Under the statute passed in 1789 by Virginia, known as the
"Virginia Compact," and the act of Congress of February 4, 1791, c.
4, 1 Stat. 189, making Kentucky a state, the State of Indiana has
concurrent jurisdiction, including the right to serve process, with
Kentucky on the Ohio River opposite its shores below low water
mark. An Indiana judgment dependent for its validity upon a summons
served on that part of the river is entitled to full faith and
credit when sued upon in another state. The effect of the
above-mentioned acts in giving jurisdiction to Indiana is a federal
question.
Where a decision by the state court of the federal question
appears to have been the foundation of the judgment, a writ of
error lies.
The writ of error runs to a lower court when the record remains
there, and the judgment has to be entered there after a decision of
the question of law involved by the highest court of the state.
The facts are stated in the opinion.
Page 192 U. S. 580
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error to a circuit court of the State of
Kentucky on a judgment entered there in pursuance of a mandate of
the Court of Appeals of that state. 107 Ky. 310. The action was
brought upon an Indiana judgment. The answer denied the
jurisdiction of the Indiana court. It was not disputed that the
service in that suit was on a steamboat in the Ohio River on the
Indiana side. At the trial, two questions were left to the jury --
one whether the person purporting to act as the attorney of the
defendant in the Indiana suit was authorized to represent him and
the other whether the summons in that suit was served on the
Indiana or Kentucky side of the low water mark of the Ohio River
where it touches the Indiana shore. The jury found against the
authority of the alleged attorney, and found that the service was
on the Kentucky side of the low water mark, and therefore, it is
assumed, within the boundaries of Kentucky. Thereupon the
plaintiffs in error (the original plaintiffs) moved for judgment
notwithstanding the findings
Page 192 U. S. 581
of the jury, and judgment was ordered. The defendant excepted
and appealed. The Court of Appeals sustained the exceptions and
ordered a judgment on the verdict dismissing the action. A judgment
was entered, as ordered, in the court below -- the above-mentioned
circuit court -- and this writ of error was brought.
It is suggested that the writ of error should have been directed
to the Court of Appeals. But it appears from the form of the order
of that court that the record remained in the lower court, where
judgment was ordered to be entered, and the writ properly ran to
the court where the judgment had to be rendered.
Rothschild v.
Knight, 184 U. S. 334. It
is suggested further that the record does not show a federal
question. But the jurisdiction of the Indiana court was put in
issue by the pleadings, and it is apparent from what has been said
that the decision went on a denial of that jurisdiction because of
the place of service. That denial could be justified only on the
ground that the compact of Virginia and the act of Congress of
February 4, 1791, admitting Kentucky to the Union, did not confer
the right of jurisdiction which the Indiana court attempted to
exercise and which the State of Indiana claims. The judgment and
the opinion of the Court of Appeals both disclose that the decision
was against the right under the statutes referred to, and that it
was on that ground only that the Indiana judgment was denied any
force or effect. The question as to the right of jurisdiction
sufficiently appears.
San Jose Land & Water Co. v. San Jose
Ranch Co., 189 U. S. 177,
189 U. S. 180.
It is not denied that that question is one which can be taken to
this Court.
Pennsylvania v. Wheeling &
Belmont Bridge Co., 13 How. 518,
54 U. S.
566.
We pass to the question decided by the Court of Appeals. In
1789, the State of Virginia passed a statute known as the Virginia
Compact. This statute proposed the erection of the District of
Kentucky into an independent state upon certain conditions. One of
these was: § 11.
"Seventh, that the use and navigation of the River Ohio, so far
as the territory of the proposed state, or the territory which
shall remain within the limits of this commonwealth, lies thereon,
shall be
Page 192 U. S. 582
free and common to the citizens of the United States, and the
respective jurisdictions of this commonwealth and of the proposed
state on the river as aforesaid shall be concurrent only with the
states which may possess the opposite shores of the said
river."
13 Hening, St. at L. 17. (The previous cession by Virginia of
its rights in the territory northwest of the Ohio had been on
condition that the territory so ceded should be laid out and formed
into states. Act of December 20, 1783, 11 Hening, St. at L. 326.)
The Act of Congress of February 4, 1791, c. 4, 1 Stat. 189,
consents and enacts that the "District of Kentucky, within the
jurisdiction of the said Commonwealth" of Virginia, shall be formed
into a new state, and admitted into the Union. As a preliminary, it
recites the consent of the Virginia Legislature by the above act of
1789.
Under Article IV, Section 3, of the Constitution, a new state
could not be formed in this way within the jurisdiction of
Virginia, within which Kentucky was recognized as being by the
words last quoted, without the consent of the Legislature of
Virginia as well as of Congress. The need of such consent also was
recognized by the recital in the act of Congress. But as the
consent given by Virginia was conditioned upon the jurisdiction of
Kentucky on the Ohio River being concurrent only with the states to
be formed on the other side, Congress necessarily assented to and
adopted this condition when it assented to the act in which it was
contained.
Green v. Biddle,
8 Wheat. 1,
21 U. S. 87. Thus,
after the passage of the two acts, it stood absolutely enacted by
the powers which between them had absolute sovereignty over all the
territory concerned that, when states should be formed on the
opposite shores of the river, they should have concurrent
jurisdiction on the river with Kentucky. "This compact, by the
sanction of Congress, has become a law of the Union. What further
legislation can be desired for judicial action?"
Pennsylvania v. Wheeling &
Belmont Bridge Co., 13 How. 518,
54 U. S.
566.
It hardly is necessary to be curious or technical when dealing
with lawmaking power, in inquiring precisely what legal conceptions
shall be invoked in order to bring to pass what the legislature
enacts. If the lawmaking power says that a
Page 192 U. S. 583
matter with in its competence shall be so, so it will be, so far
as legal theory is concerned, without regard to the
elegantia
juris or whether it fits that theory or not. But there is no
trouble in giving the subsequently formed states the benefit of
this legislation. In the case of Kentucky, the "compact" which the
Virginia statute has been treated by this Court as creating,
Green v. Biddle,
8 Wheat. 1,
21 U. S. 16,
21 U. S. 90-92,
may be regarded as having been, in the first stage, not only a law,
but a continuing offer to the expected new state when it should
come into being, which was accepted by that state when it came into
being on the terms prescribed. And so as to the new states to be
formed thereafter on the other side of the river. It is true that
they were strangers to the most immediate purposes of the
transaction. But it must be remembered that this was legislation,
and when it is enacted by the sovereign power that new states, when
formed by that power, shall have a certain jurisdiction, those
states as they come into existence fall within the range of the
enactment, and have the jurisdiction. Whether they be said to have
it by way of acceptance of an offer, or on the theory of a trust
for them, or on the ground that jurisdiction was attached to the
land subject to the condition that states should be formed, or by
simple legislative fiat is not a material question so far as this
case is concerned. With that legislation in force, there was no
need to refer to it or to reenact it in the act which made Indiana
a state. That the states opposite to Kentucky have the
jurisdiction, whatever it is, over the Ohio River which the
Virginia Compact provided for was not disputed by the majority of
the Kentucky Court of Appeals, and has been recognized by this
Court and elsewhere whenever the question has come up.
Henderson Bridge Co. v. Henderson, 173 U.
S. 592,
173 U. S. 621;
Arnold v. Shields, 5 Dana 18, 22;
Commonwealth v.
Garner, 3 Gratt. 655, 661, 710, 724, 735, 744;
State v.
Faudre, 46 S.E. 269;
Carlisle v. State, 32 Ind. 55;
Sherlock v. Alling, 44 Ind. 184,
s.c.,
93 U. S. 93 U.S. 99;
Memphis & Cincinnati Packet Co. v. Pikey, 142 Ind.
304, 309-310;
Blanchard v. Porter, 11 Ohio 138, 142.
The question that remains, then, is the construction of the
Page 192 U. S. 584
Virginia Compact. It was suggested by one of the judges below
that the words "the respective jurisdiction . . . shall be
concurrent only with the states which may possess the opposite
shore" did not import a future grant, but only a restriction; that
they excluded the United States or other states, but left the
jurisdiction of the states on the two sides to be determined by
boundary, and therefore that the jurisdiction of Kentucky was
exclusive up to its boundary line of low water mark on the Indiana
side. This interpretation seems to be without sufficient warrant to
require discussion. A different one has been assumed hitherto, and
is required by an accurate reading. The several jurisdictions of
two states respectively over adjoining portions of a river
separated by a boundary line is no more concurrent than is a
similar jurisdiction over adjoining counties or strips of land.
Concurrent jurisdiction, properly so-called, on rivers is familiar
to our legislation, and means the jurisdiction of two powers over
one and the same place. There is no reason to give an unusual
meaning to the phrase.
See Sanders v. St. Louis & New
Orleans Anchor Line, 97 Mo. 26, 30;
Opsahl v. Judd,
30 Minn. 126, 129, 130;
J. S. Keator Lumber Co. v. St. Croix
Boom Corp., 72 Wis. 62, and the cases last cited.
The construction adopted by the majority of the Court of Appeals
seems to us at least equally untenable. It was held that the words
"meant only that the states should have legislative jurisdiction."
But jurisdiction, whatever else or more it may mean, is
jurisdictio, in its popular sense of authority to apply
the law to the acts of men. Vicat, Vocab. sub. v.
See Rhode
Island v. Massachusetts, 12 Pet. 657,
37 U. S. 718.
What the Virginia Compact most certainly conferred on the states
north of the Ohio was the right to administer the law below low
water mark on the river, and as part of that right, the right to
serve process there with effect.
State v. Mullen, 35 Ia.
199, 205, 206. What more jurisdiction, as used in the statute, may
embrace, or what law or laws properly would determine the civil or
criminal effects of acts done upon the river we have no occasion to
decide in this case. But, so far as applicable, we adopt the
statement of Chief Justice Robertson in
Arnold v.
Page 192 U. S. 585
Shields, 5 Dana, 18, 22:
"Jurisdiction, unqualified, being, as it is, the sovereign
authority to make, decide on, and execute laws, a concurrence of
jurisdiction therefore must entitle Indiana to as much power --
legislative, judicial, and executive -- as that possessed by
Kentucky over so much of the Ohio River as flows between them."
The conveniences and inconveniences of concurrent jurisdiction
both are obvious, and do not need to be stated. We have nothing to
do with them when the lawmaking power has spoken. To avoid
misunderstanding, it may be well to add that the concurrent
jurisdiction given is jurisdiction "on" the river, and does not
extend to permanent structures attached to the riverbed and within
the boundary of one or the other state. Therefore, such cases as
Mississippi & Missouri
Railroad v. Ward, 2 Black 485, do not apply.
State v. Mullen, 35 Ia. 199, 206-207.
Judgment reversed.