The presence of adverse litigants with real interests to contend for is a standard which has been stressed in numerous cases,324 and the requirement implicates a number of complementary factors making up a justiciable suit. The requirement was a decisive factor, if not the decisive one, in Muskrat v. United States,325 in which the Court struck down a statute authorizing certain named Indians to bring a test suit against the United States to determine the validity of a law affecting the allocation of Indian lands. Attorney’s fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. “The judicial power,” said the Court, “. . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.... It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question.”326
Collusive and Feigned Suits.—Adverse litigants are lacking in those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie,327 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person, and suit was instituted to decide the “dispute.” Declaring that “the whole proceeding was in contempt of the court, and highly reprehensible,” the Court observed: “The contract set out in the pleadings was made for the purpose of instituting this suit.... The plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to the suit.... And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision....”328 “Whenever,” said the Court in another case, “in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”329 Yet several widely known constitutional decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were supervised and financed by one side.330 And there are instances in which there may not be in fact an adverse party at certain stages, that is, some instances when the parties do not actually disagree, but in which the Court and the lower courts are empowered to adjudicate.331
324 Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & G.T. Ry. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971).
325 219 U.S. 346 (1911).
326 219 U.S. at 361-62. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar problems, but they resulted in decisions on the merits. E.g., Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 455-463 (1899); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); but see id. at 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law.
327 49 U.S. (8 How.) 251 (1850).
328 49 U.S. at 254-55.
329 Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892).
330 E.g., Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796); Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810); Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Cf. 1 C. Warren, supra at 147, 392-95; 2 id. at 279-82. In Powell v. Texas, 392 U.S. 514 (1968), the Court adjudicated on the merits a challenge to the constitutionality of criminal treatment of chronic alcoholics although the findings of the trial court, agreed to by the parties, appeared rather to be “the premises of a syllogism transparently designed to bring this case” within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed.
331 Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926), entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258-259 (1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S. 40, 58-59 (1968).
Stockholder Suits.—Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pol-lock v. Farmers’ Loan and Trust Co.,332 the Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the collection of any tax.333 Subsequently, the Court sustained jurisdiction in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks334 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional.335 Perhaps most notorious was Carter v. Carter Coal Co.,336 in which the president of the company brought suit against the company and its officials, among whom was Carter’s father, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits.337
332 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856). See also Brushaber v. Union Pacific Ry. Co., 240 U.S. 1 (1916).
333 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S. 189 (1883).
334 Smith v. Kansas City Title Co., 255 U.S. 180 (1921).
335 Ashwander v. TVA, 297 U.S. 288 (1936). See id. at 341 (Justice Brandeis dissenting in part).
336 298 U.S. 238 (1936).
337 Stern, The Commerce Clause and the National Economy, 59 HARV. L. REV. 645, 667-668 (1948) (detailing the framing of the suit).
Last modified: June 9, 2014