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[Vol. 12: 1287 cognizance of such conflicts in terms of case or controversy has received little analysis. One hundred years ago when the Treasury Department appeared in opposition to the Attorney General, the Court shortly stated that "where the United States is a party, and is represented by the Attorney-General. . . no counsel can be heard in opposition on behalf of any other of the departments of the government. "637 In 1921, the Second Circuit, proceeding from the premise that "the same person cannot be both plaintiff and defendant in the same action" denied recovery to an insurer who had paid for an injury by a Central Railroad float to a New York Central Railroad tug because both roads had been taken over by the United States Railroad Administration, which had organized the roads "into a unified national system of transportation under a single head."638

In private litigation, it has been said, the same party cannot be both plaintiff and defendant, for "in that event, there is no real case or controversy"; 639 and the Supreme Court has stated that where one person owns the stock of two opposing corporations there is no controversy because he is "the dominus litis on both sides." Such cases, it has been suggested, are distinguishable because they involve collusive suits prejudicial to a third person; 41 and it has been argued that the rule has not been inflexibly applied.642 Whatever may be the force of such arguments, when an agency that enjoys "complete autonomy" stubbornly opposes the view of a

its order to print books); Morss v. Forbes, 24 N.J. 341, 132 A.2d 1 (1957) (suit by county prosecutor to enjoin Legislative Committee from demanding confidential information).

030 Judicial analysis has lagged behind two very good student notes. See 62 HARV. L. REV. 1050 (1949); Note, Res Judicata and Intra-Governmental Inconsistencies, 49 COLUM. L. REV. 640 (1949).

037 The Gray Jacket, 5 Wall. (72 U.S.) 370, 371 (1866).

638 Globe & Rutgers Fire Ins. Co. v. Hines, 273 Fed. 774, 780 (2d Cir. 1921). This case represents an extreme application of the doctrine because the insurers of the railroad were the real party in interest.

639 Defense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13 (2d Cir. 1945). This was a "dispute about the proper allocation of government funds between different parts of the government," i.e., between a government corporation and the United States. Id. at 313 n.5. The statute had directed that suits shall proceed under principles "obtaining in like cases between private parties" and the court reserved the "question whether such an action, even if authorized by statute, would be justiciable. . . ." Id. at 312, 313 n.5. The Defense Supplies rule was applied in United States v. Easement & Right of Way, 204 F. Supp. 837, 839-40 (E.D. Tenn. 1962).

G10 South Spring Gold Mining Co. v. Amador Medean Gold Mining Co. 145 U.S. 300, 301 (1892).

641 62 HARV. L. Rev. 1050, 1055 (1949); Cf. 49 COLUM. L. Rev. 640, 644 (1949). 642 62 HARV. L. REV. 1050, 1055 (1949).

643 Stern 760. See note 651 infra. A number of other independent agencies enjoy the "same autonomy." Stern 763.

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department and is outside the compulsion of the executive power, the facts are at war with a technical assumption that the two agencies are the "same person" or that there is a "dominus litis" who controls the litigation.

The absence of a "case or controversy" in this context was first raised before the Supreme Court in United States v. ICC.45 The United States had filed a complaint on behalf of the Army before the ICC for reparations from certain railroads. The ICC found the rates reasonable and dismissed, whereupon the United States brought suit in a three-judge district court to set aside the order. Faced with a statute which made the suit one "against the United States," with a suit naming the United States both as petitioner and defendant, with the Attorney General representing both-indeed, with the identical Assistant Attorney General signing both petition and answer the district court not surprisingly concluded that "the Government may not sue itself. . . . Naturally there cannot be a controversy if the same party is both plaintiff and defendant." The Supreme Court recognized the general principle that "no person may sue himself," but it looked behind the names of the parties and found that the controversy was actually between the United States and the railroads about alleged overcharges in the past. Apparently aware, however, that this explanation would not explain cognizance of the recurring conflicts between two or more agencies, the court went on to say that the Attorney General's charge that the ICC order was "issued arbitrarily and without substantial evidence ... alone would be enough to present a justiciable controversy.... This statement may seem puzzling, because ordinarily an appeal from a judicial tribunal is not enough to give rise to a "controversy" with the tribunal, be its decision ever so arbitrary. In denying a claim to reparations, the ICC acted in a quasi-judicial capacity,

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644 Congress, said Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935), could empower agencies such as the FTC to act "independently of executive control." Cf. Wiener v. United States, 357 U.S. 349 (1958).

645 337 U.S. 426 (1949).

646 United States v. ICC, 78 F. Supp. 580, 583 (DD.C. 1948). Globe & Rutgers Fire Ins. Co. v. Hines, 273 Fed. 774, 778 (2d Cir. 1921), had held that jurisdiction in such cases "depends upon the character of the party to the record, and the court does not inquire as to who may have an equitable interest in the suit."

647 337 U.S. at 430-31. In United States v. Easement & Right of Way, 204 F. Supp. 837, 840 (E.D. Tenn. 1962), wherein the TVA sought in a condemnation suit to join the Farmers' Home Administration as holder of a mortgage on the land, the court expressed disbelief that United States v. ICC "overruled the elementary principle that a party may not suc himself," saying that there "the United States upon the one side and the railroads upon the other were the real parties in interest. . . . The case is . . . authority only for the proposition that adversary parties must in fact exist in order for a justiciable issue to exist. . . .”

648 337 U.S. at 431.

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and the injunction filed by the United States on behalf of the Army to set aside the ICC order was a form of appeal for purposes of review. But the quasi-judicial role of the ICC may be distinguished in this respect from that of a trial court, because it is part of a complex of functions, legislative, administrative and judicial, all of which are employed to effectuate a statutory policy; and the agency is no less entitled to protection for its judicial than it would ordinarily receive for its administrative functions."50 This would seem to flow from the congressional authorization to the ICC to maintain its position even though the Attorney General took a contrary view, without regard to whether the function was legislative, administrative or judicial.01

652

And it receives some confirmation from ICC v. Jersey City, wherein a railroad sought a rate increase which the ICC authorized over the protest of Jersey City and the federal Price Administrator. Jersey City then brought suit to set the order aside; the Price Administrator intervened, alleging that the increase was "in violation of the Stabilization Act." It is possible to view this as a controversy between the railroad and Jersey City to which the dispute between the ICC (in its rate-making capacity) and the Price Administrator was ancillary. But the Court made no mention of the fortuitous. fact that the controversy arose out of a "privately" initiated suit and emphasized rather that the controversy was "between two governmental agencies as to whether the powers of the one or the other are preponderant in the circumstances.' " The resolution of such intergovernmental disputes, which involve the fortunes of major statutory schemes having great national importance, should not

619 That the injunctive procedure under the Urgent Deficiencies Act was merely a review procedure was confirmed by the Review Act of 1950, § 1, 64 Stat. 1129 (1950), 5 U.S.C. §§ 1031-42 (1953), which provided that the carlier act should "no longer govern review of orders of the Federal Maritime Communications Commission, the Secretary of Agriculture, and the Maritime Commission." GELLHORN & BYSE 223. See also 3 DAVIS § 23.04.

650 Cf. text accompanying notes 701, 702 infra.

051 From the outset, the ICC was authorized to appear "as of right," to "be represented by their own counsel," and the Attorney General was ordered not to "dispose of or discontinue" an ICC suit "over the objection" of the ICC. 28 U.S.C. § 2323 (1949). See ICC v. Oregon-Washington R.R., 288 U.S. 14, 23-24 (1933). 652 322 U.S. 503 (1944).

653 Id. at 523-24. Cf. id. at 519. In ICC v. Inland Waterways Corp., 319 U.S. 671, 683 (1943), the Attorney General did not participate because "of a conflict in litigation between coordinate agencies. . . the Agricultural Adjustment Administration and the ICC." Compare the attack by the Price Administration on the ICC in Alabama v. United States, 56 F. Supp. 478, 483 (W.D. Ky. 1944), because of "failure properly to interpret and apply its constitutional and statutory authority to protect interstate commerce from undue and unreasonable burdens from intrastate commerce and also by its failure to accommodate the exercise of its powers to the congressional policies embodied in the Emergency Price Control Act. . .

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hinge on the accident that the suit is initiated by a private party rather than by an agency that claims its functions are being impaired by another agency.

The Supreme Court took in stride a suit initiated by a department wherein it complained of just such impairment. In United States cx rel. Chapman v. FPC, the Secretary of the Interior petitioned to set aside a license issued by the FPC to a private power company on the ground that his "duties relating to the conservation and utilization of the Nation's water resources" were "adversely affected by the Commission's order." Without mention of "case or controversy," the Court held that the Secretary had standing to sue. Presumably implicit in the holding is the assumption that there was a "controversy," for without it there could be no jurisdiction.666

That assumption fits handily into orthodox notions of "case or controversy." A "controversy" is presented, in the words of Chief Justice Taney, when there is a "real dispute between the plaintiff and defendant," the antithesis of an "interest in the question" which is "one and the same."G7 When one branch of the government maintains that another is unlawfully depriving it of rights conferred upon it either by Constitution or statute, and that charge is controverted, there is such a "real dispute," and there is no "common interest"

654 345 U.S. 153 (1953).

655 Id. at 156. Mr. Justice Frankfurter stated that the cases involved "a conflict of view between two agencies of the Government having duties in relation to the development of national water resources." Id. at 155. Cf. United States v. FPC, 191 F.2d 796, 800 (4th Cir. 1951).

656 The presence of "parties having adverse legal interests" continues to be the criterion of "case or controversy." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). Cf. Public Util. Comm'n v. United States, 355 U.S. 534, 536 (1958); Stephenson v. Stephenson, 249 F.2d 203, 208 (7th Cir. 1957).

657 Lord v. Veazic, 49 U.S. (8 How.) 250, 254 (1850). More recently the Supreme Court said that there is a "controversy" where there is "a dispute between partics who face each other in an adversary proceeding... [who] had taken adverse positions with respect to their existing obligations." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242 (1937). There "is an actual controversy . . . where one side makes a claim of a present, specific right and the other side makes an equally definite claim to the contrary. . . ." Stephenson v. Stephenson, 249 F.2d 203, 208 (7th Cir. 1957). In a concurring opinion in State v. Cunningham, 81 Wis. 440, 486, 51 N.W. 724, 730 (1892) (in which the rest of the court apparently concurred), Judge Pinney said of a suit by the state on the relation of the Attorney General against the Secretary of State, invoking the original jurisdiction of the Supreme Court: "We have, then, all the essential elements of a judicial controversy proper for the determination of a court of justice. There is a controversy between the state, as a political organization suing by its attorney general, and the respondent, in relation to the discharge of a purely ministerial duty, concerning matters respecting the sovereignty... of the state. . . which is matter cognizable in this court. . . ." Id. at 507, 51 N.W. at 737.

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in obtaining the same decision. And when the disputants are Congress and the executive it would be sheer conceptualism to regard the United States as the "dominum litis," for aside from the "people" to whom an appeal on this issue is unfeasible and remote, there exists no organ or body but the courts which can compel them to reconcile their differences. Such conceptualism is the less inviting when it collides with the deep-rooted interest in insuring that officials remain within bounds, a consideration that steadily grows in importance as more and more delegation is the order of the day.

069

There is no historical compulsion to read the case or controversy phrase restrictively. A "case" was defined by Chief Justice Marshall as a "suit instituted according to the regular course of judicial procedure." In "regular course" the English courts entertained suits by the Attorney General against public officials; 081 and suits by an Attorney General to keep an official within bounds have long been accepted as a staple of judicial business.002 As Judge

658 Compare 3 DAVIS 292: "Whenever a private party who is in fact adversely affected asserts that administrative action is illegal, and whenever the defendant in the proceeding asserts that the action is legal, the technical requirement of 'controversy' is met."

650 See Jaffe 1274, 1276, 1280, 1296; 3 DAVIS 248. Commenting on Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), Professor Davis suggests that "the companies which are adversely affected by the asserted misinterpretation of the statute" might well be "enlisted as natural law enforcers, whether or not the legal right of the companies is violated." Id. at 220.

660 So states Muskrat v. United States, 219 U.S. 346, 356 (1911).

661 "[O]ne touchstone of justiciability to which this Court has frequently had reference is whether the action sought to be maintained is of a sort 'recognized at the time of the Constitution to be traditionally within the power of the courts in the English and American judicial systems.'" Glidden Co. v. Zdanok, 370 U.S. 530, 563 (1962).

Although the Attorney General in England could bring suits to "restrain breaches of statutory duty and excess of powers conferred by statute," such suits were generally confined to local authorities; he could not obtain an injunction "against the Crown or a Crown servant acting in that behalf." DE SMITH, JUDICIAL REVIEW OF OFFICIAL ACTION 344 (1959). The latter bar flowed from sovereign immunity, cf. WADE 14, rather than absence of a "controversy." A "local authority" in the English unitary, as opposed to our dual federal-state, system is a part of the one government, cf. id. at 22; and thus English law early provided for adjudicating disputes between one part of the government and another. The place of an injunction against the Crown and its servants is taken by a "declaration," i.e., declaratory judgment, and a litigant can "be sure that it will be respected by the government." Id. at 226. See id. 87, 92-93. Crown immunity, as we have noted, has little relevance in this respect to the development of our institutions; Marshall maintained from the outset that "heads of departments" were "amenable to the laws." Marbury v. Madison, 1 Cranch (5 U.S.) 137, 164 (1803).

602 Goddard v. Smithett, 69 Mass. (3 Gray) 116, 125 (1854); Attorney General v. Trustees of Boston Elevated Ry., 319 Mass. 642, 652, 67 N.E.2d 676, 685 (1946): "The Attorney General represents the public interest, and as an incident to his office he has the power to procced against public officers to require them to perform the duties that they owe to the public in general, and to have set aside such action as shall be determined to be in excess of their authority, and to have them com