NOTE. Two Effects of the Decision in Georgia v. Pennsylvania Railroad. The recent Supreme Court decision in Georgia v. Pemzylvania Railroad

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1 June, 1945 NOTE Two Effects of the Decision in Georgia v. Pennsylvania Railroad The recent Supreme Court decision in Georgia v. Pemzylvania Railroad 1 raises at least two pertinent Constitutional Law questions. In that case, the State of Georgia moved for leave to file an amended bill of complaint in the Supreme Court against the Pennsylvania Railroad and nineteen other northern and southern railroad companies. Georgia sought to bring this suit under Article III, section 2, of the Constitution which gives the Supreme Court jurisdiction over controversies to which a state is a party. 2 In her complaint, Georgia alleged that a conspiracy existed among the railroads, resulting in unjust and discriminatory rates to the injury of the people and ports of Georgia. The rates, which were the ultimate product of the conspiracy and which, according to Georgia's complaint, caused her harm, had been filed with the Interstate Commerce Commission in accordance with the provisions of the Interstate Commerce Act I and were in themselves lawful, there never having been any determination otherwise by the Commission. Georgia sought to sue not merely in the capacity of a shipper and consignee of goods in connection with the ownership of state institutions, but also as parens patrice on behalf of the people of Georgia who were injured, according to the allegations of the complaint, by the alleged discriminatory rates said to result from the conspiracy. Georgia's prayer was for damages and injunctive relief against the conspiracy per se. She alleged that the Commission had no power to give relief against such a conspiracy. In a five-four decision, 4 the Supreme Court upheld Georgia's contention and granted her motion. Two of the Constitutional Law issues with which the Court dealt were: i. Under what circumstances may a state bring an original suit in the Supreme Court under Article III, section 2, of the Constitution? and, U. S. -, 65 Sup. Ct. 716, 89 L. Ed. (Adv. Ops.) 758 (1945). 2. In Article 3, section 2, clauses I and 2, read: "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 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 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. "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." STAT. 380 (1887) as amended, 49 U. S. C. A Mr. Justice Douglas delivered the opinion of the Court. Mr. Chief Justice Stone, Mr. Justices Roberts, Frankfurter, and Jackson dissented. 324 U. S. -, 65 Sup. Ct. 716, 89 L. Ed. (Adv. Ops.) 758 (i945). Petition for rehearing denied April 23, 1945, 65 Sup. Ct. aoi8, 89 L. Ed. (Adv. Ops.) 1003 (1945). (442)

2 NOTE 2. May a suit be brought in a court to enjoin a conspiracy with respect to rates among carriers subject to the jurisdiction of the Interstate Commerce Commission without first having the Commission pass upon the rates involved, when the gist of the complaint is that the conspiracy resulted in discriminatory rates? In other words, is this the kind of case which must be handled in the first instance by an administrative tribunal, namely, the Interstate Commerce Commission. I The majority upheld the right of Georgia to bring the suit both in her proprietary capacity and as parens patrie acting on behalf of her citizens. In its opinion, the Court stated flatly, "In determining whether a State may invoke our original jurisdiction in a dispute which is justiciable... the interests of the State are not confined to those which are proprietary; they embrace the so-called 'quasi-sovereign' interests which in the words of Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, are 'independent of and behind the titles of its citizens in all the earth and air within its domain.'" 5 Such an unqualified assertion is not a true statement of the general rule of law laid down by the Court in its previous decisions. The mere fact that a state is a party of record to a suit is not in itself sufficient justification to warrant the Court's taking original jurisdiction under Article III of the Constitution. The Court, speaking on this point, has in the past said: "We are of the opinion that the words in the Constitution conferring original jurisdiction on this court, in a suit 'in which a State shall be a party,' are not to be interpreted as conferring such jurisdiction in every cause in which the State-elects to make itself strictly a party plaintiff of record and seeks not to protect its own property, but only to vindicate the wrongs of some of its people or to enforce its laws or public policy against wrongdoers, generally." 6 This principle, that a state must have a direct interest in the suit in order to invoke the Court's original jurisdiction, has been reiterated numerous times. 7 The Court looks "beyond the mere-legal title of the complaining State to the cause of action asserted and to the nature of the State's interest." s 5. Id. at -, 65 Sup. Ct. at 721, 89 L. Ed. (Adv. Ops.) at Oklahoma v. Atchison, Topeka & Santa Fe Ry., 220 U. S. 277, 289, 31 Sup. Ct. 434, 437, 55 L. Ed. 465, 469 (1911). 7. Massachusetts v. Missourl, 308 U. S. i, 6o Sup. Ct. 39, 84 L. Ed. 3 (1939); Oklahoma v. Cook, 304 U. S. 387, 58 Sup. Ct. 954, 82 L. Ed (1938) ; Oklahoma v. Atchison, Topeka & Santa Fe Ry., :220 U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465 (1911) ; South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448 (1904) ; Louisiana v. Texas, 176 U. S. I, 20 Sup. Ct. 251, 44 L. Ed. 347 (19oo) ; New Hampshire v. Louisiana, 1o8 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656 (1882) ; Florida v. Anderson, 91 U. S. 667, 23 L. Ed. 290 (1875) ; Texas v. White, 7 Wall. 700, ig L. Ed. 227 (U. S. 1868); Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 14 L. Ed. 249 (U. S. 1851); Fowler v. Lindsay, 3 Dall. 410, I L. Ed. 658 (U. S. 1799); New York v. Connecticut, 4 Dall. i, I L. Ed. 715 (U. S. 1799). 8. Oklahoma v. Cook, 304 U. S. 387, 393, 58 Sup. Ct. 954, 957, 82 L. Ed. 1416, 1419 (1938). It should be pointed out here, however, that even though a state may have a direct interest in the suit, the general Conflict of Laws rule that the courts of one state will not enforce the penal laws of another state has been applied with full vigor to the jurisdiction of the Supreme Court and limits it to those suits which are civil in nature. Such a provision was incorporated in the Judiciary Act of 1789, 1 STAT. 8o (1789), 28 U. S. C. A. 34I; Chisholm v. Georgia, 2 Dall. 419, I L. Ed. 44o (U. S. 1793) ; Justice Iredell's opinion, id. at 431-2, I L. Ed. at 445. Wisconsin v. Pelican Life Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239 (1888) ; followed in Oklahoma ex rel. West v. Gulf, Colorado & Santa Fe Ry., 220 U. S. 290, 31 Sup.

3 444 UNIVERSITY OF PENNSYLVANIA LAW REVIEW Suits brought by the states in their representative capacity, like suits brought to enforce a direct interest of a state, 9 have varied greatly with respect to the nature of the complaint and the relief requested. 10 Such suits have invariably, with the exception of one class of cases, been dismissed by the Court without a consideration of their merits. Until the decision in the instant case, a state could not, as a general rule, bring an original action in the Supreme Court when no direct or proprietary interest of the state was involved. Moreover, where individuals have access to the courts, their state cannot, even with the individuals' consent, "make their case its case and compel the offending State and its authorities to appear as defendants in an action brought in this court." 11 Mr. Justice Douglas, speaking for the majority in the instant case, cites a number of cases purporting to support the position it has taken in reversing what had been a well-established rule of law. These cases are, in the opinion of the writer, clearly distinguishable from the instant case upon the special ground that they involved a natural resource of the state bringing the suit. It is a traditional rule that a state has a quasi-property interest in its natural resources. "The State has a property interest in running water naturally flowing into it and in the public waters and air within its boundaries.... If the running water is withheld, its property is taken. If the public waters or the air is polluted, its territorial integrity is invaded." 12 The term "natural resources" has been held to include Ct. 437, 55 L. Ed. 469 (1911). See also United States v. California, 297 U. S. 175, 56 Sup. Ct. 421, 8o L. Ed. 567 (936) ; Kansas v. Colorado, 2o6 U. S. 46, 27 Sup. Ct. 655, 5i L. Ed. 956 (1907) ; Minnesota v. Northern Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499 (9o2); California v. Southern Pacific Co., 157 U. S. 229, 15 Sup. Ct. 59i, 39 L. Ed. 683 (1895) ; Postal Telegraph Cable Co. v. Alabama, I55 U. S. 482, i5 Sup. Ct 192, 39 L. Ed. 231 (1894). 9. Virginia v. West Virginia, 2o6 U. S. 290, 27 Sup. Ct. 732, 5i L. Ed. io68 (I9o7) (an original suit brought by Virginia against West Virginia for money damages) ; Alabama v. Burr, 115 U. S. 413, 6 Sup. Ct. 8I, 29 L. Ed. 435 (1885) (suit at law brought by Alabama to obtain indemnification for a pecuniary liability she incurred by reason of alleged fraudulent acts of the defendant. There was no question as to the original jurisdiction of the Supreme Court in this case, the defendant's demurrer being sustained because the facts in the declaration were not sufficient to constitute a cause of action against him) ; Florida v. Anderson, 9i U. S. 667, 23 L. Ed. 290 (1875) (an original suit to have a sale of property set aside). In allowing Florida to bring such a suit, the Court said, "The first question which naturally presents itself is, whether the State of Florida has such an interest in the subject-matter in the suit, and in the controversy respecting the same, as to give it a standing in court... the State has a direct interest in the subject-matter (the railroad in question) by reason of holding (as it does) the four millions of bonds which are a statutory lien upon the road. In the next place, the interest of the State in the internal-improvement fund is sufficiently direct to give it a standing in court, whenever the interests of that fund are brought before a Court for inquiry.... Now, to protect its interests, it is competent for the State, seeking equitable relief against the citizens of another State, to file an original bill in this court." Id. at 675-6, 23 L. Ed. at 297. Texas v. White, 7 Wall. 7oo, ig L. Ed. 227 (U. S. 1868) (Texas brought an original suit in the Supreme Court to assert her title to bonds) ; Pennsylvania v. The Wheeling Bridge Co., 13 How. 518, i4 L. Ed. 249 (U. S. 185) (suit for an injunction against the erection of a bridge by a private company across the Ohio river). io. Oklahoma v. Cook, 304 U. S. 387, 58 Sup. Ct. 954, 82 L. Ed. 416 (0938) (a suit to enforce the statutory liability of shareholders) ; Oklahoma v. Atchison, Topeka & Santa Fe Ry., 220 U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465 (i91) (a suit for an injunction to restrain the charging of alleged excessive railroad rates) ; Louisiana v. Texas, 176 U. S. i, 20 Sup. Ct. 251, 44 L. Ed. 347 (i9oo) (suit for an injunction to restrain the enforcement of quarantine regulations) ; New Hampshire v. Louisiana, 1o8 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656 (883) (suit to enforce a state to pay its debts to individual creditors). II. Louisiana v. Texas, 176 U. S. I, 20 Sup. Ct 251, 44 L. Ed. 347 (i9oo). 12. Pennsylvania v. West Virginia, 262 U. S. 553, 609 n. 4, 67 L. Ed. 1117, 1137 n. 4, 43 Sup. Ct. 658, 669 n. 6 (1923).

4 NOTE among other things, the wild game within a state, 1 " and the fish, oysters, and clams within the waters of a state.1 4 In Georgia v. Tennessee Copper Co., 15 a case cited in the majority opinion, the State of Georgia filed a bill in equity in its capacity as quasisovereign to enjoin the defendant copper company from discharging noxious gas from its Tennessee plants across the state line into Georgia. Georgia alleged that this gas was causing a wholesale destruction of the forests, orchards, and crops in the State. The Court, in deciding that the injunction would issue, treated the injury to the State merely as a "makeweight," and, in an opinion written by Mr. Justice Holmes, said: "The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a: State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power... "It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source." Most of these cases came up regarding the constitutionality of State wild game legislation. Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 6oo, 4o L. Ed. 793 (896). For an interesting discussion of the historical development of the doctrine that a State possesses a property interest in the wild game within its borders, see Mr. Justice White's opinion id. at 521, 6 Sup. Ct. at 6ol, 4o L. Ed. at 794. LaCoste v. Dept. of Conservation of State of Louisiana, 263 U. S. 545, 44 Sup. Ct. 186, 68 L. Ed. 437 (1924) ; Carey v. South Dakota, 250 U. S. 118, 39 Sup. Ct. 403, 63 L. Ed. 886 (191g) ; N. Y. ex rel. Kennedy v. Becker, 241 U. S. 556, 36 Sup. Ct. 705, 6o L. Ed (1916) ; Patsone v. Pennsylvania, 232 U. S. 138, 34 Sup. Ct. 281, 58 L. Ed. 539 (1914) ; N. Y. ex rel. Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75 (908) ; Ward v. Race Horse, 163 U. S. 5o4, 16 Sup. Ct. 1076, 41 L. Ed. 244 (1896); United States v. Samples, 258 Fed. 479 (W. D. Mo. 1gig) (and cases cited therein); Harper v. Gallaway, 58 Fla. 255, 51 So. 226 (igio) (and cases cited therein); Ex parte Baily, 55 Cal. 472, 101 Pac. 441 (19o9) ; Ex parte Maier, 103 Cal. 476, 37 Pac. 402 (1894) ; Sherwood v. Stephens, 13 Idaho 399, 9o Pac. 345 (1907) ; In re Eberle, 98 Fed. 295 (N. D. Ill. 1899); Magner v. People, 97 Ill. 320 (1881) ; American Express v. People, 133 Ill. 649, 24 N. E. 758 (189o) ; In re Schwartz, 119 La. 290, 44 So. 20 (1907); Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 362 (1899) ; State v. Rodman, 58 Minn. 393, 59 N. W. 1o98 (1894) ; Ex parte Fritz, 86 Miss. 210, 38 So. 722 (1905) ; State v. Heger, 194 Mo. 707, 93 S. W. 252 (igo6) ; People v. Doxtater, 75 Hun. 472, 27 N. Y. Supp. 481, aff'd., 147 N. Y. 723, 42 N. E. 724 (1895) ; Daniels v. Homer, 139 N. C. 219, 51 S. E. 992 (19o5) ; State v. Hume, 52 Ore. 1, 95 Pac. 8oS (19o8) (and cases cited therein) ; Achlen v. Thompson, 122 Tenn. 43, 126 S. W. 730 (19o9) ; State v. Niles, 78 Vt. 266, 62 Atl. 795 (I9o6). But see: State v. Saunders, ig Kan. 127 (1877) ; Territory v. Evans, 2 Idaho 634, 23 Pac. 115 (1890). 14. McGready v. Virginia, 94 U. S. 391, 24 L. Ed. 248 (1876) ; Martin v. Waddell, 16 Pet. 367, 1o L. Ed. 997 (U. S. 1842) ; State v. Thierault, 70 Vt. 617, 41 Atl (1898) ; Chambers v. Church, 14 R. I. 398 (1884) o6 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. io38 (i9o7). 16. Id. at 238, 27 Sup. Ct. at 61g, 51 L. Ed. at io45.

5 446 UNIVERSITY OF PENNSYLVANIA LAW REVIEW The decision of the Court in this case was based upon injury to the State's natural resources. Standing as it does upon that special ground, it is not authority for the position taken by the Court in the instant case. The other cases upon which the Court has relied in reaching its decision were also natural resources cases. The "water" cases involved suits for injunctions to restrain the discharging of sewage into the water of the complaining state, 1 7 a suit to restrain the diverting of an interstate river, 8 and a suit to restrain the use of ditches which allegedly caused a river outlet to flood the lands of the plaintiff state.' 9 Pennsylvania v. West Virginia 2 0 was a suit in equity brought by Pennsylvania and Ohio against West Virginia to enjoin the latter state from enforcing a state statute which, it was alleged, would curtail or cut off the flow of natural gas from West Virginia to the complaining states and would result in irreparable injury to the states' public institutions, government agencies, industries, and the health and comfort of their people. The Court gave a decree for the complainants. It is pertinent to point out here that even though the Court has allowed a state to sue in its quasi-sovereign capacity in cases involving its natural resources, it has expressly declared that this principle is not to be extended to permit suits brought by states to enforce the individual claims of their citizens. 2 ' The natural resources cases may be easily differentiated from the instant case in another respect. Each individual's interest in the state's natural resources is so infinitesimal that unless the state is allowed to sue in its capacity as quasi-sovereign when one of its natural resources is threatened, the controversy could not be settled unless all the individual citizens of the state were before the Court. The practical obstacle in the way of carrying out such a requirement is self-evident and needs no further elaboration. In the instant case and cases similar to it, this difficulty is not present. Each shipper has a separate interest in the outcome of the case substantial enough to be adjudicated by a court. Inasmuch as each individual has access to the courts and can bring such a suit in his own name if he so desires, there is no practical necessity for the state to bring such a suit for him. The language used by the Court in Oklahona v. Atchison, Topeka & Sante Fe Ry., 2 2 a case analogous to the instant case, clearly indicates the attitude the Court has had in the past regarding the point last mentioned. In that case, the State of Oklahoma sought to bring an original suit in the Supreme Court to enjoin the railroad from charging higher rates in Oklahoma than those charged in Kansas for the transportation of certain specified commodities. Oklahoma did not bring this suit as a shipper. Instead, she brought it in a representative capacity for the benefit of all her citizens who were shippers or who might, in the future, ship these commodities on the defendant's railroad. The Court denied Oklahoma the right to bring such a suit, saying, "If after Oklahoma became a State the company still charged the Kansas rates on local business in Oklahoma, and if those rates would 17. Missouri v. Illinois, 18o U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497 (i9o1) ; New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937 (921). 18. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956 (1923). 19. North Dakota v. Minnesota, 263 U. S. 365, 44 Sup. Ct. 138, 68 L. Ed. 342 (1923) U. S. 553, 43 Sup. Ct. 658, 67 L. Ed (1923). 21. North Dakota v. Minnesota, 263 U. S. 365, 376, 44 Sup. Ct. 138, 14o, 68 L. Ed. 342, 346 (1923) ; Oklahoma v. Cook, 304 U. S. 387, 394, 58 Sup. Ct 954, 957, 82 L. Ed. 1416, 1420 (938) U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465 (1911).

6 NOTE have been illegal under any state regulations, or were, in themselves, unreasonable and purely arbitrary, a controversy, in the constitutional sense, would have arisen between each shipper and the company, which could have been determined by suit brought by the shipper in the proper state court, or even in the proper Federal court, where the controversy, by reason of the grounds alleged by the shipper, was one of which the latter court, under the statutes regulating the jurisdiction of the Federal courts, could take judicial cognizance. But, plainly, the State, in its corporate capacity, would have no such interest in a controversy of that kind as would entitle it to vindicate and enforce the rights of a particular shipper or shippers, and, incidentally, of all shippers, by an original suit brought in its own name, in this court, to restrain the company from applying the Kansas rates, as such, to shippers generally in the local business of Oklahoma." 23 Clearly the Court in the instant case should have been controlled by the decision in the Oklahoma case. The factual situation presented by the two cases is similar, the only difference being that in the instant case, Georgia, in addition to suing in a representative capacity also sued as a proprietor. This difference may, however, be discounted, since under the decision in the instant case, Georgia did not have to assert a proprietary interest in the suit in order for the Court to take jurisdiction; it was enough that she sued as parens patrice on behalf of her people. In the Oklahoma case, Oklahoma was denied the right to sue as parens patrite on behalf of individual shippers. The majority specifically declared that it adheres to the decision in the Oklahoma case, but that that decision does not control the present suit because, "this is not a suit in which a State is a mere nominal plaintiff, individual shippers being the real complainants. This is a suit in which Georgia asserts claims arising out of federal laws and the gravamen of which runs far beyond the claim of damage to individual shippers." 24 This statement brings into sharp focus the second novel step the majority has taken by its decision with regard to the parens patrice point. Here the right asserted by Georgia was a right created by federal statutes, i. e. the right to sue for violation of the anti-trust laws. The minority of the Court, speaking through Chief Justice Stone, held that only the federal government can be parens patrie to enforce the claims of its citizens with respect to a right created by a federal statute. Numerous decisions support this view. 2 5 Louisiamn v. Texats, 26 involved a suit which was brought by Louisiana to restrain Texas from enforcing quarantine regulations which would allegedly discriminate against Texas and would be injurious to the trade and commerce of her people. The Court dismissed the suit. Mr. Chief Justice Fuller, in delivering the opinion of the Court, said: "Its gravamen is not a special and peculiar injury such as would sustain an action by a private person, but the State of Louisiana pre- 23. Id. at 286, 3 Sup. Ct. at 436, 55 L. Ed. at U. S..,65 Sup. Ct L. Ed. (Adv. Ops.) 758, 767 (1945). 25. Jones ex re. Louisiana v. Bowles, 322 U. S. 7o7, 64 Sup. Ct. 1049, 88 L. Ed (1944); Oklahoma v. Cook, 304 U. S. 387, 58 Sup. Ct. 954, 82 L. Ed (1938) ; Massachusetts v. Mellon, 262 U. S. 447, 43 Sup. Ct. 597, 67 L. Ed (1923) ; Oklahoma v. Atchison, Topeka & Santa Fe Ry., 220 U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465 (1911) ; Louisiana v. Texas, 176 U. S., 20 Sup. Ct. 251, 44 L. Ed. 347 (19oo) U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347 (1900).

7 448 UNIVERSITY OF PENNSYLVANIA LAW REVIEW sents herself in the attitude of parens patrix, trustee, guardian or representative of all her citizens. "She does this from the point of view that the State of Texas is intentionally absolutely interdicting interstate commerce as respects the State of Louisiana by means of unnecessary and unreasonable quarantine regulations. Inasmuch as the vindication of the freedom of interstate commerce is not committed to the State of Louisiana, and that State is not engaged in such commerce, the cause of action must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but as asserting that the State is entitled to seek relief in this way because the matters complained of affect her citizens at large. Nevertheless if the case stated is not one presenting a controversy between these States, the exercise of original jurisdiction by this court as against the State of Texas cannot be maintained." 2T The majority does not meet the point raised by Chief Justice Stone in the dissent. It says that Georgia may sue as parens patria to enforce a federal right created by a federal statute, and it bases its holding on the authority of cases which do not involve a federal right created by a federal statute. In Georgia v. Tennessee Copper Co., 28 one of the cases upon which the majority has relied, no federal statute was involved. Whatever right existed there was a common-law right which Georgia could enforce with respect to her natural resources. The same is true of the other cases upon which the majority has relied. In none of them was the right which the state was attempting to enforce one which had its origin in a federal statute. When the question had arisen on previous occasions the Court held, as did the minority in the instant case, that the United States, and not the individual states, is the parens patrie with respect to the rights of its citizens in their relations to the federal government. 29 On both aspects involving parens patri, the dissenting opinion supports the conclusion that the majority has completely reversed the Court's previous decisions. The majority here has taken a doctrine which was a well-recognized exception to the general rule and has applied that doctrine to anything which might affect a state's people in an abstract way. This decision has abolished the distinction previously made by the Court between suits in which a state had a direct or proprietary interest and those brought in a representative capacity. In view of this, it is difficult to predict how the Court will, in the future, draw the line in determining whether to entertain or dismiss suits brought by states. Furthermore, by holding that a state may assert as parens patria, on behalf of its people, some right which they have under a federal statute, the majority has allowed the state to invade what was recognized as the sole province of the federal government. II We turn now to a brief consideration of the second question confronting the Court in the instant case; namely, is this the kind of case which must be handled in the first instance by the administrative tribunal, i. e. the Interstate Commerce Commission? 27. Id. at 19, 20 Sup. Ct. at 257, 44 L. Ed. at o6 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1o38 (i9o7). 29. See note 25 mtpra.

8 NOTE In her original bill of complaint, Georgia had sought damages and injunctive relief against the rates, which had been promulgated by the alleged conspiracy. In her amended bill of complaint, Georgia asked for damages and injunctive relief against the conspiracy per se. She did not ask the Court to take any action whatsoever with respect to the rates themselves. "Georgia in this proceeding is not seeking an injunction against the continuance of any tariff; nor does she seek to have any tariff provision cancelled. She merely asks that the alleged rate-fixing combination and conspiracy among the defendant-carriers be enjoined." 30 It is important to note in this connection that while Georgia professed merely to seek an injunction to restrain the railroads from conspiring to fix rates, much of her complaint was addressed with great particularity to the harm caused her by the end product of the conspiracy, the rates. Clearly under the law as it stands today, had Georgia filed her original bill of complaint, she would have had no cause of action for damages or injunctive relief, either under the Interstate Commerce Act or the antitrust laws. Both the majority and the minority are in accord in this respect, and such a conclusion is well supported by case authority. 3 ' In its decisions, the Court has recognized the practical necessity for requiring prior resort to the Commission in such cases in order to insure the preservation of a unified system of rate regulation. Mr. Justice Cardozo, speaking about this requirement, has said, "If a sufferer from the discriminatory acts of carriers by rail or by water may sue for an injunction under the Clayton Act without resort in the first instance to the regulatory commission, the unity of the system of regulation breaks down beyond repair." 32 Not only would the unity of the system of regulation be seriously impaired, but should the Court entertain such a suit, it would actually be making rates for the future. Such a function has been repeatedly held to be legislative in character, 3 and the Court cannot "exercise or participate in the exercise of functions which are essentially legislative or administrative." 34 The determination of whether a shipper has in the past been injured by discriminatory rates is a judicial function; 35 however, in both instances, U. S. 5-, -, 6 Sup. Ct 7,6, 725, 89 L. Ed. (Adv. Ops.) 758, 769 (1945) 31. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553 (I9O7) ; Keogh v. Chicago & Northwestern Ry., 26o U. S. 156, 43 Sup. Ct. 47, 67 L. Ed. 183 (1922); Terminal Warehouse Co. v. Pennsylvania R. R., 297 U. S. 500, 56 Sup. Ct. 546, So L. Ed. 827 (1936) ; Central Transfer Co. v. Terminal R. R. Ass'n of St Louis, 288 U. S. 469, 53 Sup. Ct. 444, 77 L. Ed. 899 (933) ; Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct 477, 66 L. Ed. 943 (1922) ; Texas v. ICC, 258 U. S. 158, 42 Sup. Ct. 261, 66 L. Ed. 531 (1922) ; North Dakota v. Chicago & Northwestern Ry., 257 U. S. 485, 42 Sup. Ct. 17o, 66 L. Ed. 329 (1922) ; Robinson v. Baltimore & Ohio R. R., 222 U. S. 5o6, 32 Sup. Ct. 114, 56 L. Ed. 288 (1912) ; Baltimore & Ohio R. R. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292 (19io). See also United States Navigation Co., Inc. v: Cunard Steamship Co., Ltd., 284 U. S. 474, 52 Sup. Ct. 247, 76 L. Ed. 408 (1932). 32. Terminal Warehouse Co. v. Pennsylvania R. R., 297 U. S. 500, 513, 56 Sup. Ct. 546, 55I, 8o L. Ed. 827, 835 (1936). 33. Norwegian Nitrogen Products Co. v. United States, 287 U. S. 586, 53 Sup. Ct. 79, 77 L. Ed. 512 (1932) ; Federal Radio Commission v. General Elec. Co., 28r U. S. 464, 50 Sup. Ct. 389, 74 L. Ed. 969 (930) ; Chicago Junction Case, 264 U. S. 258, 44 Sup. Ct 317, 68 L. Ed. 667 (1924) ; Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct. 477, 66 L. Ed. 943 (1922) ; Louisville & Nashville R. R. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229 (913). 34. Federal Radio Commission v. General Elec. Co., 283 U. S. 464, 469, 5o Sup. Ct. 389, 390, 74 L. Ed. 969, 972 (1930) ; Keller v. Potomac Elec. Power Co., 261 U. S. 428, 43 Sup. Ct. 445, 67 L. Ed. 731 (3923). 35. Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct. 477, 66 L. Ed. 943 (1922).

9 450 UNIVERSITY OF PENNSYLVANIA LAW REVIEW prior resort to the Commission is essential before a suit concerning the rates may be brought in court. "Sometimes this is required because the function being exercised is in its nature administrative in contradistinction to judicial. But ordinarily the determining factor is not the character of the function, but the character of the controverted question and the nature of the enquiry necessary for its solution." 31 The principle that no action for damages will lie under the Interstate Commerce Act for alleged discriminatory or unjust rates without previous resort to the Interstate Commerce Commission was first established in the case of Texas & Pacific Ry. v. Abilene Cotton Oil Co. 87 In that case the oil company sued to recover damages from the railroad for allegedly discriminatory rates charged it with regard to a shipment of cotton seed. The rates complained of had been filed and published according to the provisions of the Interstate Commerce Act; they had not been found unreasonable by the Commission. The Supreme Court held that the action for damages would not lie in this case, saying: "If it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of the shipper by a court and a jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be unreasonable and ordering the carrier to desist in the future from violating the act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would receive a preference or discrimination not enjoyed by those against whom the schedule of rates was continued to be enforced... "A shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule, because the rates fixed therein are unreasonable.,, 8 Thus, at an early date, the Court considered as of primary importance the strong public-policy argument against allowing shippers to bring such a suit to a court for adjudication before taking it to the Commission. The doctrine set forth in the Abilene case was affirmed and followed by the Court in subsequent cases coming before it. 89 The same principle has been applied to suits brought under the Interstate Commerce Act for injunctions to restrain the carrying into effect of allegedly unlawful rates. In those cases, the Court has indicated by its language that these suits will not be entertained in the absence of a prior determination of the Commission as to the unlawfulness of the rates in- 36. Id. at 291, 42 SUp. Ct. at 479, 66 L. Ed. at U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553 (1907). 38. Id. at 44o, 448, 27 Sup. Ct. at 355, 358, 51 L. Ed. at 558-9, United States Navigation Co., Inc. v. Cunard Steamship Co., Ltd., 284 U. S. 474, 52 Sup. Ct. 247, 76 L. Ed. 4o8 (1932) ; Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct 477, 66 L. Ed. 943 (1922) ; Robinson v. Baltimore & Ohio R. R., 22 U. S. 5o6, 32 Sup. Ct. 114, 56 L. Ed. 288 (1912) ; Baltimore & Ohio R. R. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292 (191o).

10 NOTE volved. 40 In Baltimore & Ohio v. Pitcairn Coal Co., 41 a petition for a writ of mandamus which alleged that an interstate railroad had discriminated against the plaintiff with the distribution of railroad cars was dismissed because the "grievances complained of were primarily within the administrative competency of the Interstate Commerce Commission and not subject to be judicially enforced, at least until that body, clothed by the statute with authority on the subject, had been afforded by a complaint made to it the opportunity to exert its administrative functions. "42 Suits to have orders of the Interstate Commerce Commission reviewed must be brought according to the statutory procedure set up by the Interstate Commerce Act. 43 In Texas v. Interstate Commerce Commission, 44 an original suit in equity brought by Texas in the Supreme Court to have an order of the Commission set aside was dismissed, the court holding that a state must follow the provisions of the Act and bring her suit in the district court. The same result was reached by the Court in North Dakota v. Chicago & Northwestern Ry. 45 The cases just discussed all involved suits brought under the Interstate Commerce Act. They illustrate how carefully the Court has refrained from trenching upon the jurisdiction of the Interstate Commerce Commission. With respect to suits brought under the anti-trust laws, an interesting legal situation may often arise. Rates of common carriers subject to the jurisdiction of the Interstate Commerce Commission may be lawful, even though the manner in which they were fixed was a violation of the anti-trust laws. An action to recover damages for unjust or discriminatory rates will not lie in the absence of a previous determination by the Commission that the rates are unlawful. Thus in Keogh v. Chicago & Northwestern R. R., 46 the leading case on this point, Keogh, a shipper, brought an action for damages under the anti-trust laws in a federal district court against eight railroad companies. He alleged that as a result of a conspiracy among these carriers, he had to pay arbitrary and unreasonable rates. The rates of which he complained had been filed with and approved by the Commission. Keogh argued that since the rates had been fixed by the conspiracy, section 7 of the Sherman Act had been violated, and he was entitled to recover damages. The Court, in holding that the action would not lie, said, "A rate is not necessarily illegal because it is the result of a conspiracy in restraint of trade in violation of the Anti-Trust Act. What rates are legal is determined by the Act to Regulate Commerce.... The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and, shipper." 47 The right of a shipper to recover damages in such a case is conditioned upon a prior determination by the Commission 40. Mr. Justice Brandeis' opinion in Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct. 477, 66 L. Ed. 943 (1922); Mr. Justice Holmes' opinion in North Dakota ex rel. Lemke v. Chicago & Northwestern Ry., 257 U. S. 485, 490-I, 42 Sup. Ct. 170, 171, 66 L. Ed. 329, (1922) U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292 (IgIo). 42. Id. at 493, 30 Sup. Ct. at 16q, 54 L. Ed. at Texas v. ICC, 258 U. S. 158, 42 Sup. Ct. 261, 66 L. Ed. 531 (1922); North Dakota v. Chicago & N. W. Ry. Co., 257 U. S. 485, 42 Sup. Ct. 17o, 66 L. Ed. 329 (1922) U. S. 158, 42 Sup. Ct. 261, 66 L. Ed. 531 (1922) U. S. 485, 42 Sup. Ct. 17o, 66 L. Ed. 329 (1922) U. S. 156, 43 Sup. Ct. 47, 67 L. Ed. 183 (1922). The principle established in the Keogh case was followed by the Court in Terminal Warehouse v. Pennsylvania R. R., 297 U. S. 500, 56 Sup. Ct. 546, 8o L. Ed. 827 (1936). 47. Id. at 162, 163, 43 Sup. Ct. at 49, 67 L. Ed. at 187.

11 452 UNIVERSITY OF PENNSYLVANIA LAW REVIEW that the rates complained of are unlawful. 4 " Until that determination has been made, the shipper cannot show that he has been legally injured in any way; and in the absence of showing such injury, he is not entitled to recover damages. The fact that the Court has never regarded it as being in the public interest to allow a private individual to take these cases to a court for determination before they are taken to the Commission cannot be overemphasized. Before the Clayton Act was passed, the United States alone could bring suits to restrain violations of the anti-trust law. 49 Section i6 io of the Clayton Act gave others than the United States the right to sue for an injunction in an anti-trust suit; however, this section made an exception to the broad grant and provided that no one but the United States could bring a suit for an injunction against any,common carrier coming within the Interstate Commerce Act "in respect of any matter subject to the jurisdiction of the Interstate Commerce Commission." The crucial word in that proviso, insofar as the decision in the instant case is concerned, is the word "matter." How broad an interpretation should it be given? What is to be included within its scope? It was on this problem of interpreting the meaning of the term "matter" as used in the Act that the majority and the minority in the instant case differed radically and reached diametrically opposite conclusions. The majority decision, based upon a distinction between a suit for an injunction to restrain the carrying out of established rates and a suit to enjoin a conspiracy from fixing rates, allowed Georgia to file her amended complaint and held that the "relief which Georgia seeks is not a matter subject to the jurisdiction of the Commission ;" -, and that hence Georgia was not precluded from bringing such a suit. According to the majority, Georgia had made out a cause of action under that part of section i6 of the Clayton Act giving persons other than the United States the right to bring such a suit. The minority, on the other hand, construed the language in the proviso of section i6 as denying the remedy, "except to the United States, in respect to any matter 5 2 subject to the jurisdiction of the Commission." 53 The minority then states that Georgia in this suit "cannot show damage except by showing that the Commission would approve some rate structure other than that presently existing" and, "That is certainly a matter subject to the jurisdiction' of the Commission sufficient to preclude a suit under section 16." 54 The majority treats the contract or conspiracy as being separate and distinct from the subject matter of the contract and the acts necessary to carry out its terms. In Central Transfer Company v. Terminal Railroad Association, 55 a corporation engaged in shipping freight in interstate commerce, brought a suit for an injunction to restrain certain railroads from carrying out an agreement alleged to be a violation of the anti-trust laws. The Court upheld the judgment of the lower court dismissing the suit. Although it recognized the distinction between a contract and the acts necessary to fulfill its terms, the Court said: 48. Louisville & Nashville R. R. v. Ohio Valley Tie Co., 242 U. S. 288, 37 Sup. Ct. 120, 6i L. Ed. 3o5 (i9i6) STAT. 209 (i8go), as amended, i5 U. S. C. A STAT. 737 (1914), 15 U. S. C. A U. S.,, 65 Sup. Ct. 716, 725, 89 L. Ed. (Adv. Ops.) 758, 769 (1945). 52. (Italics supplied.) U. S.,. 65 Sup. Ct. 76, 735, 89 L. Ed. (Adv. Ops.) 758, 780 (945). 54. Id. at -, 65 Sup. Ct. at 739, 89 L. Ed. (Adv. Ops.) at (945) U. S. 469, 53 Sup. Ct. 444, 77 L. Ed. 899 (i923).

12 NOTE "True, a contract may precede and have existence apart from the several acts required to perform it, and conceivably all of those acts might be done if no contract or agreement to perform them had ever existed. But when they are done in performance of an agreement, there is no way by which the agreement itself can be assailed by injunction except by restraining acts done in performance of it. That, in this case, the statute forbids, not because the contract is within the jurisdiction of the Interstate Commerce Commission, but because the acts done in performance of it, which must necessarily be enjoined if any relief is given, are matters subject to the jurisdiction of the Commission." Practically, the same factual situation which confronted the Court in the Central Transfer case was present in the instant case. Here the contract which was alleged to be a violation of the anti-trust laws could not be carried out in practice except through the filing of the rates with the Interstate Commerce Commission. The Court held that the latter came within the broad term "matter," but that the contract itself was not subject to the Commission, and that the Court, therefore, could take jurisdiction. It is difficult to reconcile some of the language used by the majority in its opinion with the actual holding of the case. The majority quotes portions of the opinions in the Central Transfer and Terminal Warehouse cases where the Court recognized and gave effect to the policy argument previously discussed. The majority in the instant case asserts adherence to the principles established in these cases mentioned above; nevertheless, it disregards these very same principles and allows Georgia to bring her suit because "the relief which Georgia seeks is not a matter subject to the jurisdiction of the Commission." The important question raised by the decision in the instant case is: Having taken jurisdiction, can the Court give any relief at all without considering the rate question? What will the Court enjoin? The conspiracy? If so, on what grounds? Georgia is not injured by the conspiracy per se. The gravamen of her complaint is that the rates were discriminatory and caused her harm. The majority admits that Georgia has no cause of action unless she can show injury. To do so, Georgia must prove that the rates were unreasonable. She cannot tie the act of conspiracy to the injury inflicted upon her without going into the rates, for the conspiracy was not in itself harmful. It is difficult to see how the Court can avoid going into the question of rates if it is to give Georgia something more than a decree which would be a mere formality. If the Court does consider the rate question in framing its decree, it will be exercising an administrative function which has been given by statute to the Interstate Commerce Commission exclusively. The decision in the instant case in effect gives an aggrieved party the option of bringing an anti-trust suit involving allegedly unlawful rates of a common carrier either before a court or before the Interstate Commerce Commission. If the party elects to bring the suit before a court, all he need do in order to insure the court's taking jurisdiction, is to word his complaint in such a way as to give the impression that he is seeking relief only from the contract and not from the rates themselves. Such a result is bad not only from the standpoint of Constitutional Law, but also from the practical aspect of having two separate and distinct bodies determining what are the lawful rates of common carriers. The common carrier involved in the suit would then be placed in the embarrassing position of 56. Id. at 476, 53 Sup. Ct. at 446-7, 77 L. Ed. at 9o3.

13 454 UNIVERSITY OF PENNSYLVANIA LAW REVIEW having to obey the conflicting orders of two independent authorities. Finding this an impossibility, it would then have to choose one at the risk of being subject to a penalty for failure to obey the other. Furthermore, as the minority has pointed out in its opinion, 5 7 neither the Interstate Commerce Commission nor the United States would be bound by any decision of the Court. This leaves open the possibility of constant re-litigation resulting in chaos and uncertainty in a field where stability and finality is essential to the smooth functioning of commerce. What Justice Cardozo said in the Terminal Warehouse case about the breaking-down of the rate system applies with equal force to the situation in the instant case. Frame Georgia's complaint in any way you will; in the last analysis, Georgia's injury stems from the discriminatory rates and not the conspiracy per se. The Court has in its previous decisions recognized that the whole unified system of rate structure is dependent upon a single centralized body exercising the rate making power. The decision in the instant case completely disregards this principle. V.M.H U. S., 65 Sup. Ct. 716, 74o, 89 L. Ed. (Adv. Ops.) 758, 786 (1945).