Year: 1872




to direct the district attorney of the United States for
Minnesota the withdrawal of tha, inunc-
ton, upon condition that dyke be constructed across
the north end of the Bay of SUPERIOR in such way
to prevent the waters of said river from passing of
said canal Such consent was accordingly given, and
the injunction dissolved, and the court, by Mr. Justice
Miller, made the following informal order: " If upon
the fnal hearing it shall be made appear, in the
manner indicated, or in any other manner satisfactory
to the court that the canal can be protected by a
breakwater to prevent the rapid diversion of
the waters of the bay, in any other be
completed without in ury to the government works,
and if the defendants put their work in that condition
the injunction may be modified or dissolved


The State of Wisconsin and her attorneys when ap-
prised of this intervention in vain protested against
it, and the result has been that the suit itself has been
dismissed by the Attorney General of the United
States, and dyke mile in length, made sub
stantially of crib work, filled with stone and without
external opening has been constructed by Duluth
and said railroad company, across from the end of
Rces Point to Minnesota point, completely enclosing
the waters of the north end of the Bay of SUPERIOR
which part of the ST. Louis river miles
in length and mile in BREADTH and of a nav-
gable depth, and lying along the landing and wharvcs
OF the two railroads. terminating at that point The
waters are within the joint jurisdiction of this state,
and by law to be forever free to common and
navigation. The city of Superior and inhabitants of
Wisconsn entirely off and obstruced from the
of these waters from the SOUTH and access the
SAID railroads. The dyke is greater injury and





the birth, whether legitimately otherwise of the
intervention of the department in the above suit
The location of the dyke where it has been construct
ed, may not have been contemplated, but it has
tainly been the result 1t had not been entirely clos
ed when the undersigned employed by your Ex
cellency to take proper and immediate measures in
court, to prevent its completion.


Accordingly, on the 2oth day of june ultimo, a bill
in Equity filed in the circuit of the United
States, for the District of Minnesota in which the
.rn nnfW ,aann r,aAa pl,iv, o,I Tho
city of Duluth the Northern Pacific Railroad and
Sidney Luce made defendants and a rule obtain
ed from Mr. Justice Miller (then holding said court
with Judge Dillon) returnabe the 2Sh for the de-
PENDANTS to show why Injunction should not
be granted to prevent the completion of said dyke
On the hearing of said rule the 29th the objection
raised that the circuit court of the United States
had no jurisdiction of this cause because
party.


This question was alone argued and submitted, and
the court took the matter under advsement and on
Monday July lst, delivered written opinion (here-
with submltted) sustaining said objection and dsmis
sed the bill 1t is understood that in the meantime
the dyke has been fully completed and closed.


In justice to ourselves have thought it duty
to present the and authorities for the
pursued by in bringing this suit in the circuit rath
er than the supreme court of the United States:


lst. The circuit court of Minnesota would sit and
try the the subject of controversy.


I'd. That court in such has settled rules of
practice and short rule DAYS


3D. 1t has jury to whom eigned issues in chancery
can be referred.


f. 1t would be more speedy and convenient less ex-
pensive and fully as impartial.


These are certainly grave reasons why the circuit
court should have jurisdiction and the only remaining
question Is, has tue ci,ot of the Uitvd
original jurisdiction in any where State is
party plaintiff! 1t is not claimed that state can be
sued in that court for this right is specially taken
away by the lth Amendment the Constitution and
it might well be argued, that inasmuch that amend
ment does not prohibit state from being plaintiff
but only protects a state fiom being defendant in
suits in the courts of the United States the amend
ment itself implicitly recognizes the right of State
to plaintiff in any of the Federal courts citizens
of any other state in a proper case.


Section 2, of Article 3, of the constitution of the
United States provides that the judicial power of
the United States, shall extend controversies be-
tween state and the citizens of another state" and
again that the supreme court shall have original u-
rlsdlctlon IN all Cases IN which state shall be
ty." 1t will be observed that the constitution does
not give exclusive jurisdiction to the supreme
case, but merely original leaving congress the
authority to distribute these judicial powers among the
courts they might thereafter This particular
jurisdiction between state and the citizens of anoth
state is sought to be conferred and regulated by
the 9Th section of the Judiciary act of 1889, in the
following language: The supreme court shall have
EXCLUSIVE jurisdiction of all controversies of civil
nature, when state is party, except between state
and its citizens, and except also between state and
citizens of other states Aliens in which latter case
it shall have original but not exclusive jurisdiction"
If not exclusive, in such case it is concurrent
Concurrent, then with what other court or courts
Concurrent, of course, with the other Federal court
created by that act in where the subject
matter would be within their respective jurisdictions


The jurisdiction of the circuit as to the sub
ject matter very general, far than any
other Federal court, and the appropriate of anv
in which try where the controversy was be-
tween and citizens of another ate and bv the
only fair rule OF construction this concurrent ursdc
tion with the supreme court in such is vested
in that court. Was necessary for Congress to pro-
vide that the jurisdiction of the supreme shall
not be exclusive of the state courts in such
Certainly for the had such ursdc-
ton inherently and intact and the constitution itself
did affect it, and it not the object of congress-
in this legisate for the courts but only
for the Federal This construction of the con
sttuton and of the of 1889 sustained by Judge
Storey, in the second volume of his commentaries on
the constitution, page 53 by holding that this juris-
dicon of the Federal courts is exclusive of the state
courts IN such case.


But this jurisdiction is sustained by the direct and
explicit decision of the question by the supreme
of the United States, and by the nearly uniform prac
tce and usage of the circuit courts in the judicial his
| tory of the country


| In the Wheeling Bridge case, when the State OF
Pennsylvania was the complainant, very similar
to this in many respects, How SIS, the court say,
Judge Mclean writing the opinion: And it is ad-
mtted that the under consideration is subject to
the rules OF action if the suit had been
menced in the circuit for the district Of Virginia
This is the decision Of the court recognizing the
current jurisdiction of the circuit of the United
States in that case and being unquestionable by
the words :" it is admitted" Judge Tanev in his dis
sentiDg opinion in the case evidently wish
ing to dissent from the majority of the in any
opinion expressed except in the point of disagree
ment, to have felt called upon expressly
with the court on the question of grave import
ance and says: " In examining the question, it must
be borne in mind that although the suit is brought in
this court, the law of the and the rights of the
parties the if it had been brought in the