CHAPTER XV.

INTERSTATE RELATIONS: COMPACTS BETWEEN THE STATES, AND BETWEEN THE UNITED STATES AND THE STATES.

§ 112. Compacts between the States.

The control of international relations being exclusively vested in the Federal Government, it necessarily follows that the several States have no authority to enter into any diplomatic or political relations with foreign powers.1 Nevertheless, from an excess of caution, the federal Constitution declares that, "No State shall enter into any treaty, alliance or confederation," and that, "No State shall, without the consent of Congress,

enter into any agreement or compact with another State, or with a foreign power."

It will be noticed that in the latter of these two constitutional clauses, the qualification "without the consent of Congress" is introduced. There has, therefore, never been any doubt but that, when this congressional consent is given, the several States of the American Union may enter into agreements and compacts with one another, so long as their effect is not to create what in political language is termed an "alliance" or "Confederation." 2 Not only this; it has been held that there are a variety of subjects concerning which the several States may enter into agreements with one another without the necessity of obtaining the consent of Congress. Upon this point, in Virginia v. Tennessee, the Supreme Court say: "There are many matters upon which different States may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York which the latter State might desire to acquire as a site for a public building,

3

5 L. ed. 547; Poole v. Fleeger, 11 Pet. 185;

3 148 U. S. 503; 13 Sup. Ct. Rep. 728; 37 L. ed. 537.

it would hardly be deemed essential for the latter State to obtain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its exhibits to the World's Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that State to obtain the consent of Congress before it could contract with New York for the transportation of the exhibits through the State in that way. If the bordering line of the two States should cross some malarious and disease-producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of Congress for the bordering States to agree to unite in removing the cause of the disease. So, in the case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened States could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of Congress, which might not be at the time in session."

"If, then," the court asks, "the terms compact' or agree ment' in the Constitution do not apply to every possible compact or agreement between one State and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?" "Looking at the clause in which the terms compact' or agreement' appear," answers the court, "it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” *

The court continue: "Compacts or agreements - and we do not perceive any difference in the meaning, except that the word 'compact' is generally used with reference to more formal and serious engagements than is usually implied in the term agreement cover all stipulations affecting the conduct or claims of the parties. The mere selection of parties to run and designate

4 The court go on to quote with approval from Story's Commentaries upon the Constitution, Sec. 1403.

the boundary line between two States, or to designate what line should be run, of itself imports no agreement to accept the line run by them, and such action of itself does not come within the prohibition. Nor does legislative declaration, following such line, that it is correct, and shall thereafter be deemed the true and established line, import by itself a contract or agreement with the adjoining State. It is a legislative declaration which the State and individuals affected by the recognized boundary line may invoke against the State as an admission, but not as a compact or agreement. The legislative declaration will take the form of an agreement or compact when it recites some consideration for it from the other party affected by it, for example, as made upon a similar declaration of the border or contracting State. The mutual agreements may then be reasonably treated as made upon mutual considerations. The compact or agreement will then be within the prohibition of the Constitution or without it, according as the establishment of the boundary line may lead or not to the increase of the political power or influence of the States affected, and thus encroach or not upon the full and free exercise of federal authority. If the boundary established is so run as to cut off an important and valuable portion of a State, the political power of the State enlarged would be affected by the settlement of the boundary; and to an agreement for the running of such a boundary or rather for its adoption afterward, the consent of Congress may well be required. But the running of a boundary may have no effect upon the political influence of either State, it may simply serve to mark and define that which actually existed before, but was undefined and unmarked. In that case the agreement for the running of the line, or its actual survey, would in no respect displace the relation of either of the States to the General Government. There was, therefore, no compact or agreement between the States in this case which required, for its validity, the consent of Congress, within the meaning of the Constitution, until they had passed upon the report of the commissioners, ratified their action, and mutually declared the boundary established by them to be the

true and real boundary between the States. Such ratification was mutually made by each State in consideration of the ratification of the other." 95

§ 113. Compact Between the States and the United States.

Closely connected with the question of compacts of the States, inter se, is that of compacts between the individual States and the United States.

Of compacts of this character which have been entered into, the greater number have been made at the time the States in question have been admitted as States into the Union, and have attempted to place such States under restrictions not directly deducible from the federal Constitution, and are, therefore, restrictions not resting upon the other States. To this extent they have been in violation of the general principle of the equality of the States. This principle, it may be said, is not expressly stated in the federal Constitution, but would seem to be implied in the general nature of that instrument.

The Constitution, without distinguishing between the original and new States, defines the political privileges which the States

5 The opinion continues: "The Constitution does not state when the consent of Congress shall be given, whether it shall precede or follow the compact made, or whether it shall be express or may be implied. In many cases the consent will usually precede the compact or agreement, as to where it is to lay a duty of tonnage, to keep troops or ships of war in time of peace, or to engage in war. But where the agreement relates to a matter which could not well be considered until its nature is fully developed, it is not perceived why the consent may not be subsequently given. Story says that the consent may be implied, and is always to be implied when Congress adopts the particular act by sanctioning its objeets and aiding in enforcing them; and observes that where a State is admitted into the Union, notoriously upon a compact made · between it and the State of which it previously composed a part, there the act of Congress, admitting such State into the Union, is an implied consent to the terms of the compact. Knowledge by Congress of the boundaries of a State, and of its political subdivisions, may reasonably be presumed, as much of its legislation is affected by them, such as relates to the territorial jurisdiction of the courts of the United States, the extent of their collection districts, and of districts in which process, civil and criminal, of their courts may be served and enforced."

6 See article "Are the States Equal under the Constitution?" by W. A. Dunning, in Political Science Quarterly, III, 425.

are to enjoy, and declares that all powers not granted to the United States shall be considered as reserved to the States." From this it almost irresistibly follows that Congress has not the right to provide that certain members of the Union, possessing full statehood, shall have their constitutional competences in any manner less than that of their sister States. According to this, then, though Congress may exact of territories whatever conditions it sees fit as requirements precedent to their admission as States, when admitted as such, it cannot deny to them any of the privileges and immunities which the other Commonwealths enjoy.

§ 114. Equality of the States.

The principle of the equality of the States had its origin before the adoption of the Constitution itself. In the acts of cession by the several States through which the old Confederacy obtained the control of the Northwest Territory, it was provided that from this vast area new States should, from time to time, be organized, which should be admitted to the Confederacy, with the same sovereign rights enjoyed by other States.

The famous Northwest Ordinance of 1787, re-enacted by the Congress of the United States in 1789, after laying down the general conditions upon which statehood was to be accorded, declared that the States, so admitted, should be "on an equal footing with the original States in all respects whatever."

Notwithstanding, however, this requirement of equality, Congress at an early date began the practice of exacting from would-be States various promises by the terms of which they were to hold themselves bound after their admission to the Union and until Congress should release them. Thus, for example, beginning in 1802 with Ohio, the first State formed from the Northwest Territory, it was demanded by Congress that that State, when admitted, should pass an ordinance, irrevocable without the consent of Congress, not to tax for five years all public lands sold by the United States; and a requirement substantially similar was demanded of many of the States later formed. When Missouri was admitted in 1821 it was required to declare that its Constitution