Evening star., 1932-12-09
States yMake Compacts
With One Another Legally.

| The caption which you have placed
on the letter by Joseph w. Cheyney,
printed in your columns December z,
mo Treaties Possible Between the
States" is in itself incorrect and mis-
leading. Furthermore, Mr.. Cheyney,
who has evidently read the Federal
Constitution, but not the reported cases
of the Supreme Court Of the United
| States interpretative thereof, has sue
ceeded, through your columns, in pub
fishing his opinion upon a very tech
nical question of constitutional law,
which opinion is astonishing, confusing
and incorrect, for the reason that 1t
| conflicts with law.
| The criticism which he makes of the
article in The Star on page Of the
magazine section of December last is
unfounded and unsupported by author
| ity. He states that the first clause in
section 10 of the first article of the
Constitution prohibits such State ac-
ton as the writer of the article in The
Star of December advocates. Such is
not the case The views of the writer
Of that article in The Star are sound
and based upon the highest competent
| legal authority.
1t is true that while States are pro-
hibited by the aforesaid article of the
| Constitution from entering into any
treaties, alliances or considerations, ="
nevertheless they may, with the con-
sent OF Congress, enter into "compacts
and agreements" In some instances
the consent Of Congress is either i'm
Piled or unnecessary, depending upon
the nature of the transaction. Under
our Constitution, States possess the
right and power, as one Of their sovereign
prerogatives, to enter into compacts and
agreements with each other, as well as
with foreign powers, subject, of course,
to the constitutional inhibitions. For
an example where the Supreme Court
has upheld compact between two
States, vide Virginia VS.. Tennessee, 148
U. S. 500, 13 Sup. ct. 728; compact be-
tween State and a foreign power vide
McHenry County VS.. Brady, 81 N. D.
SO, 1853 N. w. $40, decided by highest
court of North Dakota.
The distinction between treaties,
alliances and considerations" on the
one hand and "compacts and agree
mentS' on the other, while not wholly
clear and articulate, is practically de-
finable from the adjudicated cases on
the subject, decided by both the Su-
preme Court of the United States and
various State courts Of last resort.
1t has been elegantly and concisely
pointed out by the eminent jurist Car
man F. Randolph that: "The distinction
between treaty, alliance or confedera-
ton absolutely forbidden and the
agreement or compact conditionally
permitted is not obscure. The United
States will not tolerate an imperium
IN 1mperio, or any combination of
States against other States, or any con-
nection between a State and a foreign
country. But compacts not compromis-
ing the supremacy of the United States
over the several States, or the equality
OF States among themselves, may be
made with the consent of Congress. And
1t seems that in some cases this con-
sent need not be given in advance, as
where the agreement relates to a mat
ter which could not well be considered
until Its nature is fully developed and
sometimes, indeed, consent may be
given by implication" Vide suits be-
tween States, Columbia Law Review,
1902, II, 283, 1854, BIT. The undoubted
rule is that although the States have
voluntarily yielded their right to enter
INTO treaties, alliances and confedera-
tions, yet they have not relinquished
their sovereign right to enter into COM
pacts and agreements concerning purely
non-political domestic matters, with
the expressed or implied consent of the
Congress. This doctrine Of law has
been definitely established in about 80
decided cases of highest repute.
Compacts and agreements between
the States Of a non-political complexion
have already been sustained by the
courts, involving local boundaries, i'm
provements, public works, joint criminal
| jurisdiction over waters, interstate
bridges, fisheries, highways, corpora
tions, common carriers and other do
mestic problems. Vide Irvine VS.. Sims
Lessee, Dallas 425, L. Ed. 665;
Holmes VS.. Jennison, Is Pet. $40, 10 l..
Ed. 579; Green VS.. Biddle, 8 Wheat. /,
| 5 L. Ed. SAT; Kansas VS.. Colorado, 1876
U. S. 1875; City Of New York vs. Wilcox,
169 N. Y. Supp. 724. See 1.-The Supreme
Court and Sovereign States" by
Charles Warren, notes, p. 1855; Rhode
Island VS.. Massachusetts,, IL Pet. 724;
3 Opp. Atty. Gen. 661. In 1924 Con-
gress sanctioned a compact and agree
ment between Maine and Canada; vide
act of March 18, 1924, Public Acts and
Resolutions. Sixty-ninth Congress, Sess.
l, C. 81, 1924.
If my good friend Mr.. Cheyney will
read the authorities collected above, I
am sure that he will then discover there
is nothing astonishing" or confusing"
about that meritorius article in the
issue Of The Star of December 4, 1882.
HERBERT r. GROSSMAN.