California v. Southern Pacific Co.

157 U.S. 229 (1895)

CALIFORNIA
v.
SOUTHERN PACIFIC COMPANY.

No. 7. Original.

Supreme Court of United States.

Argued December 19, 20, 21, 1894. Decided March 18, 1895. ORIGINAL.

Mr. W.H.H. Hart, Attorney General of the State of California, opened for plaintiff. Mr. Aylett R. Cotton was on his brief.

Mr. William M. Stewart for defendant.

Mr. J. Hubley Ashton for defendant.

Mr. John S. Miller and Mr. William R. Davis as amici curiœ, and as counsel for the city of Oakland. Mr. James A. Johnson, Mr. William Lair Hill, Mr. Edward J. Pringle, and Mr. H.A. Powell were on their brief.

Mr. Harvey S. Brown filed a brief for defendant.

Mr. John K. Cowen for defendant. Mr. Hugh L. Bond, Jr., was on his brief.

Mr. William H.H. Hart, Attorney General of the State of California, closed for plaintiff.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

By the third of our general rules it is provided: "This court considers the former practice of the courts of king's bench and of chancery, in England, as affording outlines for the practice of this court; and will, from time to time, make such alterations therein as circumstances may render necessary." 108 U. S 574. This rule is, with the exception of some slight verbal alterations and the addition of the word "former" before the word "practice" in the first line, the same as original general rule seven, adopted August 8, 1791. 1 Cranch, xvii; 2 Dall. 411. And in cases of original jurisdiction it has been determined that this court will frame its proceedings according to those which had been adopted in the English courts in analogous cases, and that the rules of court in chancery should govern in conducting the case to a final issue, Rhode Island v. Massachusetts, 12 Pet. 657; 13 Pet. 23; 14 Pet. 210; 15 Pet. 233; Georgia v. Grant, 6 Wall. 241; although the court is not bound to follow this practice when it would embarrass the case by unnecessary technicalities or defeat the purposes of justice. Florida v. Georgia, 17 How. 478.

It was held in Mallow v. Hinde, 12 Wheat. 193, 198, that where an equity cause may be finally decided between the parties litigant without bringing others before the court who would, generally speaking, be necessary parties, such parties may be dispensed with in the Circuit Court if its process cannot reach them or if they are citizens of another State; but if the rights of those not before the court are inseparably connected with the claim of the parties litigant so that a final decision cannot be made between them without affecting the rights of the absent parties, the peculiar constitution of the Circuit Court forms no ground for dispensing with such parties. And the court remarked: "We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity whatever may be their structure as to jurisdiction. We put it upon the ground that no court can adjudicate directly upon a person's right, without the party being actually or constructively before the court."

In Shields v. Barrow, 17 How. 130, the subject is fully considered by Mr. Justice Curtis speaking for the court. The case of Russell v. Clarke's Executors, 7 Cranch, 98, is there referred to as pointing out three classes of parties to a bill in equity: "1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience." Reference is made to the act of Congress of February 28, 1839, c. 36, 5 Stat. 321, and the 47th rule of equity practice. The first section of the statute, carried forward into section 738 of the Revised Statutes, enacted: "That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district where the suit is brought or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties, not regularly served with process, or not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit." But Mr. Justice Curtis remarked that while the act removed any difficulty as to jurisdiction between competent parties regularly served with process, it did not attempt to displace that principle of jurisprudence on which the court rested Mallow v. Hinde, and so far as the 47th rule was concerned, that was only a declaration for the government of practitioners and courts of the effect of the act of Congress and of the previous decisions of the court on the subject of that rule. And Mr. Justice Curtis added: "It remains true, notwithstanding the act of Congress and the 47th rule, that a Circuit Court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights. To use the language of this court, in Elmendorf v. Taylor, 10 Wheat. 167: `If the case may be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be a resident of another State, ought not to prevent a decree upon its merits.' But if the case cannot be thus completely decided, the court should make no decree."

Mr. Daniell thus lays down the general rule: "It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject, ought generally, either as plaintiffs or defendants, to be made parties to the suit, or ought by service upon them of a copy of the bill, or notice of the decree to have an opportunity afforded of making themselves active parties in the cause, if they should think fit." 1 Dan. Ch. Pl. and Pr. 4th Am. ed. 190.

The rule, under some circumstances, not important to be considered here, may be dispensed with when its application becomes extremely difficult or inconvenient. Equity Rule 48.

Sitting as a court of equity we cannot, in the light of these well-settled principles, escape the consideration of the question whether other persons who have an immediate interest in resisting the demand of complainant are not indispensable parties or, at least, so far necessary that the cause should not go on in their absence. Can the court proceed to a decree as between the State and the Southern Pacific Company, and do complete and final justice, without affecting other persons not before the court, or leaving the controversy in such a condition that its final termination might be wholly inconsistent with equity and good conscience?

The boundaries of the State of California, as defined and established in the constitution under which the State was admitted into the Union, by the act of Congress approved September 9, 1850, embraced all the soil of the beds of the bay of San Francisco and the arms of the bay, including what was and is known as San Antonio estuary or San Antonio Creek, on the eastern side of the bay opposite to San Francisco. The tide ebbs and flows naturally in the estuary, which contains a natural tidal basin, and the bay and estuary are connected with the waters of the Pacific Ocean by the Golden Gate.

The contention of the State was that the legislature did not have the power to grant the water front to the town of Oakland, nor to any one, so as to create any title or interest in the grantee; nor to authorize the town to grant the entire water front to any person to be held and owned as his private property; that the act of May 4, 1852, did not authorize the town to grant its water front, namely, the lands lying within the limits of that town between high tide and ship channel, to Carpentier, nor to any one to be held as private property; that the ordinance of May 27, 1852, was not designed to confer on Carpentier an interest in the Oakland water front beyond thirty-seven years; that the ordinance was against public policy and void; that the deed of the president of the board of trustees was his individual deed, and, if valid, only conveyed for the life of Carpentier, because it did not run to him and his heirs; that the alleged grant was not consistent with the policy of the State; that the grant was revoked by the act of March 25, 1854, and was not confirmed by the act of May 15, 1861; that the act of March 21, 1868, did not authorize the city of Oakland to convey away the water front or to settle existing controversies in that way; that such a settlement would be contrary to public policy and contrary to the charter of the city.

The defendant contended that it is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof when that can be done without substantial impairment of the interests of the public in such waters, and subject to the paramount right of Congress to control their navigation so far as might be necessary for the regulation of commerce; that the State of California, in and by the act of May 4, 1852, made an irrevocable grant in prœsenti to the town of Oakland of the title and property in all the lands lying within the corporate limits of the town between high tide and ship channel, with the power and right to alien and convey the lands or any part of them for the purposes contemplated by the act; that the act of March 25, 1854, did not, by its own terms or otherwise, operate as a repeal of that grant; that the grant was confirmed and ratified by the legislature of California by the act of May 15, 1861, and by the council of the city of Oakland by and under the authority of the act of March 21, 1868; that the grant was made in pursuance of the settled policy of the State, and created no interference with or impairment to the bay of San Francisco, nor impaired or interfered with the interests of the public in the waters of that bay or any part thereof, or with the legislative power of the State to regulate or use all the waters in behalf of the public for the purposes of navigation. It was further contended that the State was estopped from denying the effect of the act of May 4, 1852, to convey and pass a valid title to the lands embraced by it to the town of Oakland, and estopped by the acts of May 15, 1861, and of March 25, 1868, respectively, to deny the validity of the title of Carpentier and those claiming under him; and that the city of Oakland was also estopped to deny the effect of the ordinances of the town of Oakland of May 27, 1852; January 1, 1853; August 27, 1853; and of the deed of conveyance by the president of the board of trustees of the town, to grant and convey a valid title in fee simple in the lands in controversy to Carpentier by the operation of the ordinances of the city of April 1 and 2, 1868, under the act of the legislature of March 21, 1868, authorizing the city to settle its controversies with Carpentier. And further, that the confirmation of the ordinances and deed of the town of Oakland by the ordinances of the city of Oakland under the act of 1868, besides again validating the ordinances and the deed of conveyance of the town, operated as a grant by the city of Oakland and the State of California of the land in fee simple absolute to the Oakland Water Front Company as grantee or alienee of Carpentier.

On behalf of the city of Oakland, which was permitted to be heard at the bar by counsel as amici curiœ, it was insisted that the original grant of the water front to the town of Oakland had never been revoked; that the city was simply the town's successor in that regard; and that its rights thereunder, of whatever nature, had in no manner been affected by any exertion of the legislative power of the State. Admitting that a municipal corporation as such has no proprietary interest or riparian rights in tide lands situated within its corporate limits, the city claimed that title had passed to it from the State; that, regarded as holding in trust as a governmental agency, nevertheless it had an interest in the grant of individual advantage, and that, in any view, as an existing corporate entity clothed with powers to be locally exercised, though for the general public good, it could not be divested thereof in the absence of legislation to that end by proceedings in which it was not allowed to participate as a litigant. But counsel for the State argued that whatever construction might be put upon the acts of the legislature relating to the city of Oakland, in connection with the water front, the State retained its sovereign power to preserve it for the use of the public free from obstruction, and could alone, by its attorney general, maintain the action; that the city was no more interested in the suit directly or collaterally than any administrative agency would be; that the grant by the act of May 4, 1852, was not in absolute ownership, but in trust for improvement; and that the grant was revoked by the repeal of the act of May 4, 1852, by section 19 of the act of March 25, 1854.

The prayer of the bill was, among other things, for a decree adjudging that the State could not make such a grant to the town; that the town of Oakland had no authority to grant or convey all its water front or any part thereof; and that any control conferred on the town by the act of 1852 was annulled by the act of 1854.

But it was said that, notwithstanding the breadth of the prayer, relief, if accorded, would be confined to the seven specified parcels, and that the decree would not bind those claiming interests in other parts of the water front, although as to the particular parcels, defendant's lessors, the Central Pacific Railroad Company and the South Pacific Coast Railway Company and its grantor, the Oakland Water Front Company, all corporations and citizens of California, would be bound. Considered, however, in reference to the main contention of the State, namely, the want of power to make the grant of the entire water front at all, the argument treated the water front as one and indivisible for the purposes of the case. Indeed, it was insisted that even if it were conceded that the legislature could empower a municipality to deal with parts of its water front in the interest of the public by authorizing the construction of improvements to a certain extent, creating so far a proprietary interest in those thus authorized, yet that such action as to portions of the grant, though sustainable if independent thereof, must be regarded as involved in the invalidity of the entire grant. Irrespective, then, of the extent, technically speaking, of the effect and operation of a decree as to the seven parcels, based on that ground, as res adjudicata, it is impossible to ignore the inquiry whether the interests of persons not before the court would be so affected and the controversy so left open to future litigation as would be inconsistent with equity and good conscience.

Without questioning in any way the authority of the attorney general of the State of California to institute this suit, it is admitted that it was not directed to be commenced by any act of the legislature of that State. If this court were of opinion that the city of Oakland occupied the position of the successor merely of the town of Oakland; that the grant of the water front to the town was as comprehensive as is claimed by defendant, and that it had not been annulled by any act of the legislature, but also held that the State had no power to make such grant, then the city of Oakland would be deprived of the rights it claims under the grant, not by the exercise of the legislative power of the State as between it and its municipality, but by a judicial decree in a suit to which the city was not a party.

And if the proceedings which purported to vest title in the Oakland Water Front Company were held ineffectual for the same reason, then the latter company would find the foundation of its title swept away in a suit to which it also was not a party.

This is not an action of ejectment or of trespass quare clausum, but a bill in equity, and the familiar rule in equity, as we have seen, is the doing of complete justice by deciding upon and settling the rights of all persons materially interested in the subject of the suit, to which end such persons should be made parties.

We are constrained to conclude that the city of Oakland and the Oakland Water Front Company are so situated in respect of this litigation that we ought not to proceed in their absence.

When, heretofore, the city of Oakland applied to be made a co-complainant herein, the question of parties was necessarily suggested, although that application was such, and presented at such a stage of the case, that the court was neither called on to, nor could properly, deal with the general subject. As original jurisdiction only subsisted in that the State was party, and the moving party, (Eleventh Amendment; Hans v. Louisiana, 134 U.S. 1,) the motion of the city was denied. But we at the same time granted leave to the city to file briefs, accompanied by such maps and documents illustrative of its alleged title as it might be advised. The matter was thus left to the consideration of counsel as to whether indispensable or necessary parties had not been joined, while if the case was permitted to go to a hearing the court would then be able to dispose of it understandingly. We may add, that even if reference could be made to the 47th rule in equity by way of analogy, that rule does not apply when indispensable parties are lacking, and that in respect of necessary parties the cause may or may not be proceeded in without them, as the court may determine in the exercise of sound discretion. We have no hesitation in holding that when an original cause is pending in this court to be disposed of here in the first instance and in the exercise of an exceptional jurisdiction, it does not comport with the gravity and finality which should characterize such an adjudication to proceed in the absence of parties whose rights would be in effect determined, even though they might not be technically bound in subsequent litigation in some other tribunal.

This brings us to consider what the effect would be if the Oakland Water Front Company and the city of Oakland were made parties defendant. The case would then be between the State of California on the one hand and a citizen of another State and citizens of California on the other. Could this court exercise original jurisdiction under such circumstances?

By the first paragraph of section two of article III of the Constitution it is provided that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; ... 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 ..." And by the second clause 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 ..." The language, "in all cases in which a State shall be party," means in all the cases above enumerated in which a State shall be a party, and this is stated expressly when the clause speaks of the other cases where appellate jurisdiction is to be exercised. This second clause distributes the jurisdiction conferred in the previous one into original and appellate jurisdiction, but does not profess to confer any. The original jurisdiction depends solely on the character of the parties, and is confined to the cases in which are those enumerated parties and those only. Among those in which jurisdiction must be exercised in the appellate form are cases arising under the Constitution and laws of the United States. In one description of cases the character of the parties is everything, the nature of the case nothing. In the other description of cases the nature of the case is everything, the character of the parties nothing. Cohens v. Virginia, 6 Wheat. 264, 393.

By section 13 of the Judiciary Act of September 24, 1789, c. 20, 1 Stat. 73, it was provided "that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and except also between a State and citizens of other States or aliens, in which latter case it shall have original but not exclusive jurisdiction. In all the other cases above mentioned the Supreme Court shall have appellate jurisdiction... ." This was carried forward into section 687 of the Revised Statutes. Under the Constitution the cases in which a State may be a party are those between two or more States; between a State and citizens of another State; between a State and foreign States, citizens, or subjects; and between the United States and a State, as held in United States v. Texas, 143 U.S. 621. By the Constitution and according to the statute this court has exclusive jurisdiction of all controversies of a civil nature where a State is a party, but not of controversies between a State and its own citizens, and original but not exclusive jurisdiction of controversies between a State and citizens of another State or aliens.

In Pennsylvania v. Quicksilver Company, 10 Wall. 553, it was ruled that a State might bring an original suit in this court against a citizen of another State, but not against one of its own, and it has never been held that the court could take original jurisdiction of controversies between a State and citizens of another State and its own citizens.

In Georgia v. Brailsford, 2 Dall. 402, the State of Georgia filed a bill in equity in this court against Brailsford and others, copartners, who were aliens, and Spalding, a citizen of Georgia, against whom they had obtained judgment, to restrain payment thereof to Brailsford & Company, upon the ground that the bond on which judgment had been recovered belonged to the State, Spalding having refused to sue out a writ of error. The question of jurisdiction, as presented in the case at bar, does not appear to have been suggested. And the bill, without that question being considered, was finally dismissed, because the remedy of complainant was at law. 2 Dall. 415. An action at law was brought accordingly against Brailsford and others, but not against Spalding, and resulted in a verdict for the defendant. 3 Dall. 1.

In Florida v. Anderson, 91 U.S. 667, 676, a bill in equity was filed by Florida against citizens of Georgia, and the marshal of the United States for the Northern District of Florida was made a formal defendant by reason of having in his hands an execution at the suit of some of the other defendants. Jurisdiction was sustained on the ground that the marshal was merely a formal party against whom no relief was sought.

In Wisconsin v. Duluth, 96 U.S. 379, the bill was originally filed against the city of Duluth as a corporation of the State of Minnesota and the Northern Pacific Railroad Company, a corporation organized under an act of Congress, but was dismissed as to the latter before the final hearing, and no question of the jurisdiction of the court over the company was passed upon.

These and other cases were considered in Wisconsin v. Pelican Insurance Company, 127 U.S. 265, in which it was held that this court had not original jurisdiction of an action by a State upon a judgment recovered by it in one of its own courts against a citizen or corporation of another State for a pecuniary penalty for a violation of its municipal law.

It was asserted in argument that in respect of the clause extending the judicial power "to controversies between citizens of different States," it had been decided that it is within the power of Congress to confer upon the Circuit Courts of the United States jurisdiction over controversies between a citizen of one State and a citizen of another State joined with a citizen of the plaintiff's State, and that the same rule of construction must be applied to controversies between "a State and citizens of another State."

But the decisions referred to relate to the removal of cases from state courts and, prior to the act of March 3, 1875, c. 137, 18 Stat. 470, the uniform ruling was that all of the necessary parties on one side of the suit should be citizens of different States from those on the other; while under that act it has been always held that in order to justify the removal of a suit because of "a controversy which is wholly between citizens of different States," the whole subject-matter of the suit must be capable of being finally determined between them, and complete relief afforded as to the separate causes of action, without the presence of other persons originally made parties to the suit, and that when there was but one indivisible controversy between the plaintiff and the defendants the suit could not be removed by one of several plaintiffs or defendants. Whether the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 434, permits one of two or more defendants to remove any case which he could not have removed under earlier statutes is a question upon which no opinion has as yet been expressed by this court. Hanrick v. Hanrick, 153 U.S. 192; Cotton Press Company v. Insurance Company, 151 U.S. 368, 382; Torrence v. Shedd, 144 U.S. 527, 530.

It was also contended that the clause of the Constitution extending the judicial power to controversies "between citizens of different States" was intended to secure the citizen against local prejudice which might injure him if compelled to litigate his controversy with another in the tribunal of a State not his own, and that for the attainment of this object Congress could have vested the Circuit Court with original jurisdiction, although some of the defendants were citizens of the same State with the plaintiff; that a single Federal principle or ground of jurisdiction would be sufficient to the exercise of the power to confer such authority; and that the Federal ingredient existed here in the necessity for an impartial tribunal in suits to which a State is a party; and that, moreover, the jurisdiction in the case at bar did not rest exclusively on a controversy between the State of California and a citizen of another State, but that it was one arising under the Constitution in that the effect claimed by the State for the act of March 25, 1854, involves the decision of the question whether that act was a law impairing the obligation of a contract and therefore invalid, and also that a question under the same constitutional prohibition arises in regard to ordinances of the city of Oakland repealing the settlement ordinances of 1868 and all others purporting to dispose of the land in question.

We are aware of no case in which this court has announced the conclusion that power is conferred on Congress to authorize suits against citizens of other States joined with citizens of the same State as that of which plaintiff is a citizen to be originally commenced in, or to be removed to, the Circuit Courts, as arising under the Constitution on the ground indicated, where there is no separable controversy or the citizens of plaintiff's State are indispensable parties, but we are not called on to consider that question, or whether any Federal question is involved, since the original jurisdiction of this court in cases between a State and citizens of another State rests upon the character of the parties and not at all upon the nature of the case.

If, by virtue of the subject-matter, a case comes within the judicial power of the United States, it does not follow that it comes within the original jurisdiction of this court. That jurisdiction does not obtain simply because a State is a party. Suits between a State and its own citizens are not included within it by the Constitution; nor are controversies between citizens of different States.

It was held at an early day that Congress could neither enlarge nor restrict the original jurisdiction of this court, Marbury v. Madison, 1 Cranch, 137, 173, 174, and no attempt to do so is suggested here. The jurisdiction is limited and manifestly intended to be sparingly exercised, and should not be expanded by construction. What Congress may have power to do in relation to the jurisdiction of Circuit Courts of the United States is not the question, but whether, where the Constitution provides that this court shall have original jurisdiction in cases in which the State is plaintiff and citizens of another State defendants, that jurisdiction can be held to embrace a suit between a State and citizens of another State and of the same State. We are of opinion that our original jurisdiction cannot be thus extended, and that the bill must be dismissed for want of parties who should be joined, but cannot be without ousting the jurisdiction.

Bill dismissed.

MR. JUSTICE FIELD concurring.

It is greatly to be regretted that the controversies between the State of California, the Southern Pacific Railway Company, and the city of Oakland cannot now, in view of the limited character of the original jurisdiction of the Supreme Court of the United States, be heard, determined, and settled by this court, for those controversies will be a fruitful source of disturbance and vexation to the interests of the State until they are thus determined and settled. But, from the views of the court expressed in its recent decision, proceedings for such determination and settlement must find their commencement in the courts of the State, and can only reach this court from their decision upon appeal or writ of error. And the sooner proceedings are taken to reach that disposition of the controversies the earlier will be their final settlement.

MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE BREWER, 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, 491, 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 period 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 upon 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 accomplish the ends for which the jurisdiction was given."

After observing that it was the duty of the court to mould 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 of 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 record, 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 reëxamined 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, entrusted with jurisdiction where sovereignties are concerned, and with power to prescribe its own mode of proceeding, to do injustice rather 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 those 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 admitted 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 claim 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 its 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, Osborn v. Bank of the United States, 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 these 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.