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while in its possession and used in governmental acts cannot be libeled by a Court of Admiralty. That a foreign government has no longer possession of the vessel it may be libeled for the negligence of its crew while in such government's employ, has been held in a single case.

The avowal of the foreign government, a certificate from its ambassador or a suggestion by the Attorney General of the United States or his representative 10 that the ship is in use by it as a governmental act is conclusive upon the court.

A court will not entertain a suit which requires the determination of the validity of the act of a foregn government performed in its sovereign capacity within its own territory, although such government is not a party defendant.11 Thus the Federal courts have refused to take jurisdiction: of an action for assault and false imprisonment by the soldiers of a foreign government.12 Of an action against a corporation chartered by one of the states of the Union because of its instigating soldiers of a foreign government to seize the plaintiff's property.13 Of a suit to impress a lien upon a fund which had been wrongfully paid to citizens of the United States by a foreign government in violation of a contract by such government.1

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But the courts have jurisdiction to adjudicate upon the validity of the title to property which it is alleged has been condemned and sold by a foreign government recognized by the United States 15 although the action of the authorities of such foreign government must be accepted as the rule of decision.16

A court has jurisdiction to decide the title to land held by an individual in territory over which the United States exercises de

7 The Maipo, 252 Fed. 627; M. Baars & Co. v. The Adriatic, C. C. A., March, 1919.

8 The Adriatic, C. C. A., 258 Fed. 902.

9 The Florence H., 248 Fed. 1013. 10 The Florence H., 248 Fed. 1013.

11 Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. ed. 456, affirming C. C. A., 65 Fed. 577, 38 L.R.A. 405; Am. Banana Co. v. United Fruit Co., 213 U. S. 347, 29 Supt. Ct. 511, 53 L. ed. 826, 16 Ann. Cas. 1047, affirming C. C. A., 166

Fed. 261; Hewitt v. Speyer, C. C.
A., 250 Fed. 367; Ricard v. Am.
Metal Co., 246 U. S. 304.

12 Underhill V. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. ed. 456.

13 Am. Banana Co. V. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. ed. 826.

14 Hewitt v. Speyer, C. C. A., 250 Fed. 367.

15 Oetjen v. Central Leather Co., 246 U. S. 297, Ricard v. Am. Metal Co., 246 U. S. 304.

16 Ibid.

facto jurisdiction, although negotations are pending by the United States and a foreign government to determine which of them has the right of sovereignty thereover.17

§ 103. Liability of a State to a suit by the United States. A State may be sued by the United States in any proper case, without consenting to the jurisdiction.1 Such consent was given by the State when it was admitted into the Union, upon an equal footing with the other States.2

§ 104. Liability of a State to a suit by another State. The Constitution provides that "the judicial power shall extend to Controversies between two or more States,

and between a State, and the Citizens thereof, and foreign States, Citizens, or Subjects."1 The Eleventh Amendment has not taken away the liability of one of the United States to a suit by another such State or a foreign State. Such jurisdiction, however, is confined to controversies concerning rights affecting property; not to those merely affecting political rights.2 It includes controversies concerning boundaries between different States, even though the complainant claim no title other than that of sovereignty and jurisdiction over the lands in question.3 For, in this country, where feudal tenures are abolished, in cases of escheat the State takes the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction." If, however, in a bill which prays relief against a threatened invasion of rights purely political in their nature, a threatened injury to property be stated only by way of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief;" and "this matter

17 Cordova v. Grant, 248 U. S. 413.

§ 103. 1 U. S. v. Texas, 143 U. S. 621, 36 L. ed. 285; Kansas v. U. S., 204 U. S. 331, 51 L. ed. 510.

2 U. S. v. Texas, 143 U. S. 621, 646, 36 L. ed. 285, 293.

$104. 1 Art. III, § 2.

2 Cherokee Nation v. Georgia, 5 Pet. 1, 8 L. ed. 25; Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721;

Georgia v. Grant, 6 Wall. 241, 18 L. ed. 848.

3 Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233; Missouri v. Iowa, 7 How. 660, 12 L. ed. 861; Florida v. Georgia, 17 How. 478, 15 L. ed. 181; Alabama v. Georgia, 23 How. 505, 16 L. ed. 556; Virginia v. West Virginia, 11 Wall. 39, 20 L. ed. 67.

4 Georgia v. Stanton, 6 Wall. 50, 78, 18 L. ed. 721, 724.

of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief:" the bill will be dismissed.5

A State may sue another State for an injunction against the diversion of the waters of a stream flowing through both which unreasonably interferes with their use for irrigation, and to enjoin a public nuisance affecting a large number of the complainant's citizens, such as the pollution of the water. A State cannot sue another State or the Government and Health officials of the latter to enjoin their enforcement of unreasonable quarantine regulations which interfere with commerce between the two States. A State cannot obtain an order or judgment compelling a governor of another State to return a fugitive from labor or justice. A suit cannot be maintained when brought by one State against another to enforce the payment by the latter of its bonds originally held by citizens of the former State, and assigned by them to it solely for the purpose of collection.10 But a State which owns absolutely the bonds of another State, although it has received them as a gift after they have been due, may sue the latter and recover a decree adjudging the amount due and directing the foreclosure and sale of shares of corporate stock owned by the defendant and mortgaged as security for the bonds.11 A State may sue another State, and a municipal cor

5 Georgia v. Stanton, 6 Wall. 50, 77, 18 L. ed. 721, 725.

6 Kansas v. Colorado, 206 U. S. 46, 51 L. ed. 956.

7 Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497; s. c., 200 U. S. 496, 50 L. ed. 572.

8 Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347; Kansas v. Colorado, 206 U. S. 46, 86, 51 L. ed. 956, 970. 9 Kentucky v. Dennison, 24 How. 66, 16 L. ed. 717.

10 New Hampshire v. Louisiana, 108 U. S. 76, 27 L. ed. 656.

11 South Dakota v. North Carolina, 192 U. S. 286, 48 L. ed. 448. Before the day fixed for the sale, the defendant paid the amount of the plaintiff's claim in full, namely,

$27,400, with costs. The Committee of the North Carolina bondholders subsequently offered, to the Governor of South Dakota, other bonds of North Carolina, which with principal and interest aggregated $150,000. Governor Elrod wrote, in answer: "Your kind offer is declined, for the reason that it seems to me to be against public policy and good conscience." On January 8th, 1907, he recommended the passage of an act returning the money received from South Carolina, saying: "Morally, we have no right to one cent of this money, and we ought to be brave enough and true enough to give it back. This money was clearly intended for our university. She

poration of the latter, for an injunction against the excessive and unreasonable discharge of sewage into a river, which poisons the water supply of the inhabitants of the plaintiff and injuriously affects that portion of the bed of the river which lies within the plaintiff's territory. 12 A State may sue another State, to prevent the latter from authorizing the diversion of the waters of a stream flowing through both States, so as to deprive the plaintiff's inhabitants of the water, to which they were entitled;

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It is clear to me that our State ought not to become a collecting agency, neither ought it to forget the doctrine of 'comity between States.' The decision in the case of the State of South Dakota v. the State of North Carolina opens up endless opportunities for States to deal in the bonds and other obligations of sister States. It is not possible to exaggerate the scandals, the corruption of Legislatures and State officials, and the possibilities of graft which would follow if States should start to trade on the power which the decision gives them. No State ought to be endowed with the power to speculate upon unenforceable claims of individuals against other States. Under the Federal Constitution individuals cannot sue States on such bonds, so the holder gives or sells them to us, and we can sue the State that issued the bonds. The decision in

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the above entitled case hangs entirely on the fact that South Dakota was the bona fide owner of the bonds in question. There is no magic in the fact that she got them as a gift. She would be equally the bona fide owner if she had bought them." The Sun, January 15th, 1907. Mr. Justice Brewer said: "I can but think her conduct far above that of the State of South Dakota, which willingly took a donation of bonds with the idea of collecting them from a sister State, in disregard of that generous feeling which should control all the States of the Union; and I do not wonder that the Governor of South Dakota, who retired from office last January, in his final message recommended that the Legislature appropriate the full amount of the money received and tender it back to North Carolina!'' Report, p. 171, Mohonk Conference, A. D. 1907.

12 Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497; s. c., 200 U. S. 496, 50 L. ed. 572; where the bill was dismissed without prejudice after a trial of the issues of fact.

13 Kansas v. Colorado, 185 U. S. 125, 46 L. ed. 838; where the bill was eventually dismissed, without prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that through a material increase in the depletion of the waters of the Ar

and where the navigability of the stream is not affected, the United States has no right of intervention because of its alleged duty of legislating for the reclamation of arid lands.14 A State cannot sue another State, to enjoin the enforcement of quarantine regulations, which impose unreasonable restraint upon commerce between ports of the two States.15 A tribe of Indians domiciled within the borders of the United States does not constitute a foreign State within the meaning of the Constitution.16

§ 105. Liability of States to suits by private persons. Under the Constitution of the United States as originally adopted, it was provided that the judicial power of the United States should extend to controversies "between a State and Citizens of another State." This was held to subject a State to liability to an action by a citizen of another State. The decision was opposed to the opinions of Marshall and others, as expressed in the conventions which ratified the Constitution,3 and was repugnant to the feelings of the people. Consequently, the Eleventh Amendment was adopted. This enacted that "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.'

A State cannot, without its consent, be sued by one of its own citizens, even on a cause of action arising under the Constitution and laws of the United States. It has been suggested, but not decided, that, in a case arising under the Fourteenth Amendment, the inhibition of the Eleventh Amendment may not

kansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two States resulting from the flow of the river. Kansas v. Colorado, 206 U. S. 46, 117, 118, 51 L. ed. 956, 983.

14 Kansas v. Colorado, 206 U. S. 46, 86, 51 L. ed. 956, 970.

15 Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347. Supra, § 3.

16 Cherokee Nation v. Georgia, 5 Pet. 1, 8 L. ed. 25.

Fed. Prac. Vol. I-42

§ 105. 1 Art. III., § 2. The liability of a State to suit by the United States or another State is described, supra, § 3.

2 Chisholm v. Georgia, 2 Dall. 419, 1 L. ed. 440.

3 See Elliott's Debates. In Hans Louisiana, 134 U. S. 1, Bradley, J., speaking for the court, said that Chisholm v. Georgia was erroneously decided.

4 Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842; North Carolina v. Temple, 134 U. S. 22, 33 L. ed. 849.

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