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States versus Nation, and the Supreme Court

Published online by Cambridge University Press:  02 September 2013

Oliver P. Field
Oliver P. Field
Affiliation:
University of Minnesota
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Extract

The Supreme Court of the United States has been as impartial an umpire in national-state disputes as one of the members of two contending teams could be expected to be. This is not to impugn the wisdom or the fairness of the Supreme Court, but it is to say that the Supreme Court has been partial to the national government during the past one hundred and forty-four years of our experience with a federal system in the United States. The states, as members of the federal system, have had to play against the umpire as well as against the national government itself. The combination has long been too much for them.

Type
American Government and Politics
Information
American Political Science Review , Volume 28 , Issue 2 , April 1934 , pp. 233 - 245
Copyright
Copyright © American Political Science Association 1934

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References

1 7 Wall. 700 (1868).

2 231 U.S. 559 (1911).

3 Stearns v. Minnesota, 179 Minn. 223 (1900).

4 In Bates, and Field, , State Government, p. 18Google Scholar, an intimation to the contrary is to be found, but later reflection, stimulated by an analysis of the problem furnished me by Professor Arnold J. Lien, has convinced me that the earlier comment was unsound.

5 Constitution of the United States, Art. III, sec. 2. The jurisdiction over suits between the states is also provided for in this section.

6 United States v. Texas, 143 U.S. 621 (1892).

7 Kansas v. United States, 204 U.S. 331 (1906). The federal government may, however, consent to such suit. Minnesota v. Hitchcock, 185 U.S. 373 (1901).

8 This phase of judicial review is discussed in greater detail by the writer in a forthcoming book on the effect of an unconstitutional statute. Attorneys-general may appear in private cases, but often do not ask leave to intervene.

9 2 Dallas, 419 (1793).

10 Due to the emphasis later given to the phraseology of this amendment, it is reproduced here for reference. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

11 Hans v. Louisiana, 134 U.S. 1 (1890).

12 Gunter v. Altantic Coast Line Railroad Co., 200 U.S. 273 (1906): “Although a state may not be sued without its consent, such immunity is a privilege which may be waived, and hence, where a state voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibition of the Eleventh Amendment.”

13 Beers v. Arkansas, 20 Howard, 527 (1858); Railway Company v. Tennessee, 101 U.S. 357 (1879).

14 Stanley v. Schwalby, 162 U.S. 255 (1896); may not try title of federal government to land.

15 Moore v. Dempsey, 261 U.S. 86 (1923). The constitutionality of the federal statute permitting this was sustained in Frank v. Mangum, 237 U.S. 209 (1914).

16 Tarble's Case, 13 Wallace, 397 (1872); state courts may not issue writ to federal military officer to test legality of enlistment.

17 Pomi v. Fessenden, 258 U.S. 254 (1922).

18 United States Code (1926), Title 28, sec. 379, forbids such injunctions to issue except in bankruptcy cases.

18a Rigg, v. Johnson County, 6 Wallace, 166 (1867).

19 The instances of interference are legion in the field of public utility regulation and in taxation.

20 See the fate of the “Three Judge Rule” of United States Code (1926), Title 28, secs. 380–89, as described in 38 Yale L. Jour. 955Google Scholar.

21 An important case on removal is Gaines v. Fuentes, 92 U.S. 10 (1875). The technical law on removal, mostly district court law in fact, is in hopeless confusion.

22 Terral v. Burke Constr. Co., 257 U.S. 529 (1922).

23 Tennessee v. Davis, 100 U.S. 257 (1879). See a recent case stating rules of pleading on such a removal, Colorado v. Symes, 286 U.S. 510 (1932).

24 An ineffectiveness of the Conformity Act. See 36 Yale L. Jour. 853Google Scholar.

25 16 Peters, 1 (1842), holding that on matters of general commercial jurisprudence the federal courts determine for themselves the rule to follow. See the criticism of Swift v. Tyson in Willoughby, Constitutional Law (2d), secs. 836–37; 38 Yale L. Jour., 88Google Scholar. A review of the general principles governing federal court application of state law is to be found in Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). More recent discussions of the question are to be found in Concordia Insurance Co. v. School Dist., 282 U.S. 545 (1931); Herron v. So. Pac. Co., 283 U.S. 383 (1931).

26 It often takes several years before state practice is really changed to conform to Supreme Court decisions on state powers, partly because a decision that a statute of one state is invalid does not automatically or immediately strike down similar statutes in other states.

27 It seems commonly to be overlooked that statute now provides for the appellate jurisdiction of the Supreme Court, and that a repeal of the statute would leave to the state courts final jurisdiction over questions of federal constitutional law arising in the state courts and not removed under the removal statutes. Appellate jurisdiction on this head is subject to “regulation” by Congress. Important early cases: Cohens v. Virginia, 6 Wheaton, 264 (1821); Martin v. Hunter's Lessee, 1 Wheaton, 304 (1816).

28 226 U.S. 1 (1912).

29 The Civil War acts seem to have been couched in more mandatory terms. See In re Griner, 16 Wis. 447 (1863); Druecker v. Solomon, 21 Wis. 628 (1867). State courts have divided over the question whether the state could aid the national government by condemning land for it. Trombley v. Humphrey, 23 Mich. 471 (1871), denying power; Gilmer v. Lime Point, 18 Cal. 229 (1861). See Gilbert v. Minnesota, 254 U.S. 325 (1920), that state may aid in carrying out national war policies. Also Houston v. Moore, 5 Wheaton, 1 (1920), state statute punishing refusal to obey President's order valid. Robertson v. Baldwin, 165 U.S. 275 (1897), held that federal statute valid which gave state justice of peace power to issue warrant of arrest for deserting seaman. See, for general discussion, “State Administration of Federal Laws,” 48 L.R.A., 33Google Scholar; Chamberlain, , “Enforcement of Volstead Act Through State Agencies,” 10 A.B.A. Jour., 391Google Scholar; 1 Willoughby, , Constitutional Law (2d ed), 209Google Scholar. See discussion in Willoughby of United States Code (1926), sec. 78, placing duty on clerk of state court to prepare copies of papers in removal cases.

30 Game wardens have occasionally been commissioned by both state and national governments. Some interesting material on the place of the states is to be found in Holcombe, , “The States as Agents of the Nation,” 1 Southwestern Political Science Quarterly, 307Google Scholar.

31 Ex parte Willman, 277 Fed. 819 (D.C. Ohio, 1921).

32 Ohio v. Thomas, 173 U.S. 276 (1898); state game laws held not to apply to federal officers on national forest reservation. Hunt v. United States, 278 U.S. 96 (1928).

33 State v. Burton, 41 R.I. 1 (1918), the court saying that in the absence of military urgency the ordinary traffic rules would apply to federal officers.

33a Johnson v. Maryland, 254 U.S. 51 (1920).

34 243 U.S. 389 (1917).

35 Nahant v. United States, 136 Fed. 273 (C.C.A. 1st, 1905); Same, 153 Fed. 520 (C.C.A. 1st, 1907); Bradford v. United States, 23 F. (2d) 453 (C.C.A.1st, 1927).

36 Missouri ex rel. Camden County v. Union Elec. Light and Power Co., 42 F. (2d) 692 (D.C. Mo., 1930).

37 1 Willoughby, , Constitutional Law (2 ed), 179–180Google Scholar. It used to be thought that land in a state could not be taken without the consent of the state, but it is now established that the power of the federal government to take land by condemnation is not restricted to the consent provision governing purchase. Art. I, sec. 8, cl. 3. See Kohl v. United States, 91 U.S. 367 (1876); Van Brocklin v. Tennessee, 117 U.S. 151 (1886).

38 See Spokane County v. United States, 279 U.S. 80 (1929).

39 199 U.S. 437 (1905). The whole subject of federal-state relations and the implications of the South Carolina case are discussed in Cohen, and Dayton, , “Federal Taxation of State Activities,” 34 Yale L. Jour., 704Google Scholar. See North Dakota v. Olson, 33 F. (2d) 848 (C.C.A. 8th, 1929), holding State Bank of North Dakota liable for tax on capital stock.

40 Clallam County v. United States, 263 U.S. 341 (1923); United States Spruce Corporation not taxable by state. The case distinguishes the private profit type of corporation. Shares of stock in a national bank are taxable by virtue of an act of Congress permitting state taxation.

41 California v. Central Pac. R.R., 127 U.S. 1 (1888). But if a private profit organization, the property of the corporation is subject to state taxation. Railroad Company v. Peniston, 18 Wall. 5 (1873).

42 California v. Central Pac. R.R., note 41, supra.

43 220 U.S. 107(1911).

44 Veazie Bank v. Fenno, 8 Wallace, 533 (1869).

45 4 Wheaton, 316 (1819). Federal Land Bank mortgages are exempt. Federal Land Bank v. Crossland, 261 U.S. 374 (1923).

46 See Rev. Stats. Sec. 5219. The constitutionality of such permission has never been settled, having been assumed rather than decided.

47 Board of Trustees of Univ. of Ill. v. United States, 53 Sup. Ct: Rep. 509 (1933).

48 See the comments in Osborn v. Bank, 9 Wheaton, 738 (1824), on state restrictions on contractor supplying goods to federal government.

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