens of two States, Bankers Trust Co. v. Texas & Pacific Ry. (1916), 241 U. S. 295.

Within the meaning of the jurisdictional clause, the District of Columbia is not a State, Hepburn and Dundas v. Ellzey (1805), 2 Cranch, 445, nor is a Territory, Corporation of New Orleans v. Winter (1816), 1 Wheaton, 91.

While the Constitution was pending before the States, Hamilton (The Federalist, No. 81), Marshall (Elliot's Debates, III, 555), and Madison (Ib., III, 522), had expressed the opinion that the Federal courts were given no jurisdiction of a suit by an individual against a State. The feeling aroused in Georgia by the decision in Chisholm v. Georgia (1793), 2 Dallas, 419, was most bitter, as was evidenced by a bill passed by the Georgia House but not adopted by the Senate which provided that any Federal marshal attempting to carry the judgment of the Supreme Court into execution "shall be guilty of felony, and shall suffer death, without benefit of clergy, by being hanged." Phillips, "Georgia and State Rights," Annual Report of the American Historical Association for 1901, II, 27. Many of the States shared Georgia's feeling, but expressed themselves more temperately. Two days after the decision was announced, the Eleventh Amendment was proposed in Congress. Its adoption operated to terminate the jurisdiction of the Supreme Court not only over suits thereafter instituted by a citizen against a State but also over such suits pending at the time of its adoption, Hollingsworth v. Virginia (1798), 3 Dallas, 378. Since its adoption, every State is exempt from suit in the Federal courts by an individual, whether the suit be brought against the State eo nomine or against an officer of the State standing in such a relation to the controversy that the suit is in reality against the State. In Osborn v. Bank of the United States (1824), 9 Wheaton, 738, 857, Chief Justice Marshall said, "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record." This statement is too broad, and has not been followed. Even Marshall himself departed from it, for in The Governor of Georgia v. Madrazo (1828), 1 Peters, 110, 123, he said that "where the chief magistrate of a State is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the State itself may be considered as a party on the record." It is now well settled that whether a suit is one against 'a State is determined not by the names of the parties to the action but by the essential nature and effect of the proceeding as they appear from the entire record, Louisiana v. Jumel (1883), 107 U. S. 711; Hagood v. Southern (1886), 117 U. S. 52; In re Ayres (1887), 123 U. S. 443; Pennoyer v. McConnaughy (1891), 140 U. S. 1; Smith v. Reeves (1900), 178 U. S. 436; Murray v. Wilson Distilling Co. (1909), 213 U. S. 151; Lankford v. Platte Iron Works Co. (1915), 235 U. S. 461; Ex parte State of New York, No. 1 (1921), 256 U. S. 490. The last-mentioned case sets at rest the doubts expressed by Justice Story and others as to whether the Eleventh Amendment, which mentions only suits in law or equity, applies also to cases of admiralty and maritime jurisdiction. The court holds that the phraseology of

the Amendment was determined by the fact that it was designed for the purpose of altering the rule in Chisholm, v. Georgia (1793), 2 Dallas, 419, which happened to be a suit at law, but it would be mani. festly contrary to the spirit of the Amendment to allow a State to be subject without its consent to any kind of suit brought by an individual. On the other hand the Eleventh Amendment does not impair the power of the Federal courts to enforce the commerce clause and the guaranties contained in the first ten amendments and in the Fourteenth Amendment, Prout v. Starr (1903), 188 U. S. 537.

While the language of the Constitution extending the judicial power to suits between States and to suits between a State and a citizen of another State is unqualified, it has been held that not all such controversies are justiciable in their nature. The power "was conferred by the Constitution," said Chief Justice Taft, "as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force. The jurisdiction is therefore limited generally to disputes which, between States entirely independent, might be properly the subject of diplomatic adjustment," North Dakota v. Minnesota (1923), 263 U. S. 365. The language of the Chief Justice is too broad. An independent nation may by diplomatic negotiation undertake to obtain from another independent nation the payment of a debt owed by the latter to a citizen of the former, but in New Hampshire v. Louisiana (1883), 108 U. S. 76, which was a suit brought by New Hampshire for the enforcement of the payment of a debt owed by the defendant State to citizens of New Hampshire and which they had assigned to New Hampshire for collection, the Supreme Court held that New Hampshire was not the real party in interest and hence could not maintain a suit. But a suit of this kind is not to be confounded with one in which the State as parens patriae brings suit to protect the general health, comfort or property rights of its citizens when they are injured or threatened by the action of a neighboring State. "In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain," Georgia v. Tennessee Copper Co. (1907), 206 U. S. 230, a case involving the right of the State of Georgia to enjoin a corporation in a neighboring State from spreading noxious fumes to the detriment of her citizens and property. On the same principle the Supreme Court took jurisdiction over a suit brought by a State to restrain another State from depositing in an interstate stream sewage containing germs dangerous to the health of the citizens of the plaintiff State, Missouri v. Illinois (1901), 180 U. S. 208; (1906), 202 U. S. 496. Likewise it granted relief to a State which brought suit against another State to prevent the latter from diverting from the citizens of the former the water of an interstate stream which they had appropriated under the doctrine of appropria tion recognized in both States, Wyoming v. Colorado (1922), 259 U. S. 419. Such jurisdiction however is not to be assumed lightly. "Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious mag. nitude and it must be established by clear and convincing evidence,"

New York v. New Jersey (1921), 256 U. S. 296, 309. Hence a suit in which the plaintiff State alleged that its citizens were injured by the mal-administration of the laws of the defendant State was held not to present a controversy between States, Louisiana v. Texas (1900), 176 U. S. 1. The jurisdiction of the Federal courts does not extend to a suit by a State to recover penalties for the breach of its own municipal law, Wisconsin v. Pelican Insurance Co. (1888), 127 U. S. 265, nor does the original jurisdiction of the United States Supreme Court extend to a suit brought by a State against one of its own citizens, Minnesota v. Northern Securities Company (1902), 184 U. S. 540.

It has been repeatedly decided in accordance with Ex parte Young (1908), 209 U. S. 123, that a suit to restrain a State officer from executIng an unconstitutional statute is not a suit against the State, Western Union Telegraph Co. v. Andrews (1910), 216 U. S. 165: Herndon v Chicago, Rock Island & Pacific Ry. (1910), 218 U. S. 135; Hopkins v. Clemson Agricultural College (1911), 221 U. S. 636; Home Telephone & Telegraph Co. v. Los Angeles (1913), 227 U. S. 278. And similarly suit will lie against an officer who has acted in excess of his authority or under the authority of an invalid law, Scott v. Donald (1897), 165 U. S. 107; Tindal v. Wesley (1897), 167 U. S. 204. Hence a suit to recover money or property wrongfully taken and in the hands of such defendants or to enforce compensation in damages is not a suit against a State, Pennoyer v. McConnaughy (1891), 140 U. S. 1. A suit against a corporation the stock of which is owned by a State is not a suit against a State, Bank of the United States v. Planters' Bank of Georgia (1824), 9 Wheaton, 904.

Most of the suits between States have related to boundary disputes. Among the most important are Rhode Island v. Massachusetts, which was before the Court for thirteen years, its chief phases being reported in (1838), 12 Peters, 657 and (1846), 4 Howard, 591; Florida v. Georgia (1854), 17 Howard, 478, in which the United States intervened as an interested party; Virginia v. West Virginia (1870), 11 Wallace. 39, which involved the title to two counties; Missouri v. Kentucky (1870), 11 Wallace, 395, determining the effect of a shifting channel; Indiana v. Kentucky (1890), 136 U. S. 479, where Indiana was defeated chiefly because of her long acquiescence in Kentucky's claim; Nebraska v. Iowa (1891), 143 U. S. 359, effect of a sudden change in a boundary river; Iowa v. Illinois (1893), 147 U. S. 1, determining which river channel was their boundary; Missouri v. Nebraska (1904), 196 U. S. 23, effect of avulsion on a boundary; Louisiana v Mississippi (1906), 202 U. S. 1, in which the doctrine of the thalweg was applied to the waters of a sound; Maryland v. West Virginia (1910), 217 U. S. 1, in which the doctrine of title by prescription was applied; Arkansas v. Tennessee (1918), 246 U. S. 158, decided on the doctrine of avulsion, but the doctrine of submergence and reappearance was considered; Minnesota v. Wisconsin (1920), 252 U. S. 273, which distinguishes between "deepest water" and "principal navigable channel"; Georgia v. South Carolina (1922), 257 U. S. 516, which determines the location of boundary in a river where the riparian States have equal rights of navigation; and Oklahoma v.

Texas (1923), 260 U. S. 606, which distinguishes between a river and the bank of a river as a boundary.

As to suits by the United States against a State, see United States V. North Carolina (1890), 136 U. S. 211, United States v. Texas (1891), 143 U. S. 621, and United States v. Michigan (1903), 190 U. S. 379. As to suits by a State against the United States, see United States V. Lee (1882), 106 U. S. 196; Minnesota v. Hitchcock (1902), 185 U. S. 373; Oregon v. Hitchcock (1906), 202 U. S. 60; Kansas v. United States (1907), 204 U. S. 331.


WILLIAM MARBURY v. JAMES MADISON, Secretary of State of the United States.

1 Cranch, 137.

[Near the end of his term of office President Adams nominated William Marbury to the office of justice of the peace in the District of Columbia. The nomination was confirmed by the Senate, the commission was signed by the President, and the great seal of the United States was affixed by the Secretary of State. On the expiration of Adams' term of office, Marbury applied to James Madison, Secretary of State under Jefferson, for the delivery of his commission. Jefferson held that the appointment was not complete until the commission had been delivered, and directed Madison to withhold it. Marbury and several others similarly circumstanced then moved the court for a rule to James Madison to show cause why a writ of mandamus should not issue ordering him to deliver the commission. No cause having been shown there was a motion for a writ of mandamus.]

The following opinion of the court was delivered by the Chief Justice [MARSHALL].

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The first object of inquiry is-Has the applicant a right to the commission he demands? [The court finds that as Marbury's appointment was complete he has a right to the commission.]

2. This brings us to the second inquiry; which is: If he has a right, and that right has been violated, do the laws of his

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