“When the States of Kansas and Colorado were admitted into the Union they
were admitted with the full powers of local sovereignty which belonged
to other States (Pollard v. Hagan, supra; Shively v. Bowlby, supra;
Hardin v. Shedd, 190 U. S., 508, 519); and Colorado by its legislation
has recognized the right of appropriating the flowing waters to the
purposes of irrigation. Now the question arises between two States, one
recognizing generally the common law rule of riparian rights and the
other prescribing the doctrine of the public ownership of flowing water.
Neither State can legislate for nor impose its own policy upon the other.
A stream flows through the two and a controversy is presented as to the
flow of that stream. It does not follow, however, that because Congress
cannot determine the rule which shall control between the two States,
or because neither State can enforce its own policy upon the other, the
controversy ceases to be one of a justiciable nature, or that there is
no power which can take cognizance of the controversy and determine the
relative rights of the two States. Indeed, the disagreement, coupled with
its effect upon a stream passing through the two States, makes a matter
for investigation and determination by this Court....
“As Congress cannot make compacts between the States as it cannot in
respect to certain matters by legislation compel their separate action,
disputes between them must be settled either by force or else by appeal
to tribunals empowered to determine the right and wrong thereof. Force
under our system of government is eliminated. The clear language of the
Constitution vests in this Court the power to settle those disputes. We
have exercised that power in a variety of instances, determining in the
several instances the justice of the dispute. Now, is our jurisdiction
ousted, even if, because Kansas and Colorado are States sovereign and
independent in local matters, the relations between them depend in any
respect upon principles of international law? International law is no
alien in this tribunal....
“One cardinal rule, underlying all the relations of the States to each
other, is that of equality of right. Each State stands on the same level
with all the rest. It can impose its own legislation on no one of the
others, and is bound to yield its own views to none. Yet, whenever, as
in the case of Missouri v. Illinois, 180 U. S., 208, the action of one
State reaches through the agency of natural laws into the territory of
another State, the question of the extent and the limitations of the
rights of the two States becomes a matter of justiciable dispute between
them, and this Court is called upon to settle that dispute in such a
way as will recognize the equal rights of both and at the same time
establish justice between them. In other words, through these successive
disputes and decisions this Court is practically building up what may not
improperly be called interstate common law.”
Public-domain text, read in full here on John Shaqi.
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