Virginia v. Maryland

PETITIONER:Virginia
RESPONDENT:Maryland
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 12 ORIG
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 269 (1957)
ARGUED: Dec 10, 1957
DECIDED: Dec 16, 1957

Facts of the case

Question

  • Oral Argument – December 10, 1957 (Part 2)
  • Audio Transcription for Oral Argument – December 10, 1957 (Part 2) in Virginia v. Maryland

    Audio Transcription for Oral Argument – December 10, 1957 (Part 1) in Virginia v. Maryland

    Earl Warren:

    Number 12, Original, Commonwealth of Virginia, plaintiff, versus the State of Maryland.

    Mr. Hicks you may proceed?

    C. F. Hicks:

    May it please the Court, Mr. Chief Justice and associate justices.

    The argument before the court today is about the latest in a series of events which are concerned with Potomac River for approximately 350 years.

    Ever since the grant was made to Lord Calvert, the Lord Baltimore by the King of England in 1632, there has been dispute between Virginia and Maryland as to the Potomac River.

    Felix Frankfurter:

    But intermittently, intermittently you have settled it peacefully.

    C. F. Hicks:

    That’s right Your Honor.

    It has been peaceful and time in and time out it will flare up again.

    In 1776, the independence of the colonists, the two states became sovereigns it flared up in one of these intermittent times and finally in 1784 the two states each appointed commissioners, two from Virginia and three from Maryland met at Mount Vernon in March 1785 and these five commissioners drew up what I will refer to today as the compact.

    Felix Frankfurter:

    May I say that each state has the right to be part of the commissioners of each side.

    C. F. Hicks:

    I think it is just so Mr. Justice Frankfurter.

    The commissioners were outstanding men from the two states.

    There was — one of the commissioner was appointed by Virginia was James Madison.

    He was the — he was not President when the compact was growing up but Samuel Chase of Maryland, George Mason of Virginia, the author of Bill of Rights, both of these men were men were among commissioners.

    Felix Frankfurter:

    Edmund Randolph?

    C. F. Hicks:

    He was appointed, but he did not actually serve at the time the compact was drawn.

    He was appointed as one of the commissioners but he did not meet with the commissioners at Mount Vernon 1785.

    Felix Frankfurter:

    And who else James Madison (Inaudible)

    C. F. Hicks:

    George Mason.

    Felix Frankfurter:

    George Mason.

    C. F. Hicks:

    And Alexander Henderson and from Maryland Samuel Chase, Thomas, Daniel of St. Thomas Jenifer and Thomas Stone, these five were the five commissioners.

    Now the main thing that Virginia had instructed its commissioners to seek when they met with the commissioners from the State of Maryland was ownership in the southern shore of the Potomac River in Virginia and in its citizens with full right of navigation, commerce and fishery in the river proper.

    The main thing that the State of Maryland had instructed its commissioners to seek was free and unrestrained, untaxed navigation for its vessels in commerce through the Virginia capes.

    When the compact was drawn up each state got it what it desired and what it sought and in 1786 each state by their general assembles sitting respectively in Annapolis and Richmond ratified and confirmed the compact of 1785 as drawn up and presented to them by these five commissioners.

    The compact contained 13 paragraphs or provisions.

    Paragraphs one through six, nine and 12 dealt with the respective rights of navigation and commerce between the two states on the Potomac River and on the Chesapeake Bay.

    Paragraph seven and eight relate to property, riparian and fishing rights and regulations on the Potomac River and on the Pocomoke River.

    Paragraph 10 related to — or relates to criminal jurisdiction on the Potomac, Pocomoke and Chesapeake Bay.

    Paragraph 11 concerns civil jurisdiction over these same bodies of waters and the ports thereon.

    Paragraph 13 provides how the compact was to become effective and how it was to be ratified and the effect of it once it had been ratified by the two contracting states.

    C. F. Hicks:

    Now although the compact gave the Virginia and its citizen’s full property rights in the southern shores of the Potomac River, there was still a dispute from time to time as to the actual location of the boundary.

    And this was not definitely determined — the boundary was not definitely surveyed and determined until 1877 in the Black-Jenkins Award when the arbitrators Black and Jenkins one from Georgia, and one from Pennsylvania stated that in view of the compact and view of the acceptance of the compact by both states and the associates of each state that it was undisputable that the boundary was fixed at the low water mark on the southern shore.

    However, that they would describe it by points of longitude and latitude and by point description and also provided that it would not fall on the indentations of coves and bays but it would run from headland to headland on southern shore.

    Now there have been from time to time violations of the laws on the Potomac by the both the citizens of Virginia and the citizens of Maryland.

    These laws, up until this year, have been enforced on the river relating to fishery, have always been, with the mutual consent and approbation by the legislatures of both state.

    Last Fall unfortunately there was again a flare for trouble between law of enforcement officials and citizens, especially citizens of a certain section of Virginia.

    And my just in sad remark say that three — four citizens of Virginia who were arrested by Maryland officials have been extradited to Maryland and one has been tried and the other three are waiting trial, but winter of this year in Maryland general assembly met in Minneapolis.

    It passed two statutes both of which is contention of Virginia invades and violates the rights of Virginia which were given to the state of Virginia by the compact of 1785.

    The first one of these statutes is chapter 766 of the laws of Maryland of 1957.

    This chapter after setting up intention of legislature to repeal the compact did repeal the enacting statute of Maryland chapter one of 1785 which in effect repealed by Maryland or was attempted unilateral repeal by Maryland to repeal the compact of 1785.

    Felix Frankfurter:

    Does the compact have any provision dealing with its termination, abrogation, qualification?

    C. F. Hicks:

    Yes sir.

    The compact — Section 13 of the compact and the enacting clause of the compact provided that it could be changed by the mutual consent and approbation of two states.

    Felix Frankfurter:

    Where is that in your brief?

    Is it–

    C. F. Hicks:

    In my brief one place it’s found on page, pages 32.

    Felix Frankfurter:

    Is the compact printed in its entirety?

    C. F. Hicks:

    Yes sir, the compact has been printed in its entirety two times as appendix to the Bill of Complaint, once as enacted by Virginia and secondly as enacted by Maryland.

    Felix Frankfurter:

    Where is yours, Mr. Hicks?

    C. F. Hicks:

    Pages 32 and 33 of the Bill of Complaint, not the briefs, but the Bill of Complaint of the Commonwealth of Virginia.

    Paragraph 13, number 13 these articles shall be laid before legislatures of Virginia and Maryland and upon the approbation being obtained shall be confirmed and ratified by law of each state in order to be repealed or altered by either without the concern of the other.

    So there was a provision as to how it could be changed or repealed by mutual consent and then the enacting clause of respective legislatures also carried out same thing.

    Chapter 13 — I mean Article 13 was in the compact as drafted by the commissioners.

    II on 33 is the clause as found in the back pass by the general assembly of the State of Maryland and on page 26 as a clause which is to same effect except for the interchange in the words Virginia and Maryland as passed by the general assembly of the — page 26 is as passed by the general assembly of Maryland, page 33 as passed by the general assembly of Virginia.

    The second statute enacted by legislature or the general assembly of Maryland this present year is chapter 770 of the Acts of Maryland of 1957, which act in the language used by the State of Maryland and the legislature of that state in passing that statute provides as follows, “that it is a legislative intent in the enactment of this law to vest in State of Maryland all licensing provisions concerning the taking of fish or oysters, crabs and plants from Potomac river to give to the State of Maryland and its law enforcement officers complete control and jurisdiction over such fishes in the Potomac River and to give the residents of Virginia an equal right citizens of Maryland and use enjoyment of such fishes to be exercised solely under the laws of State of Maryland.

    Now this is in direct conflict with the provision of Article 8 of a compact which provided that any laws and regulations for the preservation of fish in Potomac River should be enacted with mutual consent and approbation of the legislatures of each state.

    Felix Frankfurter:

    But would you mind stating what you concede to be a Virginia — Virginia concedes to be issues before us now?

    C. F. Hicks:

    The issues we feel is one, was a compact of 1785 a binding contract and if that is a binding contract then can it be repealed by the sole unilateral action of one state as evidenced by the State of Maryland in this present year enacting primarily chapter 766 of the laws of Maryland and secondarily by carrying out its intentions by enacting chapter 770 of the laws of Maryland.

    That is a primary question that we feel is before this Court and that is this on this motion to leave to file, was this compact a contract and if it was a compact, this is a — contract, this is action by Maryland attempted breach or a repudiation of it in violation of the Constitution of the United States that provides that no state may enact any laws which impair the obligation of a contract.

    Felix Frankfurter:

    And I suppose I want to agree with you, so that necessarily followed, suppose I agree with you, (Inaudible) conclude that this bill is properly filed (Inaudible)

    C. F. Hicks:

    I think that Mr. Justice Frankfurter that you must, if you agree that there is a contract and agree that these statutes by Maryland, are repudiated.

    Felix Frankfurter:

    Every breach an agreement, every breach of a compact legally is centered upon necessarily gives rise to the original jurisdiction of this.

    C. F. Hicks:

    It is our contention that it does, and that this state has taken original jurisdiction in many instances.

    In fact we can’t find anywhere it hasn’t, where there is contract.

    There has been many cases, where the state —

    Felix Frankfurter:

    Must an ordinary court of equity always enforce a contract?

    C. F. Hicks:

    We think that in a case such as this —

    Felix Frankfurter:

    Leave alone the contract between the states, I’m not saying it isn’t so, but I just want to probe your position.

    C. F. Hicks:

    Yes sir, well —

    Felix Frankfurter:

    That we must at once go to what do you have denominated constitutional question, the same with first construction, is this a compact, is it a contract, constitutionally protected and you say if the answer to that is yes, then inevitably relief must follow on this sale and if the bill must be entertained and relief must follow, is that your position?

    C. F. Hicks:

    That’s our position because we feel in this case a court of law couldn’t handle it because there is no way to determine damages for a breach of contract.

    Ordinarily between two private parties there can be for breach of contract there might not be a (Inaudible) performance release, there will be damages, but we can’t conceive how in a case such as this, of a compact between two states dealing with the use of a river, that a court of law could fix liquidated damages.

    Felix Frankfurter:

    And you do not address yourself, as I understand, to the question, whether the nature of the claim made by Virginia, the impact, the magnitudes, the range of the alleged damages, the alleged — the nature and scope of the briefs, and the scope of the damages flowing there from are of such a nature that this Court must take jurisdiction?

    C. F. Hicks:

    Well we do, yes sir, we like that’s part of it too, but we think if the Court has jurisdiction, before we actually come in and prove the amount of damages that —

    Felix Frankfurter:

    All I want to know is as I understand that I think your answer, that if there is a contract, an existing contract, a unilaterally non-repealable contract through the compact and there is a breach that this Court must exercise its jurisdiction, not that it doesn’t have it, but it must exercise it.

    C. F. Hicks:

    I feel that it must exercise its jurisdiction, that as early as the cases of Fletcher versus Peck and Green versus Biddle, the Court held that when there was appearing of obligation of a contract by the laws of one state, even though that state may have been a party to the contact, then not only was it the authority of this Court, but that it was the duty of this Court.

    Felix Frankfurter:

    Aren’t those cases very different Mr. Hick?

    This Court said again and again that the nature of this Court’s jurisdiction in hailing another state before it (Inaudible) not a mechanical jurisdiction, but involves consideration that transcend those of ordinary litigation.

    C. F. Hicks:

    That’s right Your Honor, I agree with that wholeheartedly.

    Felix Frankfurter:

    As to this case?

    C. F. Hicks:

    As to this case —

    Felix Frankfurter:

    In due course –-

    C. F. Hicks:

    We’ll cover that.

    Now I feel that the compact of 1785 has been long recognized by the Court and by the courts of both states and by, in fact all of the courts of the land before which the question has come as being a binding contract and full force and effect upon the two states and that up until this year no one has questioned the validity of this compact or its obligations there under.

    The High Court of the State of Maryland in a fairly recent case of Barnes versus State, 186 Maryland, 287 recognized the compact.

    This Court in Wharton versus Wise 153 U.S. 155 and in Marsh versus United States, 174 U.S. 196 and in Maryland versus West Virginia, 217 U.S. 577 have all held that the compact was binding upon the two states, have held that the compact did fix and effect the boundary as meaning at the low watermark on the southern shore, because when it gave Virginia and its citizens full property rights, in the southern shore of the Potomac River and when Maryland assented to this, this in effect did fix the boundary, although it wasn’t until later, approximately 100 years later an actual survey and point to point description of the boundary was made in the Black-Jenkins Award.

    Now this Court in a case of Kentucky versus Indiana, 281 U.S. 163, which dealt with a contract between the states of Kentucky and Indiana for the building of a bridge between the two states.

    Indiana wanted to carry out its contract, but a group of its citizen instituted a suit in a State Court attempting to stop the state of Indiana from carrying out its contract and Kentucky invoked the original jurisdiction on this Court.

    This Court in an opinion by Chief Justice Hughes said, the State of Indiana while desiring to performance its contract, is not going on with its performance because of a suit brought its citizens in its own court.

    There is thus a controversy between the states although a limited one.

    C. F. Hicks:

    In a controversy with respect to a contract between states, as to which original jurisdiction that this Court has invoked, this Court has the authority and the duty to determine for itself that pertaining to the obligations of the contract (Inaudible) where the states themselves are before this Court for determination of the controversy between them, neither can determine their rights (Inaudible) and this Court must pass upon every question of central such determination.

    Now with respect to the whole — the question now before this Court is of much greater magnitude than one bridge over really between two states.

    The question before this Court now is the right of Virginia and its citizens to equal use of the Potomac river, a river which exists as a boundary of Virginia for over 100 miles and that the compact —

    William O. Douglas:

    I understand that Maryland doesn’t test that, Maryland merely takes position that my understanding (Inaudible)

    C. F. Hicks:

    That’s right Your Honor and also that —

    William O. Douglas:

    (Inaudible)

    C. F. Hicks:

    No, in addition that Virginia fisherman must get a license and that Virginian fisherman must comply with laws passed by the state of Maryland for regulation of fishery which are not presented to by Virginia and thirdly that the officials of Maryland have sole authority and jurisdiction over Potomac River and that fishery officials of the State of Virginia who have been patrolling the river for these 172 years no longer have any authority to patrol the river and make arrest of consent of concurrent laws.

    If it please the Court, we feel that a sample illustration of this, is suppose that A and B were each given a tract of land adjacent to each other by a common grantor.

    And there was some conflict as to the boundary between those two tracts of land and has apartment house on that boundary line and as astute between the two parties A and B as to who has the ownership of that apartment house and they finally agree that the land doesn’t (Inaudible) the apartment for belong to B, but that A can have full use of one floor of the apartment house can lease of it out to any tenants that he wants to, upon their making rental agreements with them, but that as to agreements for the upkeep of the house and agreements for regulation of the tenants as to noise and things of that nature, it shall be those which are agreed upon by both A and B.

    And then B comes in and tells A, I don’t like some of you tenants therefore I am not going to put him out, but from now on they will have to pay all their rent to us, B and they also have to agree with whatever we say and you have no more say, except your tenants can still stay in here and that’s the same thing we have now.

    Maryland has said we are repudiating the contract, but we are going to be generous, we are going to let your citizens still use the river as long as they buy our licenses, as long as they comply with our laws, as long as they obey our fishery officials, your fishery officials have no more say over the river.

    Your legislature has no more say over trying to preserve the oysters, and shell fish and thin fish in the river.

    So —

    William O. Douglas:

    Are there any provisions in the compact (Inaudible)

    C. F. Hicks:

    I think Your Honor that the two states under the compact laws could —

    William O. Douglas:

    (Inaudible)

    C. F. Hicks:

    No, Your Honor the compact leaves (Inaudible) the question of licensing, so therefore that comes, if it’s a regulatory license which I think that this license of fishery is, it’s $10 or $15 license if it’s a regulatory license, than it is a license dealing with the preservation of fish in the river.

    And any license provisions have to be mutually concurred in and consented to by the legislatures of both states.

    Now what has been concurred in by the legislatures of both states in the past is Virginia citizens comply and purchase a license from Virginia.

    Maryland citizens comply with and purchase a license from the State of Maryland up until June the 1st of this year.

    After June the 1st of this year Maryland officials came to our citizens facing in the river and told them that if you don’t have a Maryland license you will be arrested, you will be tried, you will subject to fine and imprisonment.

    It doesn’t make a difference so you have a license from Virginia and that is not in the record and not in the Bill of Complaint, but quite honestly when various local Commonwealth attorneys called us up and asked our advice we told them to give advise to their citizens to comply with the Maryland laws temporarily and buy a license in order to not have their boats be subject to forfeiture and not lose a day’s work while being carried into Maryland courts, since it was a nominal sum, and while we were determining whether Maryland could take over complete control of the river.

    Now the thing that bothers Virginia is not so much right now of a nominal $10 or $15 license.

    But if the State of Maryland, can abrogate the compact and levy a license on our citizens, without the consent of Virginia, the next thing they can do is come along and deny them rights to fishery entirely in the river.

    Felix Frankfurter:

    Suppose Maryland had just passed a statute of abrogating the compact, would you have a standing?

    Would that afford your original action here?

    C. F. Hicks:

    We feel that —

    Felix Frankfurter:

    Just the decoration of abrogation.

    C. F. Hicks:

    We feel Your Honor that it would, the same way that —

    Felix Frankfurter:

    It does nothing.

    Felix Frankfurter:

    It just — hereafter redeem the compact of (Inaudible), but it takes no action in consequence?

    C. F. Hicks:

    Well even though it takes no action, that there is several things, one thing it puts a cloud on title, the Virginia shores of certain residents along Virginia, the second thing it does it puts a question as to jurisdiction of the laws of the two states on the Potomac River, the third thing it does is a question of jurisdiction of the fishery officials of the various — of the two stations to enforce the laws, just that decoration by itself.

    Felix Frankfurter:

    Let me push it back, suppose the Governor of Maryland, a Governor of Maryland, in his annual message to the legislated recommends that.

    C. F. Hicks:

    Just recommended it, well that —

    Felix Frankfurter:

    It was a kind of a brought on title as you call it.

    C. F. Hicks:

    Well just recommended without concrete legislative action would not and we don’t think at any — this was just the action by a Maryland official in arresting one of our citizens, without this action by the legislature, then it wouldn’t go to the reason of jurisdiction in this Court, as this Court said in the case of —

    Felix Frankfurter:

    That would be —

    C. F. Hicks:

    — Texas versus Louisiana or Louisiana versus Texas.

    Felix Frankfurter:

    That would be too remote and vague.

    C. F. Hicks:

    Vague, and also this Court has said that a state cannot come in and invoke the original jurisdiction in this Court just to vindicate its grievances against the mal-administration of a sister state’s laws by an official of that state, but we have more than that here.

    We have the —

    Felix Frankfurter:

    Therefore then I could namely merely legislate a declaration, raised got a temporary matter on and we got (Inaudible) is abrogated.

    You think that would give you standing (Inaudible) that would require us to give some relief.

    C. F. Hicks:

    I honestly —

    Felix Frankfurter:

    That is in this case of course.

    C. F. Hicks:

    I honestly believe Your Honor, that, that would.

    I think this case is more, because we have a second statute carrying out that intention, we also have the law enforcement officers carrying out that intention, but I think just that alone, when you’ve got a contract, you’ve got a contract between two parties and one goes to the other and says I’m no longer honoring that contract, the contract was over with, well then there is a breach of the contract.

    Felix Frankfurter:

    Well I’m not denying that are breaches, what I’m suggesting to you and I ought not to speak of it anymore because you said you will consider it, that the mere fact that there are what are called technical breaches to it, I don’t mean to minimize, but what as between private persons would be clear breaches of contract, doesn’t ipso facto and by its own force, kneel this Court to bring two states before it adjudicated, but you said it again and again.

    C. F. Hicks:

    Not without there being damage on the State of Virginia.

    Felix Frankfurter:

    Well more than damage.

    It isn’t just damage.

    You take the plaintiff’s case the first time that was up. God knows there was enough damages, that too it’s running down to other states.

    C. F. Hicks:

    Missouri versus Illinois?

    Felix Frankfurter:

    And there the Court gave some very strong expressions, when you deal with the so called quasi sovereign, when you deal with the dignity of state, is very important, plus also the pressure if possible to have them to settle their controversies outside of court than within court, to have other considerations than those of that move merely as between private parties.

    C. F. Hicks:

    That’s right Your Honor, but in that case you invoke jurisdiction and then went on the questions on the merit and that’s what we are asking before Your Honors now, is that we think we have shown enough in our Bill of Complaint to invoke jurisdiction.

    Now maybe when the case gets to the Court on the merge and the evidence was put in by both sides when the Court requires evidence, then maybe it might be a showing that there is not sufficient damage for the Court to make an award to either state, but we feel that in this case where there is a long standing contract and where we have laws enacted by both states, which our court didn’t take judicial notice of, which are carried as exhibits to the Bill of Complaint, providing for the regulation of fishers, and those laws carry with it officials, fishery officials of each state patrolling the river and making arrest, they carry with it a licensing issue by the respective states to their respective citizens.

    The compact also carries in addition to fisheries, it carry certain riparian rights.

    Felix Frankfurter:

    Would you be good enough to state not to what if this is the law what will be your next step, perfectly legitimate argument, but would you restrict yourself specifically to what this act of Maryland, legislation of Maryland to the oyster industry (Inaudible)

    C. F. Hicks:

    Well it’s not just — it’s the fish industry.

    Felix Frankfurter:

    Speak specifically concrete with reference to the actual incidence of the restriction or the damage or the difficulties that are caused (Inaudible) to Virginia fishery.

    C. F. Hicks:

    What this?

    Felix Frankfurter:

    Not if they can do this, than they can do something else, that is true.

    C. F. Hicks:

    What this action of Maryland in acting these two statutes provides specially in the acting of the Second Statute of Chapter 770 is that all Virginia’s —

    Felix Frankfurter:

    Well just state it in terms of the number of fishermen involved, what the hampering that occurs after compared with what was before, gives us a vivid concrete picture of what this does to Virginia?

    C. F. Hicks:

    There are over 800 fishermen who are residents of Virginia, who rely upon to the Potomac River as the major source of their livelihood.

    This includes oystermen, people who take clams and crabs and thin fish.

    Heretofore people have known that if they comply with the license statutes of Virginia that they had a right to use the Potomac River.

    Now they must — under this action comply with the licensing laws of Maryland, they also much comply —

    Felix Frankfurter:

    Specifically what does it that, that requires?

    C. F. Hicks:

    That requires that they purchase a license from the State of Maryland to the exact amount of which for each one I would honest with Your Honors —

    Felix Frankfurter:

    What kind of — what range of license fees?

    C. F. Hicks:

    It’s a regulatory license fees of a normal sum of $5 to $10.

    Felix Frankfurter:

    Per year?

    C. F. Hicks:

    Per year.

    But it also — there are at least two patrol boats of the Commonwealth of Virginia, with five enforcement officers on the Potomac River year around.

    There are, during the oyster season at least four and frequently more patrol boats with ten enforcement officers on the Potomac River, the State of Virginia spends over $100,000 a year paying for these patrol boats, because it feels that it has a duty and obligation to preserve the fish and the river and the oysters and to see that the laws are carried out, as given to it under the compact.

    Now this action by Maryland would take — leave those people without any jurisdiction.

    When one of our men makes —

    Felix Frankfurter:

    They maybe forbidden in the waters?

    C. F. Hicks:

    They are not forbidden in the waters but they are forbidden by Chapter 770 jurisdiction to arrest —

    Felix Frankfurter:

    Arrest and all that.

    C. F. Hicks:

    — to arrest and patrol and to enforce.

    Now I don’t think a citizen, they can’t put their boat on the water, but it says that they can’t carry any duties once they were there, that that’s vested solely in the State of Maryland.

    Felix Frankfurter:

    And a Maryland patrol boat could take their place?

    C. F. Hicks:

    Maryland patrol boats should take their place and would take over completely, and what we feel is even more of a —

    Felix Frankfurter:

    Are these patrol boats — as I understand the compact is, joint jurisdiction, criminal jurisdiction (Inaudible)

    C. F. Hicks:

    Yes sir.

    Felix Frankfurter:

    Now, are these patrol boats mainly for the protection of the fishery in the river?

    C. F. Hicks:

    Mainly, yes sir.

    Felix Frankfurter:

    And would Maryland have an interest to protect the fisheries or not an interest?

    C. F. Hicks:

    They would have an interesting to protect the fisheries, but each state has —

    Felix Frankfurter:

    If it wants to have its own patrol boats.

    C. F. Hicks:

    And Virginia wants to look after its interest as well as Maryland and after its own.

    Is there any difference in the license fee payable under the Maryland law in respect to Maryland residents (Inaudible)

    C. F. Hicks:

    There is none whatsoever.

    There is this difference Your Honor though that formally a person purchased the license from Virginia was good for other waters and good for Potomac River.

    And Maryland I am not sure whether the purchase of just a license of Potomac River is not good other waters than that, but it does mean that Virginia residents have to purchase two licenses, whereas residents of Maryland just have to purchase a Maryland license, but in Virginia they have to purchase a Virginia license and a Maryland license because they want to fish up in the creeks of the river entire Virginia territory, of course they must have Virginia license whereas if they want to fish within the river proper under this action by Maryland to prevent being arrested they have to have a Maryland license.

    We feel that in the very recent case of West Virginia ex rel. Dyer versus. Sims which did not come up on the original jurisdiction of this Court, but which was the case which original jurisdiction could have been invoked, this Court said in an agreement solemnly entered into between states by those who alone have political authority to speak for his state cannot be unilaterally nullified or given final meaning by an organ of one of the contracting states.

    A state cannot be its own ultimate judge in a controversy with the sister state.

    And we feel that the State of Maryland cannot be its own judge here without any due regard for the rights of Virginia.

    Now the Maryland contends that Virginia has in effect already nullified part of the contract, because if we say that chapter Sections 1 through 6, 9 and 12 are no longer in effect because they have been superseded by the constitution, what that was, was a mutual amendment of the compact by the two states.

    Each state ratified the constitution and when each state ratified the constitution, it conveyed to and delegated to the Congress of the United States, the powers to regulate commerce and navigation over Potomac River and Chesapeake Bay.

    And each state agreed to that.

    And we have cases of South Carolina versus Georgia where the Court held in the similar instances when the states mutually ratified the constitution, they also at the same time were in effect amending or a treaty between the two states dealing with Savannah River.

    The offing of the compact by the mutual action of the two states in ratifying the constitution in no way affected the rights given to each state regarding riparian property and fisheries which is left as it was before the constitution, since that does not come under the power of the Congress of the United States.

    Assuming that this power granted do you think that results automatically in a decree in Virginia or there is a question as to (Inaudible)

    C. F. Hicks:

    Well, Mr. Justice Harlan in the opinion of Virginia we don’t believe that there is sufficient justification of factual evidence to justify format of a master.

    Now Maryland has raised a question concerning the authority of the State of Maryland to grant certain sovereign rights in Potomac and they cite the case of Illinois Central Railroad versus the People of the State of Illinois.

    Now that is possible question, but we don’t believe that’s a factual question it is more of a legal question going into the merits.

    This thing about Maryland is set out in its opposition factual allegation that citizens and law enforcement officials of Virginia have breached the compact before they do because they have violated certain fishery laws.

    Now that might be a ground for the possibility of a master taking evidence, but we don’t believe that the fact that a citizen of a state breaches a law which has been enacted by the two states under a contract makes a breach of the contract.

    We can show we have arrested in the past few years, our officials have arrested more than a 100 citizens of Virginia for violation of these laws and that this year we have extradited on request of Maryland four citizens of Virginia who have been charged by Maryland with violating the concurrent laws in the river, we have extradited Maryland for trial, one has been tried and has been convicted.

    We feel that Virginia does have a direct and substantial property interest in these proceedings because the compact vested in Virginia certain proprietary rights in the southern shores of Potomac.

    Up till the time of the compact, both Virginia and Maryland claimed the whole Potomac River and then Virginia gave up all its claims except to the southern shore.

    Maryland which had originally claimed to the high watermark gave up its claim except to low watermark on the Virginia shore.

    So there are these shores, which are proprietary right in Virginia and its citizens which are involved in this proceeding.

    They are riparian rights and (Inaudible) guaranteed to the property owners of both states by the compact which are put in doubt.

    And as a question was raised concerning these riparian and property rights of the citizens of Virginia as the compact is allowed to be abrogated.

    This Court in decision of the Maryland versus West Virginia held that not the award of 1877 but in effect the compact of 1785 fixed the boundary between Virginia and Maryland fixed — and also fixed the boundary between West Virginia Maryland and West Virginia broke off from Virginia.

    It had also fixed the boundary between Virginia and the District of Columbia because a compact was decided and agreed upon in 1785 and Maryland didn’t cede (Inaudible) to the District of Columbia to the federal government until 1789, four years after the compact and that the boundary had already been fixed on the lower watermark on the Virginia shore four years before this territory was given to the District of Columbia by the State of Maryland.

    C. F. Hicks:

    And this decision Maryland versus West Virginia has not been questioned, but it has been reiterated by at least two lower federal courts Washington Airport versus Smoot Sand & Gravel Corporation 44 federal second 342, and Marine Railway versus United States 265 federal 437, and also by the highest court of the State of Maryland in the already cited case of Barnes versus State of Maryland all of which said that it had many questions about what the compact did that this Court’s decision in Maryland versus West Virginia said that the compact did in effect established the boundary between Virginia and Maryland.

    Both we have an addition to this proprietary right in the southern shore, the compact fixed certain fishery and riparian rights both of which this Court has held our property and which can be vested and which are viable and which cannot be taken from a person without due compensation Yates versus Milwaukee 10 wall 497 was the one holding riparian rights of property.

    McCready versus Virginia 94 US 391, and Holyoke Water Park versus (Inaudible), both which hold that fishery rights of property rights and valuable rights.

    But in addition to that to any property rights we feel that an absence of showing a property right that Virginia has a, as a sovereign state a right to invoke the original jurisdiction in this case because of the quasi sovereign rights which it passed to look at the interest of its people as outlined in the already mentioned case by Mr. Justice Frankfurter of Missouri versus Illinois and by two cases where the state of Georgia invoked the jurisdiction of this Court, Georgia versus Tennessee Copper Company 206 US 230 and Georgia versus Pennsylvania Railroad Company 324 US 439.

    In the first case we have an industry in the State of Tennessee which was causing harm to property in the State of Georgia.

    This Court said the State of Georgia itself had titled very little property, but it had the right and the duty to look after the interest of its citizens whose property was being damaged and destroyed by this noxious gas being discharged by an industry in another state.

    And in Georgia versus Pennsylvania Railroad, this Court said that the State of Georgia had a right to look after the economy of the state and the right of its citizens to not being discriminated against in rate fixing by the railroad and at the state has parens patriae, had a right to come into this Court and that that right long had been recognized by this Court.

    Now the State of Maryland cites a Washington versus Smoot Sand and Gravel Company among others in saying that there is no property right in Virginia, in the salt of the bed of Potomac River.

    Well we agree under the compact that the Virginia gave up any possible claim it might have had to the bed of the Potomac River in return for free use of the river and in return for property owner, undisputed property owner on the southern shores.

    But if the compact is allowed to be aggregated, then there comes up the claim as to whether Virginia any longer has free use of the river and whether Virginia has this right of undisputed property interest in the southern shores of the river.

    The Commonwealth of Virginia is the real party in interest in these proceedings, State of Maryland contends in their opposition that the real party who have been affected is not the Commonwealth of Virginia but some 800 fishermen and oysterman in the state of Virginia and that Virginia is merely loaning its name to look after their interests.

    That is not the case, the sovereign right of Virginia to reuse and enjoyment of the Potomac River to preserve the fish in the Potomac River, to control the Potomac River, to have equal riparian right to the Potomac River, all these are cast aside by this action and invasion by the State of Maryland.

    This compact was a contract not entered into by some 800 fisherman, but rather entered into by the State of Virginia in a sovereign capacity, a sovereign capacity which was existing before the constitution was ratified and also by the State of Maryland in its sovereign capacity.

    In Pennsylvania versus West Virginia, 262 US 553 this Court said that a complaint state could come in to redress a wrong which would be done to its citizens and to look after the interest of its citizens at large by a sister state and could invoke the original jurisdiction.

    Now a number of cases cited by the State of Maryland contending it’s port side view that this is merely action on behalf of certain private citizens with Maryland loaning its name.

    These cases are cases which a state attempted to collect the debt owed to residents of its state by a sister state on bond cases, — the Oklahoma bank case, Oklahoma ex rel.

    Johnson versus Cook, 304 US 387, where Oklahoma attempted to collect from a stock holder in a bank on certain stocks for the benefit, sole benefit of creditors and depositors of the bank, the state wasn’t going to get any money of that action, and in these bond cases the state wasn’t to get any money out of the action.

    And the case was South Dakota versus North Carolina 192 US 286 where a private citizen had given, made an outright gift of bonds to the state which that citizen has gotten from North Carolina was, North Carolina (Inaudible) the state said, I mean this Court the State of South Dakota could invoke the original jurisdiction to collect that debt even though it was just a few thousand dollars, and even though this private citizen had many more thousand dollars that he was hoping the benefit would adhere to him, by this Court, the Court permitting the original jurisdiction to be invoked.

    What is the annual revenue that the Virginia gets from licensing (Inaudible)

    C. F. Hicks:

    Well Your Honor the annual revenue is — cannot be broken down as to, as to license you get from the Potomac.

    Virginia license its fishermen, and with that license they can face anywhere in the title by this water of Virginia including the Potomac River.

    Non-Potomac River (Inaudible)

    C. F. Hicks:

    That would probably be approximately 40 or $50,000.

    Just taken from the, from the Potomac River alone if and say that it’s just levied on, they are just coming from the people that fish in Potomac and nowhere else, it would run somewhere around 12 to $15,000 a year.

    But now the value of fish taken by Virginia residents and docked in on the Virginia shores amount to $3 million or $4 million a year.

    And strange it may seem although all you hear by the oyster (Inaudible) actually oysters are only about one-fourth or one-half the value taken by Virginia citizens as compared to Thin fish, Trahira and Shad and rock and fish of that sort, which the value which runs a million and half dollars a year of those taken by Virginia citizen and landed in Virginia.

    Felix Frankfurter:

    But you are not resting on a propriety interest of the state are you?

    C. F. Hicks:

    No sir we feel that there is a — there is some proprietary interest but we don’t feel that is a major concern.

    The major concern is that the sovereign right of the state as entered into this contract.

    We feel that Maryland claims that no vested rights of Virginia have been invaded by this action of there is in enacting these two statutes we disagree with that, we feel that there have been a vested rights or right of agrarian ownership of property, the rights of fishery both of which this Court has held are vested rights and are valuable rights.

    C. F. Hicks:

    Now there is another point that in closing I’d like to say a few minutes before a short rebuttal, in closing there is one point that has not been discussed by either Virginia or Maryland in their Bill of Complaints or in the briefs filed and that is if the original jurisdiction of this Court is not invoked what remedy does Virginia have?

    Section — Title 28, Section 1251 of the United States Code provides in part as follows, “the Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more states.”

    Therefore we cannot go into a lower federal court because Congress has said this is going one step forward in the constitution, not only you gentlemen have original jurisdiction but you also have exclusive jurisdiction.

    Now it is conceivable how Virginia could establish a test case and could have one of its citizens be arrested by Maryland and we go and help defend and fight it out in the Maryland court, but as this Court have said in Kentucky versus Indiana and West Virginia ex rel. Dyer versus Sims, that when there is a controversy between two states a decision by the State Court of either state would not determine the controversy.

    A state cannot be its own ultimate judge in a controversy with a sister state to determine the nature and scope of obligation between states, whether they are rise through the legislative means of compact or the federal law of governing interstate controversies is a function and duty of the Supreme Court of the nation.

    Your Honors please we are asking the court today to invoke this original jurisdiction to protect the Commonwealth of Virginia or to decide whether the Commonwealth of Virginia is entitled to protection under the compact of 1785.

    Felix Frankfurter:

    Since 1785, had Virginia and Maryland had negotiations — compact doesn’t provide an arbitral machinery, does it?

    C. F. Hicks:

    No sir.

    Felix Frankfurter:

    Now have they – questions have arisen since 1785?

    C. F. Hicks:

    That’s right.

    Felix Frankfurter:

    And those questions had been settled by negotiation, have they?

    C. F. Hicks:

    Well that’s — that was the most —

    Felix Frankfurter:

    (Inaudible) my question —

    C. F. Hicks:

    The most concrete one I can think of is the Black-Jenkins Award of 1877 when —

    Felix Frankfurter:

    There you appointed at least one very distinguished nobleman from a distinguished government I know about this (Inaudible)?

    C. F. Hicks:

    Well the former Chief Justice or Justice of the Court —

    Felix Frankfurter:

    Pennsylvania and the Attorney General or the United States.

    C. F. Hicks:

    And that was —

    Felix Frankfurter:

    Any other instances?

    C. F. Hicks:

    Well the two states have met from time to time to confer over laws but not I mean —

    Felix Frankfurter:

    I mean with reference questions arising under the compact have there been other negotiated settlements?

    C. F. Hicks:

    I would, I don’t — nowhere I can say that the negotiation settlements, there have been negotiation between the states as to mutual laws, some of the laws to pass under the compact, but heretofore Your Honor, we have one thing different.

    Heretofore states have always as this Court said in Morton versus (Inaudible) both states have always recognized a binding effect of the compact.

    Now Maryland comes along and says they are no longer recognized.

    Harold Burton:

    Does your position go far — you take your position that under this contract the two states may (Inaudible)

    C. F. Hicks:

    Yes sir that was, that was the condition provided in the compact and we think —

    Harold Burton:

    And you take the position that that is the same as the contract of purchase of goods, the court doesn’t enforce it according to (Inaudible)

    C. F. Hicks:

    Well we think that that the question here, which is really question of international law and question of treaties between two sovereigns, which this Court has said when two states enter into compacts, then that they can make a binding contract on each other to only be changed by the mutual concern of each other or as the court very recently said in West Virginia ex rel. Dyer versus Sims that one state cannot get out of a compact with sister states by its own action alone.

    Now if there is maybe Maryland as claimant maybe there is as harshness in the compact that Maryland would bring out, that’s a question that goes to the merits not to the jurisdiction of this Court.

    Harold Burton:

    Why do you go to the merits, what is the (Inaudible) as I understand you that there are no merits except that this contract is made, it has to be (Inaudible)

    C. F. Hicks:

    To be honest with Your Honor that is Virginia’s position now Maryland disagrees with that position, but we feel that that point of Maryland disagreement that position is a matter which goes to the merits not the jurisdiction.

    We agree, we, our position is this contract is binding in that they can’t get out of it, so to speak unless we agree to it because that’s the way it was passed and that’s the way it’s been recognized by 100% in two years.

    And that this is really not a law between two private people but it’s a treaty between two nations almost.

    And this Court has said when we join the union and ratified the constitution that we gave up certain rights, we can’t negotiate without the approval of Congress, we can’t enforce obligations on sister state by force, we gave up that right of use by a force and in turn we got the right to appeal to you gentlemen to decide any questions as to binding effectiveness of a contract and obligations there under.

    William J. Brennan, Jr.:

    Mr. Hicks do I understand you to say that Maryland could (Inaudible) repudiation throws a cloud of titles along the southern shores?

    C. F. Hicks:

    It is my opinion that it does Mr. Justice Brennan because one of the valuable things to property boarding a body of water is riparian rights.

    Now there is a question how much riparian rights, does Virginian have in territory owned Maryland, if the compact did not exist?

    William J. Brennan, Jr.:

    But the (Inaudible) on title is only as regards with riparian rights?

    C. F. Hicks:

    Riparian rights and the right of fisheries.

    There is a question as to whether the Black-Jenkins Award is a binding award if the contract did not exist, because in Black-Jenkins Award, they said that the award was made under the provisions of the compact and in compliance with the compact and full agreement with the validity and binding effectiveness of the compact, but if you go back and take the compact from under where does that leave the Black-Jenkins Award?

    William J. Brennan, Jr.:

    Well are all of those lands along the southern shore a private ownership?

    C. F. Hicks:

    No sir they are lands owned by the Commonwealth of Virginia and the United States of America.

    The Commonwealth of Virginia I would say owns approximately 6 to 7 miles of shore land, the United States of America owns much more because of US marine bases at Quantico, the United State Naval Proving Ground at Dahlgren, Virginia.

    William J. Brennan, Jr.:

    Now along the lands owned by Virginia, are those riparian rights were of any particular use by the state?

    C. F. Hicks:

    Well we have a state park which is used by the citizens of Virginia.

    William J. Brennan, Jr.:

    Structures built into the river?

    C. F. Hicks:

    Sir?

    William J. Brennan, Jr.:

    Are there structures built into the river, piers or the like?

    C. F. Hicks:

    I think there is one small boat pier and that’s all, and that’s land of 4 or 5 miles of river property that the state park owns, one that I know of definitely that Virginia has ownership to.

    I think there are probably occasionally smaller lots, but there are no major walls or piers by Virginia, owned by the Commonwealth of Virginia in the Potomac River.

    There is one at Colonial Beach own by the Municipality of Colonial Beach, one other than the gamut of piers that you hear so much of.

    Felix Frankfurter:

    Mr. Hicks may I ask you a question, and perhaps the two minutes it will take the Chief Justice to be good enough to give it you.

    This may well may be unfair question is not an intent, it carries no innuendo, but it does seem to be a little relevant in my own thinking.

    Suppose this Court for one reason or another would feel that this is not a suit to entertain, what would Virginia do assuming as I do that Virginia wouldn’t be spared?

    C. F. Hicks:

    Well to be Honest with Your Honor, I don’t know, I know what I would recommend to legislature —

    Felix Frankfurter:

    What would you recommend?

    C. F. Hicks:

    I would recommend that it pass statutes that says that declared that it felt that citizens had equal rights in the river and that they did not have to purchase license from Maryland and that the full weight and effect of the State of Virginia was put behind them to protect them from any harassment or (Inaudible) by Maryland officials so long as they comply with the laws of Virginia, and if we don’t have a controversy now then I don’t know what we have then.

    Felix Frankfurter:

    You might then have a military controversy.

    [Attempt to Laughter]

    C. F. Hicks:

    Just only one thing.

    Felix Frankfurter:

    You are suggesting that you are — that Virginia has invited the military?

    C. F. Hicks:

    No sir, I’m not suggesting to invite the military, but I am suggesting that Virginia should take steps to protect its citizens from harassment by Maryland officials and I think this question about saying Virginia and Maryland can negotiate, we have negotiated in the past, but in the past we’ve negotiated with the understanding by both states that the compact was still valid obligation.

    Felix Frankfurter:

    Have any attempts been made to say let’s sit down talk and talk this over?

    C. F. Hicks:

    Yes sir from time to time and an illustration of one thing has come out and is appeared as an exhibit in the Bill of Complaint Exhibit F, which is an Act of Assembly of Virginia passed in 1952 appointing commissioners for the two rivers, which we felt is a sensible approach to it, but Maryland has not seen fit to enact similar legislation, therefore that’s on our books, it will come effective any time under our theory of law that Maryland enacts somewhat similar legislation —

    Felix Frankfurter:

    That is (Inaudible)

    C. F. Hicks:

    Page 58,

    Felix Frankfurter:

    (Inaudible)

    C. F. Hicks:

    Sir, it’s in the —

    Felix Frankfurter:

    That is an invitation you indicate on the part of Virginia, let’s come down, let’s sit down and reason together, is that it?

    C. F. Hicks:

    That’s right sir, and it’s an invitation to setup a joint commission to try to work things out on the river.

    But Maryland instead of working along that lines, have come along and said we’re just refusing the whole compact.

    Hugo L. Black:

    Do you think Congress would ever any power in connection with the controversy?

    Maybe that’s not the theory here, maybe not –-

    C. F. Hicks:

    I think that if we entered into any new contract, of course it would have to be, our compact would have to be with the consent of Congress.

    I don’t think any law is enacted, pursuant to the compact between the two states would have to go through Congress, because the compact is already — but now if we entered into any new compact or if we amended and repealed or repealed and amended this compact, I think probably Congress would have to get the approval –-

    Felix Frankfurter:

    Could legislation by contracts supplanting the compact as an exercise of the Commerce Clause deal with it?

    C. F. Hicks:

    I don’t think so, as to fishery, because the fishery hasn’t come under the Commerce Clause as to the rights of the citizens of individual states.

    Felix Frankfurter:

    You sure the fish hasn’t sailed from one state to the next state.

    C. F. Hicks:

    Any further question Your Honors?

    Earl Warren:

    Mr. Kaufman.

    Joseph S. Kaufman:

    Mr. Chief Justice and Your Honors please.

    I was surprised to hear my brother speak of riparian rights since their Bill of Complaint is only based upon fishing rights.

    The only allegations in the Bill of Complaint which they seek to file is a denial of fishing rights and I was surprised to hear that, that would be an issue here, although we’re prepared to meet that.

    Now if Your Honors please, my brother has glossed over the facts in background of this thing somewhat, and I think it’s important that we go into the background of this case to see exactly what we have here and why we have it.

    Now prior to 1785, we were then under the Articles of Confederation.

    The Constitution had not been dreamed of.

    In fact this Court had not — the thought of this Court and had even been conceived.

    Now under the tangled relationship between the states that existed in 1785, there was no central authority, each state was an independent sovereign nation only bound together for a common offense.

    With that in view and with an unsettled boundary question that existed back to the 1600’s, Maryland and Virginia had two major controversies between them.

    First there was a conflict as to jurisdiction over the Potomac, the Pocomoke Rivers and parts of the Chesapeake Bay.

    Joseph S. Kaufman:

    Secondly there was a dispute over collection of tolls by Virginia on vessels passing through the Virginia Capes to Baltimore, Maryland’s major port and also a controversy on the collection of tolls by Maryland on vessels coming up the Potomac River to Alexandria which was an important port at that time on the Potomac River.

    Now prior to 1785, which would indicate that the boundary issue was not important at that time, Virginia, by the adoption of its first constitution in 1776, surrendered all claims it had to territories claimed by other states contained within her charter with the exception of the free navigation and use of the rivers Potomac and Pocomoke.

    Now Virginia in 1776 disclaimed any title to the Potomac River.

    Its some nine years before the compact was conceived and at that time the compact did not deal with the boundary dispute.

    It dealt with jurisdictional disputes, because we had no central government and because we had two independent nations at that time.

    Now, Virginia originally made this call for the compact sir, and they, according to their own call, wished to adjust and confirm the rights of each to use, to the use of navigation and jurisdiction over these two rivers.

    Based upon this premise a meeting was called in 1777 at the request of Virginia.

    It’s unimportant why this meeting was unsuccessful, but be it known that it was unsuccessful and nothing came out of the 1777 meeting.

    Now Maryland’s consideration for the compact was to have Virginia relinquish every claim to impose tolls on any vessels sailing through the Virginia Capes to Maryland and this was a condition and the instructions to the Maryland delegates sine qua non.

    If there was any reason that this could not be gotten, Marylanders would have come home without any compact.

    Now what was the call as to fishing rights?

    There was no mention whatsoever in the call, or no mention in the original negotiations.

    After we had that situation, a conference was held at George Washington’s home at Mount Vernon in March of 1785 and I think it’s important to note that, that was some ten months prior to the action of the Virginia General Assembly, which started the ball rolling for a constitution.

    The General Assembly of Virginia asked for a call of delegates for the adoption of a constitution, this was some ten months before that.

    Now what does the compact provide?

    What are the major provisions of the compact?

    What was the intention of the drafters of the compact?

    My brother has included that as exhibits in his — attached to his Bill of Compliant and Articles I through VI which are the prime articles of this compact deal with navigation of these rivers.

    They further deal with the vessels of war of both states which recognize at that time that each state had the power to make war and had the power to have vessels of war and it made the Potomac River a common highway for the purposes of navigation.

    Article VII ensured to citizens of both states full property rights which then existed in each state.

    It didn’t grant anything new.

    It kept the status quo as to property rights and also kept the status quo as to fishing rights, which they had both enjoyed in the past.

    It wasn’t a grant, it was ensuring of the present situation.

    Article VIII required that all laws and regulations necessary for the preservation of fish shall be made with the mutual consent and approbation of both states.

    Article IX dealt with the erection and maintenance of lighthouse and buoys which are since been superseded by the commerce clause.

    Article X dealt with the jurisdiction of piracies, crimes and offenses on places where the boundary was doubtful, on places where the boundary was doubtful only, which also gave an intention to the — that it was a question of jurisdiction this compact was interested in.

    Now my brother has made reference to a recent case of Barnes versus Maryland which the Court of Appeals of Maryland dealt with a criminal case on the river in which held that since the Black-Jenkins Award of 1877 there was no longer any doubtful portions of the river as to jurisdiction and therefore the river within Maryland, Maryland had exclusive jurisdiction as to crimes and that part which would be Virginia, below the low water mark, Virginia had exclusive jurisdiction.

    This Court denied certiorari of that case.

    That case didn’t recognize anything as to the validity or current existence of the compact.

    The defense that Maryland had no jurisdiction because of this Section 10 was overridden by the fact that our Court of Appeals held that Section 10 had no more meaning because there was no longer any doubtful territory.

    Felix Frankfurter:

    Is all this argument directed to the intention by Maryland that compact doesn’t exist?

    Joseph S. Kaufman:

    Your Honor we had —

    Felix Frankfurter:

    There are no legal (Inaudible) is that argument?

    Joseph S. Kaufman:

    No sir that is one of the arguments.

    Felix Frankfurter:

    But is that an argument?

    Joseph S. Kaufman:

    Yes sir.

    Felix Frankfurter:

    Well then would you be good enough to tell me when it was, what happened since 1894 when the Attorney General of Maryland in his opening arguments in Wharton against Wise put compact of 1785 between Virginia and Maryland is still a subsisting agreement and appeared the Attorney General in person —

    Joseph S. Kaufman:

    That’s correct.

    Felix Frankfurter:

    — up here to defend a citizen of Maryland —

    Joseph S. Kaufman:

    Your Honor —

    Felix Frankfurter:

    — therefore represented the interest of the state.

    What happened?

    When did the agreement evaporate between that position of Maryland in 1894 and today?

    Joseph S. Kaufman:

    I like to get to that in a minute, I have that in my mind.

    Felix Frankfurter:

    Take your time.

    Joseph S. Kaufman:

    Now if Your Honors please the other Article cited by my brother Article XI provided for admiralty jurisdiction and process, XII provided for transportation of produce between the states.

    Those have all been superseded.

    Now in the ratification I think it’s very important if Your Honors will take a look at page 26 of the Bill of Complaints sought to be filed by the State of Virginia.

    The ratification by the State of Maryland had certain conditions to it and I think these conditions are important and the purposes of it and it says and I am reading in the middle of page 26. “And whereas this general assembly — ”

    Earl Warren:

    Page six of what?

    Joseph S. Kaufman:

    Of the proposed Bill of Complaint sir, “And whereas this General Assembly are of the opinion that the said compact is made on just and mutual principles for the true interest of both governments and if executed in good faith will perpetuate harmony, friendship and good offices between the two states so essential to the prosperity and happiness of their people.”

    We think that is very important because that is again a legislative contention that this shall only exist as long as there is good faith.

    We think that there hasn’t been good faith.

    Now on the intervening years if Your Honors please —

    William O. Douglas:

    (Inaudible)

    Joseph S. Kaufman:

    That is correct sir.

    Now in the intervening years we had the adoption of the constitution and we had the arbitration award of 1877 which my brother has referred too.

    We have had several cases which immutably set the boundary of the State of Maryland to the south or low watermark of the Virginia shore.

    Now Maryland undisputedly has title to the river and as title owner to the river has title to all fish including thin fish and shell fish and it is our contention with title in the State of Maryland, it is not only the right but the duty to protect and conserve those assets for its citizens and for others who might have the title.

    Now what is the current situation there sirs?

    Earl Warren:

    May I ask, may I ask going back to that page 26?

    Joseph S. Kaufman:

    Yes sir.

    Earl Warren:

    What you do with the last sentence on that page, which says this law shall never be repealed or ordered by the legislature of this government without the consent of the government of Virginia, that’s the act of Maryland I take it that confirmed the compact.

    Joseph S. Kaufman:

    That is correct sir.

    Earl Warren:

    Now what do you do with that language in view of —

    Joseph S. Kaufman:

    Well if Your Honor please it goes to the question as I see it whether, one as just Mr. Justice Black said, whether a contract must exist in perpetuity when there is a change of circumstances, where there is a lack of good faith then I think the honor that the State of Maryland gave — they have a right to look at those circumstances as they then exist and to take such action as it might be necessary to protect its assets, in this case the property on the Potomac River.

    Felix Frankfurter:

    Do you agree that this Court can then sit in judgment whether the circumstances of the nature, which you’ve indicated justified, a unilateral declaration of obsoleteness or termination?

    Joseph S. Kaufman:

    Your Honor, if — if Your Honors agree to hear this case that will be a prime issue we feel, yes sir.

    We feel —

    Felix Frankfurter:

    Would you agree — would you agree that the determination of Maryland that circumstances have arisen or had arisen which involved an implied revocation or termination of the compact is subject to judicial review?

    Joseph S. Kaufman:

    Well if this Court takes jurisdictions as I say, and listens to this case that will be one of our prime defenses.

    Felix Frankfurter:

    I don’t think I’ve put my question clearly and —

    Joseph S. Kaufman:

    I don’t understand.

    Felix Frankfurter:

    My question is this, is it a justiciable question whether the circumstances would you say justified Maryland in saying this compact is no longer in existence are in fact circumstances that are justified.

    Of course if we take jurisdiction, we take jurisdiction.

    What am I asking you is whether this Court is entitled to take jurisdiction?

    Joseph S. Kaufman:

    May I rephrase your question as I understand it sir.

    Felix Frankfurter:

    You can do.

    Joseph S. Kaufman:

    Is this a case or controversy then within the meaning of —

    Felix Frankfurter:

    That isn’t my question at all.

    My question is that since on the face of things there is an agreement, a compact between Virginia and Maryland and Maryland says said certain facts have arisen, events have come to pass which put the kind of termination to this compact that impliedly would put determination if people have written out their thoughts in 1785, may Maryland urge that as a subject for its own determination or is the existence of that justification itself a justiciable question?

    Joseph S. Kaufman:

    Well I think Your Honor I can answer this by the that Maryland has the right to make that initial determination, any party to a contract has the right to determine if a breach has been made by the other party and to take its remedies.

    Felix Frankfurter:

    And it maybe by found by a court it has misjudged its rights.

    Joseph S. Kaufman:

    That is absolutely true, that has happened many times sir.

    Earl Warren:

    What court would judge that here?

    Joseph S. Kaufman:

    Your Honor I think that this is not the proper Court for this reason.

    My brothers rely on Section 7 and 8 of the compact.

    Now Section 7 and 8 do not grant anything to the State of Virginia or the Commonwealth of Virginia, it grants it to the citizens.

    Now the citizens are the people who have the right, if they have any interest to be protected.

    The Commonwealth has no proprietary interest.

    Joseph S. Kaufman:

    They have alleged none in their Bill of Compliant.

    They have only alleged a vague right they say that they have.

    They don’t say what that right is, where they derive it, but the citizens of Virginia have the right of fishing in the river.

    The Commonwealth doesn’t say that it is engaged in a fishing business.

    Felix Frankfurter:

    But is it one or the other, if it must have been either or —

    Joseph S. Kaufman:

    If Your Honors please —

    Felix Frankfurter:

    — to either citizen or state —

    Joseph S. Kaufman:

    If Your Honors please I think my brother in his brief has raised the point of the case of Pennsylvania versus West Virginia and this Court very clearly laid down that the reason this Court took jurisdiction was the fact that the state had a proprietary interest in seeing the natural gas flowed from West Virginia into the states of Pennsylvania and Ohio to heat the schools and other governmental institutions.

    And secondly said and I think this is very important that we will — they have a right to protect their citizens because they infect the citizens of the entire state.

    And the Court made a very important point of that, that it wasn’t an isolated section of the state or a small portion of the state they were protecting, but they were protecting substantial part or the entire state.

    Now let’s look at what Virginia claimed here.

    We have four or five counties in the northern neck of Virginia, Virginia is approximately a 100 counties affected.

    We have a claim of some 800 citizens, I don’t know the population of Virginia but I am assured that that is not a substantial portion.

    They came to this Court and asked for a temporary restraining order on behalf of some 200 Virginia oystermen.

    Those are the real parties in interest if Your Honors please, the persons who they say are defeated, the Commonwealth sets up no right in its own name.

    The Commonwealth isn’t adversely affected by the action of Maryland nor the citizens frankly because they still are out on that river today fishing and oystering and they will continue under the acts of Maryland.

    The acts of Maryland were to discriminate against Virginians.

    The situation arose because there was no law on the river, because there was chaos because two states had different laws on the river and I think that’s where I like to get into, and if Your Honors would understand that, you will see why Maryland’s action was absolutely necessary and the only course it had before it.

    Hugo L. Black:

    That’s the question on the merits, isn’t it?

    Joseph S. Kaufman:

    Well, Your Honor [Attempt to Laughter] it’s hard to distinguish with the questions whether we are on the merits or whether we are talking in generalities, but I think this is important in order that you get the background —

    Felix Frankfurter:

    What you are saying is that on the face of things, since this involves x number of fishermen with a total product of x million dollars, it’s relation to the whole interest of economic interest of State of Virginia is too small for the –-

    Joseph S. Kaufman:

    It’s minute.

    Felix Frankfurter:

    Is that your point?

    Joseph S. Kaufman:

    That’s correct.

    It’s an insubstantial amount.

    We have 200 oystermen I don’t know how many citizens there are in Virginia, but I am sure there are many million.

    Felix Frankfurter:

    That’s not a secret you know?

    Joseph S. Kaufman:

    Well, I don’t know the current figure sir.

    William J. Brennan, Jr.:

    What fishermen and oystermen have to get Maryland licenses, only those who are regularly engaged in the business?

    Joseph S. Kaufman:

    Well, any person who is engaged in tonguing for oyster or for fish that’s —

    William J. Brennan, Jr.:

    (Inaudible) suppose I sat myself with a pair of tongues (Inaudible) West Virginia went on to river to tongue –-

    Joseph S. Kaufman:

    You would have to get a license.

    William J. Brennan, Jr.:

    Even though I didn’t —

    Joseph S. Kaufman:

    Well, we make no distinction between those engaged —

    William J. Brennan, Jr.:

    Well we could say that isn’t it that every Virginian who wanted to make use of the river would have to have a Maryland license —

    Joseph S. Kaufman:

    I think that’s a —

    William J. Brennan, Jr.:

    Whether he is in the business or not.

    Joseph S. Kaufman:

    I think that’s correct.

    William J. Brennan, Jr.:

    Well, then can you really say that this is limited to the interest of 800 odd —

    Joseph S. Kaufman:

    That’s what they allege sir.

    That’s their Bill of Complaint.

    I assure you if there were more people in concern that the Commonwealth would allege that.

    Now if Your Honors would —

    William O. Douglas:

    This compact of course is (Inaudible)

    Joseph S. Kaufman:

    Not, in its original conception no sir.

    William O. Douglas:

    (Inaudible)

    Joseph S. Kaufman:

    Impliedly yes sir because Congress approved the Black-Jenkins Award.

    William O. Douglas:

    There was no express ratification?

    Joseph S. Kaufman:

    No express ratification has come.

    William O. Douglas:

    (Inaudible)

    Joseph S. Kaufman:

    That’s correct sir.

    Earl Warren:

    Assuming as you say that the rights under this compact were under the citizens of Virginia, distinguished from the state and there was a breach by Maryland, how could it be remedied?

    Joseph S. Kaufman:

    Well if Your Honors please very same way that a Virginian now being tried in the Maryland courts.

    He will plead to the jurisdiction of the court to triumph.

    He will plead to the jurisdiction of Maryland to regulate it, claiming his rights under the compact.

    That’s the way most of these cases come to this Court.

    The cases my brothers relied on have come to this Court.

    Green versus Fiddle came to this Court that way.

    Fletcher versus Peck came to this — back to this Court that way, West Virginia versus Sims came to this Court that way.

    That’s the proper method to get it adjudicated.

    Earl Warren:

    Now may I ask one more, one more question please you say it is one of your arguments that this contract — this compact is not live today.

    When it did become extinct by reason of your 1956 Act or the constitution or when?

    Joseph S. Kaufman:

    We feel that over a period of time somewhat before, and I would like to go into those facts as to why we think that Virginia by her own action has really breached this compact, if I may do that, it is not on the question here today, but I think it’s important.

    Back in —

    Felix Frankfurter:

    Much on the question you said no compact we got a very different problem?

    Joseph S. Kaufman:

    All right sir.

    Back in 1928 the United States Bureau of Fisheries made a survey of oysters in the Potomac River and at that time they found the river, I think the word they used was denuded of oysters.

    That brought some very quick action by Maryland and Virginia, In 1930 the Commonwealth of Virginia said that dredging operations for oysters which had previously have been legal are now illegal and Maryland adopted the same statute 1931 at its session of legislature.

    Both states at that point realized the necessity for conservation and as a result the oysters bars of the Potomac River have been replenished and there are now oysters in the river.

    Now during the war, there was a great need for seafood, prices for seafood rose substantially and the bars were very well recovered.

    They were good supply and what happened, we have what we known in ground as the Virginia scrapping fleet was inaugurated which was about 50 or 60 high speed boats which were engaged in illegal dredging.

    And during the war years because of the exigencies of the time enforcement was unfortunately quite poor.

    Now the survey made by the Maryland Department of Tide Water Fisheries shows at that time, that over five (Inaudible) of all oysters taken from the river were illegally taken.

    Now Maryland after the war started to get hot about this.

    They started to take some action.

    They had men and materials back to do it.

    And the Virginian authorities unfortunately took no action to halt this illegal dredging.

    And unfortunately the overwhelming sentiment in Virginia was against the state’s anti dredging law and what happened as a result of (Inaudible)

    Felix Frankfurter:

    This is private dredging Mr. Kaufman?

    Joseph S. Kaufman:

    Sir?

    Felix Frankfurter:

    This was — this illegal dredging as you call it was private —

    Joseph S. Kaufman:

    Or by citizen.

    Felix Frankfurter:

    Yes, I understand, I just want to be sure.

    Joseph S. Kaufman:

    Virginia doesn’t engage in fishing business.

    Now what happened in 1946?

    Virginia by chapter 235 of its laws makes it permissible to dredge in the Potomac River.

    It cited the legislative policy of Virginia as the public policy of Virginia that dredging is legal.

    It is still recognizes the compact, but the legislative policy is there set forth, the dredging of oysters in the river is legal.

    And once you have that legislative sanction, you have chaos because Maryland’s legislative policy is opposed to dredging and Virginia’s legislative policy is in favor of dredging and there is where the trouble started.

    Illegal operations were encouraged in Virginia because Virginians, all they had to do when they go before a jury in Virginia, if they are ever picked up for dredging, well the legislature said it is perfectly all right.

    Joseph S. Kaufman:

    There — we are bound to the legislature of Virginia, not the legislature of Maryland and conviction are — were impossible everything about the whole — there was chaos as a result of it.

    There was confusion in law enforcement.

    There were shootings, unfortunate injuries to the law enforcement officers, and there was other chaos on the river.

    Now we there contend that there is where the good faith, the Virginia shore of Maryland ceased because we had no law in the river, we had shooting of Maryland law enforcement officers what is the result had to happen, the State of Maryland is now from the United States navy under a lease arrangement had to get PT boats to halt this.

    That’s how —

    William J. Brennan, Jr.:

    As I understand you this all started with joint legislation, anti- dredging legislation?

    Joseph S. Kaufman:

    Back in 1931, yes sir.

    William J. Brennan, Jr.:

    Did Virginia repeal it’s (Inaudible) purport to?

    Joseph S. Kaufman:

    It purported to repeal it if Maryland ever repealed its anti- dredging legislation sir.

    William J. Brennan, Jr.:

    But it could otherwise, under the compact.

    Joseph S. Kaufman:

    It could not, that’s correct.

    But Maryland was — we didn’t have two laws on the river in effect, and it just was an impossible situation.

    William J. Brennan, Jr.:

    Well except that I take it legally there is still subsistence, the joint legislation —

    Joseph S. Kaufman:

    If Your Honor please, even in brother’s Bill of Complaint on page 55, you’ll see Section 28-242, which sets up the dredging situation.

    It’s codified as part of the code of Virginia.

    Virginians recognize it.

    They always make this defense in every case that are tried under Virginia, that the legislature has sanctioned dredging and we have chaos.

    Earl Warren:

    here do we find these — where do we find these facts that you are just telling us about in the papers of the case?

    Joseph S. Kaufman:

    Your Honor they are not in the papers in the case at this stage.

    Earl Warren:

    (Inaudible)

    Joseph S. Kaufman:

    But this act is —

    Earl Warren:

    Are these things all conceded by Virginia, do they agree with you that these are the facts of the case?

    Joseph S. Kaufman:

    If they are not, they’ll have an opportunity to deny, I think —

    Earl Warren:

    How are they going to deny them, in this argument you mean?

    Joseph S. Kaufman:

    The Act itself in the Bill of Complaint sir.

    The reasons for the act I’m giving you and a result of the Act I’m giving you.

    We haven’t — we can go to the affidavits that were given on motion for opposition to the issuance of the temporary restraining order we set forth sir.

    Earl Warren:

    Well isn’t it clearly — doesn’t that clearly go to merits of why Virginia should not have the relief they ask for, rather than to whether this Court has jurisdiction to —

    Joseph S. Kaufman:

    Your Honor I went into this question because it was asked me when did we think that the Virginia has itself breached the compact?

    Felix Frankfurter:

    No, my question was a little different.

    Felix Frankfurter:

    When did the compact evaporate which the Attorney General of Maryland said in 1894 was subsisting?

    Joseph S. Kaufman:

    That’s correct.

    Well I’m trying to show you how it evaporated then sir.

    That’s my point.

    William J. Brennan, Jr.:

    Well the answer to when is that it’s after the 1946 —

    Joseph S. Kaufman:

    Yes sir, we feel that between — in this post war era.

    Hugo L. Black:

    Well it would have to be under your argument wouldn’t it that when Maryland passed its laws repudiating the contract, let’s suppose that Virginia had brief it under the compact law.

    Joseph S. Kaufman:

    Yes sir.

    Hugo L. Black:

    And you claim that would give Maryland right to reach in advance.

    Joseph S. Kaufman:

    Maryland only —

    Hugo L. Black:

    (Inaudible) repudiate it?

    Joseph S. Kaufman:

    Repudiate it, formalize it and repudiate it.

    Hugo L. Black:

    Because that would be, you would say by mutual consent there.

    Joseph S. Kaufman:

    That’s correct.

    Hugo L. Black:

    And you are claiming that Maryland taking advantage of the repudiation of the contract by Virginia as you allege, plus your activity in Maryland constitutes a repudiation of it by mutual consent?

    Joseph S. Kaufman:

    Well we think that it’s been repudiated, and all that Maryland did was formalize the showing —

    Hugo L. Black:

    Virginia couldn’t repudiate it by itself?

    Joseph S. Kaufman:

    Well Virginia had no reason to, it’s one way street to Virginia, Virginia gives up nothing and get everything sir.

    Hugo L. Black:

    Even if it had all the reasons in the world, it’s (Inaudible) contract law wouldn’t nullify the contact, it would take mutual consent of the parties, wouldn’t it?

    You can sue them for the breach.

    Joseph S. Kaufman:

    If one party breaches a contract, the other party has certain remedies.

    One of those remedies is rescission.

    Hugo L. Black:

    That’s right.

    Joseph S. Kaufman:

    And that is what the —

    Hugo L. Black:

    That’s what you are claiming?

    Joseph S. Kaufman:

    That’s what the legislature of Maryland found in the preamble to its own act.

    Felix Frankfurter:

    Mr. Kaufman —

    Joseph S. Kaufman:

    It cites that, that’s on page — starting at page 71 of the Bill of Complaint, the preamble sets all that forth why the Maryland legislature had to take this action because of these breaches.

    Hugo L. Black:

    If that’s the issue why is it a typical case for the courts?

    Joseph S. Kaufman:

    Because it’s not a case for this Court on it’s original jurisdiction.

    Hugo L. Black:

    But it is a typical case for courts, but not this Court?

    Joseph S. Kaufman:

    That’s correct.

    Hugo L. Black:

    Your argument yesterday under this, that this Court should take it, but should wait and let Virginia citizens be arrested where they could raise the question.

    Joseph S. Kaufman:

    Precisely sir.

    Felix Frankfurter:

    Mr. Kaufman may I say that, if you will let me, that your engaging example of modern — products of modern law schools in which pleadings are very casual and informal, but there is something left to pleading, I suspect even in the most modern of law schools, and in what the State of Maryland put in over your signature, it is that you waive an answer and in effect what old timers like me call it a demurrer to the complaint, that’s the essence of it, isn’t it?

    Isn’t that what you put in for Maryland?

    Joseph S. Kaufman:

    I said without waiving its right to file an appropriate answer.

    Felix Frankfurter:

    Without waiving yes, you haven’t — but you didn’t put that in, you demur to this bill.

    Joseph S. Kaufman:

    I think that’s a fair statement.

    Felix Frankfurter:

    That’s a fair statement.

    Therefore, what we have before us is whether the bill on its face makes out a cause of action.

    Joseph S. Kaufman:

    That’s correct.

    And as —

    Felix Frankfurter:

    Everything you’ve said the last 15 minutes which I have listen to or ten minutes was genuine interest, doesn’t seem to me to fall within your demurrer.

    Joseph S. Kaufman:

    I think you are right sir and I was only trying to answer Your Honor’s question.

    Felix Frankfurter:

    Well, but you’re raising a new issue which I must say is an important issue, but not within the pleadings if I may mention that now obsolete word.

    Joseph S. Kaufman:

    All right sir.

    Well I’ll get back to the argument in chief sir if I may?

    We contend that this Court should look behind the official title in this case and see who are the real parties in interest.

    We think that there is sufficient statements of this Court.

    In the recent case of Arkansas versus Texas, this Court said it would look behind the title of the case to see who are the real parties in interest.

    Now Virginia in its own right claims no irreparable injury to any of her public institutions, any of her governmental agencies.

    She contends only that there is a potential invasion to her citizens, because Maryland sometime in the future might deprive her citizens of fishing on the Potomac River.

    Now, as I have said earlier, we are dealing with a very limited number of citizens of Virginia and I don’t think it’s parens patriae that the Commonwealth of Virginia can exercise that right for such a limited number.

    Now, the question I brought there —

    Earl Warren:

    Wasn’t that involved in the Georgia Tennessee case?

    Joseph S. Kaufman:

    Well the Georgia Tennessee case the entire air over a substantial portion of the Georgia is polluted sir with noxious gases.

    It was a protection of the air rights over the state which no individual claimed the air rights.

    It wasn’t an individual’s claim as to the noxious fumes in the air.

    It was the state’s rights.

    Joseph S. Kaufman:

    It was the state’s property in the air.

    It wasn’t individuals who were affected.

    Hugo L. Black:

    I suppose that each individual could have brought a suit maybe under that law.

    Joseph S. Kaufman:

    I think each individual probably could have sir.

    Here is what this Court I think said, and I think this sums up our position very quickly on this point.

    In order then to maintain jurisdiction of this Bill of Complaint as against the State of Texas, I’m quoting from Louisiana versus Texas, it must appear that the controversy to be determined is a controversy arising directly between the State of Louisiana and the State of Texas, and not a controversy in vindication of the grievances of particular individuals.

    Now if Your Honors please, we claim that there are particular individuals who we feel seek refuge behind the cloak of the compact to carry on illegal dredging and that’s the reason we’re here today.

    We think it’s clear on the face of it, that the State of Virginia makes this claim as in paragraph 13 — I think it’s 12 and 13 on behalf of these citizens.

    It doesn’t mention on its own behalf.

    Paragraph 12 sets forth the total number of Virginians and paragraph 13 cites the untold hardship on approximately 200 citizens of Virginia who annually engage in tonguing for oysters as a means of a livelihood.

    That’s the basis of this Bill of Complaint.

    Now there is one other thing I would like to dwell on if I may sir.

    Earl Warren:

    Before you get to that, suppose Virginia had taken the action that you took, would she have had the right to do it?

    Joseph S. Kaufman:

    Well sir, as a practical matter Virginia never would because it’s getting something for nothing.

    Earl Warren:

    Well let’s just say that she did do it.

    Joseph S. Kaufman:

    That she did take the action?

    Earl Warren:

    Same action that you took.

    Joseph S. Kaufman:

    We would be perfectly happy.

    Earl Warren:

    Well I — you might be happy but would there be any justiciable rights?

    Joseph S. Kaufman:

    I think not sir.

    They are a sovereign state, just as Maryland is a sovereign state.

    Charles E. Whittaker:

    (Inaudible)

    Joseph S. Kaufman:

    If Your Honor please, the contract in 1785 undoubtedly had some legal validity, but what is the legal validity in 1957, we contend there is none anymore.

    Charles E. Whittaker:

    (Inaudible)

    Joseph S. Kaufman:

    By change of circumstances, by the lack of good faith.

    Charles E. Whittaker:

    Then why are you (Inaudible)

    Joseph S. Kaufman:

    For the simple reason that we just formalize, what we had already thought existed.

    Charles E. Whittaker:

    (Inaudible)

    Joseph S. Kaufman:

    Well if Your Honor please, I don’t know how you could specifically enforce the rights that are alleged to be violated here by the State of Virginia.

    The State of Virginia alleges that we haven’t gotten confirmed legislation with them on this repeal and therefore they’re entitled to some relief, but I don’t see how that could be a specific force, because there again it’s a political question.

    Joseph S. Kaufman:

    It’s a question of whether the legislatures of both states as a political matter decide what the legislative policy of the state is.

    I hope I’ve answered your question sir.

    William J. Brennan, Jr.:

    You answered the Chief Justice with — you thought Virginia might adopt this kind of legislation requiring citizens of Maryland to take out Virginia license?

    Joseph S. Kaufman:

    Well if Your Honor please, I don’t know that Virginia would have any jurisdiction that do so, it’s not within the territorial jurisdiction, Virginia is solely within the territorial jurisdiction of Maryland.

    William J. Brennan, Jr.:

    Well then I did not correctly understand you to say —

    Joseph S. Kaufman:

    Well the Chief Justice asked me a hypothetical question which we still take a same position if Virginia had done what Maryland had done.

    William J. Brennan, Jr.:

    That is requiring Maryland citizens to take out these licenses, you would have been happy at that?

    Joseph S. Kaufman:

    No sir that’s not what happened, whether they have repealed the compact, whether they formalized the repeal of the compact sir.

    Now we wish Your Honors also to look at the prayers for relief of the Bill of Complaint, and see if they present, what we consider to be a judiciable case or controversy within this Court.

    Their prime Bill of Complaint, prime prayer for relief in the Bill of Complaint asked that the compact of 1785 between the Commonwealth of Virginia and the State of Maryland be adjudicated and decreed in accordance with those terms forever binding, forever binding.

    Now I have known of no Court, nor I can’t find no authority for any court to forever bind a sovereign state.

    That’s asking for something so far in the future that we don’t know what’ll ever happen in future.

    The Potomac River might dry up in the future, we don’t know that forever binding.

    That’s an abstract question or a speculative question that if I’ve read one.

    Earl Warren:

    I just asked him to note here that your own Act, proving the compact says that it shall be forever faithfully and (Inaudible) observed, now what is the difference between the two?

    Joseph S. Kaufman:

    Well if Your Honor please —

    Earl Warren:

    Forever is forever, no matter what statutes you find —

    Joseph S. Kaufman:

    You’ve got to I think read that in light of its purpose of the conditional purpose of ratification, that it will be executed in good faith and will perpetuate harmony and friendship and good offices.

    Now if it doesn’t meet that condition, of course its — no contract will be kept if the provisions under the contract aren’t kept, even if it says contracts for ten years and there is a breach in the first year, that doesn’t mean that contract will last for that ten years.

    Felix Frankfurter:

    Mr. Kaufman there’s a well known principle accepted by all writers on international law (Inaudible), anyhow as far as I know it’s an unchallenged proposition of international law that a treaty no matter how binding forever carries with it an implicit limitation when circumstances drastically change.

    Joseph S. Kaufman:

    That’s correct sir.

    Felix Frankfurter:

    As between real sovereigns, independent nations, there is no answer to that except the arbitrament of war if one side is stiffly standing out, but the whole point of giving this Court original jurisdiction as between states is to avoid, is to substitute as this Court has said, Justice Holmes said in that Missouri case, to substitute this tribunal for force.

    That’s exactly what this jurisdiction has intended to confer and not allow one of the parties to a contract to decide when it has ceased to be efficacious.

    Joseph S. Kaufman:

    Well if Your Honor please, then there would never be any decision as to when a compact would be breached, other than by coming to —

    Felix Frankfurter:

    By a judicially determination if the other party doesn’t agree and they can’t negotiate, that is correct, and what is so terrible about that? I suppose that’s why this Article III was written as it was?

    Joseph S. Kaufman:

    Article?

    Oh.

    But the point we make here sir is this.

    Who is to make that determination in the first instance?

    Hugo L. Black:

    May I ask you this question?

    Hugo L. Black:

    May I ask you this?

    I understand that you said that you in effect have rescinded the contract by mutual agreement with Virginia.

    They did it first.

    They threw down the (Inaudible) and your legislature has accepted.

    Joseph S. Kaufman:

    We feel that’s correct, yes.

    Hugo L. Black:

    And you say that has to be determined by a court.

    Joseph S. Kaufman:

    That might eventually have to be determined by a court.

    Hugo L. Black:

    You say that it has to be determined by a court in which neither state, if which one state is not a party, the contract made by the state.

    You say that’s it’s been rescinded, the other people say that it is not, and if somebody has to try it, why shouldn’t people be tried to be the two states?

    Joseph S. Kaufman:

    Who does the provisions run in favor of sir?

    It doesn’t run in favor of the state, it runs in favor of the people who fish, the citizens.

    Hugo L. Black:

    Whoever — if the agreement — however if the agreement as you say has been repudiated by the states themselves, as it were under the terms, is under — it’s disputed, somebody has to decide, it should it be decided when both states are not parties, and how can both states be parties when you accept here or in a District Court?

    Joseph S. Kaufman:

    If Your Honor please I say this, that states do not act as individuals, they are not capable of action except through their citizens and except through their legally constituted representatives, and we feel that through the action of the Virginians, both its citizens and as sanctioned by its legislature, they have created chaos on the river.

    They have not kept up the good faith that was required and that is why we have no law on the river now.

    My brother has come in here and asking to put you back and put us back on a status quo, where again there would be no law on the river, where they would be shooting. Now at least we have law on the river and no Virginian has been deprived of one right that he has under the compact.

    Hugo L. Black:

    Well say they’ve breached it, they say you’ve breached it, and you say it ought to be litigated by a Virginia citizen against the State of Maryland.

    Joseph S. Kaufman:

    That is — they are the real parties in interest, yes sir.

    And we say that and our Attorney General —

    Earl Warren:

    If this compact is now at an end and your statute is enforceable, there is no inhibitions in the state at all, they can do anything they want, so far as the citizens of Virginia are concerned.

    Joseph S. Kaufman:

    Well, if Your Honor please, I think the intention of the legislature of Maryland is carried out by the fact that they do want to give Virginians the right to fish and earn a livelihood.

    We’re not trying to deprive Virginias —

    Earl Warren:

    But if there is no compact they can change tomorrow, can they not?

    Joseph S. Kaufman:

    Yes sir they can change tomorrow and if there is a compact they could under Virginia’s own theory, they could change with mutual consent.

    Earl Warren:

    Oh yes, that’s a little different.

    Joseph S. Kaufman:

    What the point make sir is, there is nothing on the river, prior to June 1st there was lawlessness, that was no law on the river.

    Earl Warren:

    Well I don’t find any of that in this record, really I don’t and I don’t see how we can determine this issue on that.

    Joseph S. Kaufman:

    If Your Honor would refer to our answer to the motion for temporary restraining order and affidavits, the affidavits cite that very clearly, it’s in the record of this case.

    I refer you to the affidavits of John (Inaudible)

    Felix Frankfurter:

    That isn’t the legal position you took in answer to this motion for leave to file this bill.

    You said if this Court, you said in effect, the Supreme Court reads the bill and all you have to do is to read the bill and you’ll find that it doesn’t present the cause of action.

    Joseph S. Kaufman:

    That’s correct.

    It’s in the nature of the demur.

    Mr. General Sybert would like to conclude on it.

    Earl Warren:

    Very well.

    Attorney General Sybert.

    C. Ferdinand Sybert:

    With the Court’s permission, I shall like to point out some very pregnant clause in the enacting clause of the 1785 Act of the Maryland legislature and the same wording in the enacting clause of the Virginia legislature and enacting the compact in 1785.

    Earl Warren:

    Where do we find that?

    C. Ferdinand Sybert:

    At page 26 of the Bill of Complaint that is of course the exhibit being the compact of the legislation by Virginia, approving the compact.

    It appears as to Maryland, the Maryland Act on page 26 of the original brief and as to the Virginia act on page 33.

    I think twice Your Honors asked Mr. Kaufman as to the inviolability of the wording in Section 2 of the enacting clause — the act enacting the compact that, and I mean there after every article clause, matter, and thing in the same compact contain shall be obligatory on this state and the citizens thereof and shall be forever faithfully and inviolably observed and kept to this government and all its citizens.

    Now I point to the very next succeeding phrase, “according to the true intent and meaning of such compact.”

    That I think qualifies the perpetual character of the other words that the compact will continue in existence as long it is executed or carried out according to the true intent and meaning of such compact.

    Of course Maryland’s position is that the situation has changed.

    That actually there was a failure of consideration moving to Maryland for this compact four years after the compact was entered into.

    That is the only consideration at all moving to Maryland under this compact was a cessation of tolls imposed by Virginia, duties or tolls imposed by Virginia on Maryland ships coming through the Virginia capes.

    Now I take —

    Earl Warren:

    Years after that, a 100 years after that your state, your state recognized that, didn’t it?

    C. Ferdinand Sybert:

    I was just about to say that maybe Maryland is estopped from raising that point up to recently by a reason of the Black-Jenkins Award, the apparent or the recognition of a compact in the Black-Jenkins Award and by Attorney General Poe, but our position that the failure of the consideration has continued, has continued the consideration moving to Maryland, has actually continued down to this day because of the actions of Virginia, the flagrant breach, the rescission, the breach amounting up to a rescission on the part of Virginia which has been accepted by Maryland and formalized in our 1957 acts.

    Now it is also significant for the Maryland —

    Earl Warren:

    Now before you leave that who has the right to determine whether that has been breached or whether — whether the true intent and meaning of said compact has been kept, who has the right to determine that this, the individual states unilaterally or a court?

    C. Ferdinand Sybert:

    In the first instance of course the — a party to a contract who feels a compact, the contract has been breached has a determination, has the right to determine whether in his opinion the compact or contract has been breached and therefore abrogated.

    Ultimately the arbitrator of that of course (Inaudible) states is this Court.

    Earl Warren:

    Well that’s what you here arguing, isn’t it?

    C. Ferdinand Sybert:

    Yes sir, yes sir but we say that the record itself shows that it’s sufficient in the record that it show that this Court should not entertain this case at this time.

    First of all Virginia, the state has not been, has not been damaged.

    Actually no citizen of Virginia has been damaged.

    We feel that Virginia or more particularly any of its citizens must wait until they have been damaged by any action of Maryland.

    Of course if any cases arises, which Maryland is going to take the position that the contract was actually rescinded by Virginia and we, Maryland, have simply formalized the action recognized it by the passage of our —

    Felix Frankfurter:

    May I ask this Mr. Attorney, also a fact namely that Virginia had some of its patrol boats, I forget in what branch of the Virginia government, they’re serviced out, it doesn’t matter, the state of Virginia has been patrolling in exercise of its governmental function as it conceded it has been doing that.

    Now it did suggest —

    C. Ferdinand Sybert:

    We don’t concede that sir.

    We say they have two boats on a river that’s all we were (Inaudible)

    Felix Frankfurter:

    In fact I am saying that’s what the Attorney General — that’s what the Attorney General of Virginia, that’s what Virginia submits to this Court, I don’t know whether it is so or not, I don’t know whether any of these facts are so without bringing into question the good faith of counsel.

    Now assume that is so, and assume Virginia has said that she does say that she is interfered with, in the exercise of what she conceives to be a governmental function.

    Abstractly stated, abstractly stated if that were true namely that what Maryland is doing in fact makes inroads on the capacity of Virginia to carry out what she conceives to be a governmental function, will that be in interest of the State of Virginia which is fairly sustainable under a compact with Maryland, would that be a justiciable issue in this Court?

    C. Ferdinand Sybert:

    If fairly sustainable, yes sir.

    Felix Frankfurter:

    Now whether its fairly sustainable or not, we can’t tell merely from the abstract meetings, can we?

    C. Ferdinand Sybert:

    Not completely sir.

    I do raise, I raise another point, but before I leave it, I do want to finish with page 26 of the original pleading and refer again to the cause, just before Section 2 begins in the Maryland statute approving the compact and I point out that that clause does not appear in Virginia.

    But certainly the idea behind this clause permeates the whole reason for and a manner in which the compact should have been carried out.

    That is good faith and if executed meaning carried out not merely signed but carried out, executed with good faith will perpetuate harmony, friendship and good offices between two states.

    Now that of course is a whole point of this controversy between Maryland and Virginia.

    The facts are that and I think it can be shown that Virginia has considered this compact at least since the adoption of a federal constitution as a matter of all take by Virginia and all put by Maryland.

    It has not been carried out in good faith by Virginia mounting up over the years to a rescission by Virginia which we have merely formalized.

    Now before my time has expired I’d like to point out a technical reason why this particular suit should not be entertained in this Court at this time and that technical reason is that even if the compact is considered to be subsisting, either state has the right to offer legislation for concurrence by the other state.

    In effect, if under that bill that the compact is still in existence, still subsists, this legislation can only be considered as an offer to Virginia, as an offer to Virginia even considering the compact as an effect, which Maryland denies as an offer or proper to Virginia of repealing legislation and conservation legislation.

    All we know as yet Virginia might agree to it.

    Virginia legislature has not met since the Maryland legislature passed this legislation.

    So technically —

    William J. Brennan, Jr.:

    Whether that legislation have a provision that it shall be effective only upon the concurrence of Virginia?

    C. Ferdinand Sybert:

    Which legislation?

    William J. Brennan, Jr.:

    The Maryland legislation.

    C. Ferdinand Sybert:

    Oh no, no this does not, but that is not a condition precedent for enactment of law or —

    William J. Brennan, Jr.:

    And that’s the say I gather that Maryland not only considers it effective but in fact its proceeding under it.

    C. Ferdinand Sybert:

    Oh yes Maryland does sir, that’s Maryland’s position.

    But conceivably —

    William J. Brennan, Jr.:

    How is it then merely a proper, I don’t quite understand?

    C. Ferdinand Sybert:

    Well I say if the compact were considered still demand existence it could, this legislation could be considered as a proper to Virginia.

    William J. Brennan, Jr.:

    Well if it’s really a proper until its acceptance, it would not be effective?

    C. Ferdinand Sybert:

    Well my point is that the Maryland — the Virginia legislature has not met since its legislation was passed by Virginia, the Maryland, the Virginia legislature is the only body in Virginia which can declare the public policy of that state and that only agency has not had a chance to make a stand on this legislation of Maryland.

    Earl Warren:

    But you didn’t wait for them to take a stand, you’ve go ahead and you’ve licensed them and you’ll arrest them if they, if they fish without it.

    C. Ferdinand Sybert:

    That is true sir.

    Earl Warren:

    Then how can you say, how can you say you are waiting for them?

    C. Ferdinand Sybert:

    Well I don’t say we are waiting, we are not waiting, but I say that we don’t know yet whether Virginia — the only body in Virginia, agency in Virginia which can enunciate public policy, it may conceivably I doubt it, it may except it.

    But I say right now this case is pretty mature.

    Likewise the Attorney General of Virginia does not make any showing in his brief or here that he has been authorized by the legislature to file suit on behalf of Virginia, file this suit and certainly the Virginia legislature is the only body which can, we think, authorize such action.

    It is the only agency which can enunciate Virginia’s policy.

    Felix Frankfurter:

    We make that presumption as to your rightfulness and being the other state that (Inaudible)

    C. Ferdinand Sybert:

    Well that — That Maryland’s constitution has held us to depend the state whenever it is sued, [Attempt to Laughter], thank you sir.