California v. Southern Pacific Company (157 U.S. 229)/Dissent Harlan

Mr. Justice HARLAN, dissenting.

In my judgment, it is competent for the court, in the exercise of its original jurisdiction, to proceed to a final decree in this cause, that will determine the present controversy between the state of California and the Southern Pacific Company.

By the second section of the third article of the constitution, it is declared that the judicial power of the United States 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 all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects.' And it is provided in the same section that 'in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make.'

It is beyond dispute that the case before us presents a controversy between the state of California and a corporation created under the laws of the commonwealth of Kentucky, and therefore a controversy between a state and a citizen of another state. And as the judicial power of the United States extends to such a controversy, and as this court is invested with original jurisdiction 'in all cases' to which the judicial power of the United States extends, in which a state is a party, I do not see how we can escape the obligation imposed by the constitution, to hear this cause upon its merits, and pass such decree as will determine at least the matters in dispute between California and this Kentucky corporation.

It is said that we cannot proceed further because it appears from the evidence that a municipal corporation of California asserts, and a private corporation of the same state may have, an interest in the subject-matter of the litigation, and could not be made parties of record without ousting our jurisdiction. Upon that ground alone it is held that we are without jurisdiction to pass a final decree as between the state and the defendant corporation.

I submit that the same course should be pursued in this case that was pursued in Florida v. Georgia, 17 How. 478, 493. The state of Florida invoked the original jurisdiction of this court to determine a question of boundary between it and the state of Georgia. The latter state appeared and filed its answer. The jurisdiction of this court rested upon the constitutional provisions extending the judicial power of the United States 'to controversies between two or more states,' and giving this court original jurisdiction in all cases in which a state is a party.

The attorney general of the United States appeared and filed an information in which he asked leave to intervene on behalf of the government, on the ground that it was interested in the settlement of the boundary in dispute. The application to intervene was resisted by the state of Georgia upon the ground that under the constitution this court had not, and could not have, jurisdiction of the cause, except as a controversy between states of the Union, and that the appearance of any other party would determine the jurisdiction, and put the cause out of court.

The court, speaking by Chief Justice Taney, said: 'The constitution confers on this court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. And it is settled by repeated decisions that a question of boundary between states is within the jurisdiction thus conferred. But the constitution prescribes no particular mode of proceeding, nor is there any act of congress upon the subject. And at a very early priod of the government a doubt arose whether the court could exercise its original jurisdiction without a previous act of congress regulating the process and mode of proceeding. But the court, upon much consideration, held that, although congress had undoubtedly the right to prescribe the process and mode of proceeding in such cases as fully as in any other court, yet the omission to legislate on the subject could not deprive the court of the jurisdiction conferred; that it was a duty imposed on the court, and in the absence of any legislation by congress the court itself was authorized to prescribe its mode and form of proceeding, so as to accoumplish the ends for which the jurisdiction was given.'

After observing that it was the duty of the court to mold its proceedings for itself, in a manner that would best attain the ends of justice, and enable it to exercise conveniently the power conferred,-disengaging such proceedings from all unnecessary technicalities and niceties, and conducting them in the simplest form,-the chief justice proceeded:

'It is manifest, if the facts stated in the suggestion of the attorney general are supported by testimony, that the United States must have a deep interest in the decision in this controversy. And if this case is decided adversely to their rights they are without remedy, and there is no form of proceeding in which they could have that decision revised in this court, or anywhere else. Justice, therefore, requires that they should be heard before their rights are concluded. And if this were a suit between individuals, in a court of equity, the ordinary practice of the court would require a person standing in the present position of the United States, to be made a party, and would not proceed to a final decree until he had an opportunity of being heard.

'But it is said that they cannot, by the terms of the constitution, be made parties in an original proceeding in this court between states; that, if they could, the attorney general has no right to make them defendants, without an act of congress to authorize it.

'We do not, however, deem it necessary to examine or decide these questions. They presuppose that we are bound to follow the English chancery practice, and that the United States must be brought in as a party on the rocord, in the technical sense of the word, so that a judgment for or against them may be passed by the court. But, as we have already said, the court are not bound, in a case of this kind, to follow the rules and modes of proceeding in the English chancery, but will deviate from them where the purposes of justice require it, or the ends of justice can be more conveniently attained.

'It is evident that this object can be more conveniently accomplished in the mode adopted by the attorney general than by following the English practice in cases where the government have an interest in the issue of the suit. In a case like the one now before us, there is no necessity for a judgment against the United States, for when the boundary in question shall be ascertained and determined by the judgment of the court, in the present suit, there is no possible mode by which that decision can be reviewed or re-examined at the instance of the United States. They would therefore be as effectually concluded by the judgment as if they were parties on the record, and a judgment entered against them. The case then is this: Here is a suit between two states, in relation to the true position of the boundary line which divides them. But there are twenty-nine other states, who are also interested in the adjustment of this boundary, whose interests are represented by the United States. Justice certainly requires that they should be heard before their rights are concluded by the judgment of the court, for their interests may be different from those of either of the litigating states. And it would hardly become this tribunal, intrusted with jurisdiction where sovereignties are concerned, and with power to prescribe its own mode of proceeding, to do injusticerather than depart from English precedents. * *  * And if, as has been urged in argument, the United States cannot, under the constitution, become a party to this suit, in the legal sense of that term, and the English mode of proceeding in analogous cases is therefore impracticable, it furnishes a conclusive argument for the mode proposed, for otherwise there must be a failure of justice.'

The mode adopted in Florida v. Georgia was to allow the United States to file its proofs without becoming a party, in the technical sense of the term, but without right to interfere in the pleading or evidence or admissions of the states, or of either of them; the attorney general of the United States to be heard in argument; and the court, in deciding upon the true boundary line, to take into consideration all the evidence offered by the United States and by the states.

Now, that is substantially the course pursued at the outset in this case. The city of Oakland, by leave of the court, has presented its proofs. It has been allowed to file briefs and such documents and maps as would illustrate its alleged title. It has participated in the taking of all the evidence in the cause. The case has been fully heard upon its merits, as they involve the rights of California, the Southern Pacific Company, and the city of Oakland. All of theose parties earnestly desire this court to proceed, as between them, to a final decree on the merits. If any other party is interested in the issues, we can hold the cause until that party, if it so wishes, can make proof of such interest, and its nature, just as the city of Oakland has done.

As this court, having original jurisdiction of controversies between two or more states, would not refuse to determine the controversy between Florida and Georgia because other parties had an interest in the subject-matter of that controversy, and could not, as was claimed, be admitted as parties of record without defeating its jurisdiction, ought we to dismiss a suit between a state and a corporation or citizen of another state because other parties interested in the result of that suit cannot be amitted as parties of record, but may be admitted to occupy such position with reference to the case as will enable the court to attain the ends of justice as between all who assert any interest in the result of the litigation? The suggestion that the Oakland Water-Front Company has such an interest as entitles it to be heard comes from the court, not from that company, or from any of the parties before us. If it be deemed proper to give that company an opportunity to assert its claims, we could, as just suggested, direct notice to be given to it of the pendency of this litigation, so that it could, if so advised, appear in the same way in which the city of Oakland has been allowed to appear.

I have thus far considered the question upon the assumption that a decree, as between California and the Southern Pacific Company, might legally affect the claims of others who are not formal parties to the suit. The court does not say, in words, that such a decree could be pleaded in bar in any subsequent suit, or would affect in law the rights of the city of Oakland or the Water-Front Company. And I take it that the court does not mean to be understood as attaching any such effect to a decree simply between the parties to the present bill. Now, if a decree between the parties to the bill will not, in law, bar any c aim of parties who are not admitted to be heard, in some form, it is difficult to understand why the court should not recognize its constitutional obligation to determine this controversy between a state and a corporation of another state. It is none the less a controversy between a state and a citizen of another state because others, not parties of record, may have an interest in its determination. Let us suppose a decree was passed, only as between California and the Kentucky corporation, dismissing the suit for want of equity. That decree would be conclusive as between the state and that corporation. But it would not have any effect, as a bar, in a subsequent litigation, respecting the same or some of the same matters between the Southern Pacific Company and the city of Oakland, or between the Southern Pacific Company and the water-front company, or between the state and one or both of the corporations not parties of record. Undoubtedly, any decree rendered by this court would be cited by the successful party, when involved in litigation with other parties, as evidence as to what the law is. But it would not be obligatory upon any court in other suits between different parties. A suit upon coupons of bonds issued by a municipal corporation might be so framed as to involve the validity of the bonds themselves,-a question in which every holder of such bonds would, in a sense, be interested. But a judgment in such a suit that the bonds were void for the want of power to issue them, while conclusive as between the parties to that suit, would not conclude the holders of bonds who were not before the court in some effective form. A suit to foreclose a second mortgage upon the property of a corporation might result in a decree declaring that the corporation was without power to give any mortgage whatever upon its property. But that decree would not conclude the parties interested in a first mortgage, who were not in court, nor represented by the trustee named in the mortgage under which they claimed. So a decree as between California and the Southern Pacific Company would not conclude outside persons neither admitted as parties, nor permitted to appear and be heard in respect of their rights. In this view, this court can decline to determine finally the rights of any except those who are parties of record, and, as the controversy between those parties is one between a state and a corporation and a citizen of another state, it is one within our original jurisdiction.

It seems to me that, according to both the letter and spirit of the constitution, this court cannot refuse to exercise its original jurisdiction over a controversy between a state and a citizen of another state because a citizen of the plaintiff state has or may assert some interest in the subject-matter of that controversy, and that in such a case it is our duty either to permit the latter citizen to be heard, without becoming a party of record, if thereby our jurisdiction would be defeated, or proceed to a decree between the original parties to the controversy, leaving unaffected, in law, the rights of others.

Our constitutional duty is to determine the 'case' in which the state is a party, taking care to give all who are interested in its determination a reasonable opportunity to produce evidence and to be heard in support of their rights. In this way only can we give full effect to the constitution, and at the same time attain the ends of justice, unembarrassed by mere forms. We should not impose undue restrictions upon the right of the states to invoke our original jurisdiction. Jurisdiction to determine all cases to which the judicial power of the United States extends, in which a state is a party, gives authority to decide every controversy that arises in such cases, the determination of which is either necessary or proper in order to dispose of the case in which it arises.

If this be not a sound interpretation of the constitution, the result will be that this court will not, in any case, exercise it original jurisdiction over a case 'between two or more states,' if it appears that individual citizens have an interest in its determination. A controversy capable of judicial solution may arise between two states, and it may be important to the peace of those states-indeed, of the whole country-that it should be determined by this court. But, under the interpretation of the constitution adopted in this case, our jurisdiction cannot be invoked in any mode for its final settlement if it appears in evidence that some individual or corporation is interested in that settlement. Still more, although this court is given original jurisdiction of a case between one of the states of the Union and a foreign state, it will not exercise it, even in such a case, if individual parties are interested in the controversy.

As the presence, in a case arising under the constitution, or the laws or the treaties of the United States, of a question or controversy depending upon general principles of law, will not oust the jurisdiction of the courts as conferred by the constitution (Osborne v. Bank, 9 Wheat. 738), so the presence, in a case brought by a state against a citizen of another state, of a question or controversy in which others besides the parties of record are interested, ought not to oust the jurisdiction of the court to determine the controversy between the original parties, especially where the decree between the parties of record will not, in law, conclude, or is so framed that it will not conclude, the rights of others who were not, in some form, before the court.

Under the ruling now made, how is the state of California to obtain a judicial determination of the controversy between it and this foreign corporation? It is said that a suit may be brought in one of its own courts against all persons asserting an interest in the property rights here in question. The effectiveness of such a suit would depend upon the ability of the state to bring the Kentucky corporation into court, so that it would be bound by the final decree. It may be that that corporation does business in California under the condition, among others, that it will have an agent there upon whom process can be served. But surely the duty of this court, under the constitution, to exercise its original jurisdiction in respect to a controversy between a state and a corporation of another state, cannot depend upon the question whether the plaintiff state can compel that corporation to answer in its own courts. Suppose the defendant is an individual citizen of another state, who cannot be served with process in the state desiring to bring suit against him. In such a case the state must, under the principles now announced, be without a remedy for the protection of its rights, or it will be driven to sue its adversary in the courts of his own state, whose decision will be final, unless the controversy happens to involve some question of a federal nature; and even then this court could only decide the federal question presented, and must accept the decree of the state court as conclusive upon all other questions. The state could not sue in any circuit court of the United States, for that court has no jurisdiction, under the acts of congress, of a suit brought by a state against a citizen of another state, unless perhaps such suit be one arising under the constitution or laws or treaties of the United States. The framers of the constitution did not intend to subject a state, under any circumstances, to the indignity of being compelled to submit its controversies with citizens of other states to the courts of such other states. They opened the doors of this court to every state having a cause of action against a citizen of another state. In my judgment, we have no right to refuse a hearing to a state having such a cause of action because of the circumstance that one or more of its people assert an interest in the subject-matter of its controversy with the defendant citizen of another state.

For hese reasons, I am constrained to dissent from the opinion and judgment of the court.

Mr. Justice BREWER authorizes me to say that he concurs in this opinion.