AZ vs. CA:24 California Exhibits, Vol. XXIV; Miscellaneous

page A94

A94 APPENDIX 210 of its commissioner, the combined representation of the two Governments (State and National) is designated a "joint commission" (162 U. S. 1, 73); by the act authorizing the suit between the United States and Texas (26 Stat., 81, 92, ch. 182, sec. 25) the commission formed under the act of 1885 with the State of Texas is designated as "the joint boundary commission under the act of Congress," etc. (143 U. S. 621, 622); and by the act of 1885 "a joint commission was organized" (143 U. S. 621, 636). Without further multiplication of examples, it would appear that where two representatives of the United States and of a State are duly appointed for the purpose of settling a boundary or some other dispute, such persons are "commissioners" and are collectively a "joint commission," and as the Court said (162 U. S. 76), "Under the act of Texas of 1882 and the act of Congress of 1885, the two Governments appointed commissioners," and the body so constituted was a "joint commission." This exercise of the treaty-making powers of the two separate Governments (National and State) necessarily proceeds upon the fundamental fact that there are two separate and distinct Governments, each having its attributes of sovereignty. Of this we shall make mention in a separate memorandum. COMPACTS BETWEEN STATE AND NATIONAL GOVERNMENTS Controversies arising between two States or between the United States and a State or States may be settled by compact or agreement or by judicial determination by the United States Supreme Court. Diplomacy failing, the suit before the Court is the substitute for war. In either event the high contracting or litigating parties proceed upon the basis of sovereignties, each exercising independent and separate powers, and each exclusive within its proper sphere. As said by Mr. Justice Harlan in United States v. Texas (143 U. S. 621, 646): The submission to judicial solution of controversies arising between these two Governments, "each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other" (McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410), but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty. The States of the Union have agreed, in the Constitution, that the judicial power of the United States shall extend to all cases arising under the Constitution, laws, and treaties of the United States, without regard to the character of the parties (excluding, of course, suits against a State by its own citizens or by citizens of other States, or by citizens or subjects of foreign States), and equally to controversies to which the United States shall be a party, without regard to the subject of such controversies, and that this court may exercise original jurisdiction in all such cases "in the which a State shall be party," without excluding those in which the United States may be the opposite party. The power to enter into compact between a State or States and the United States is founded upon the same principle as the power