Judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[141] The meaning attached to the terms "cases" and "controversies" determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. As Chief Justice Marshall declared in Osborn v. Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case, and a case arises only when a party asserts his rights "in a form prescribed by law."[142] Many years later Justice Field, relying upon Chisholm v. Georgia,[143] and Tucker's edition of Blackstone, amended this definition by holding that "controversies," to the extent that they differ from "cases," include only suits of a civil nature. He continued: "By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication."[144] The definitions propounded by Chief Justice Marshall and Justice Field were quoted with approval in Muskrat v. United States,[145] where the Court held that the exercise of judicial power is limited to cases and controversies and emphasized "adverse litigants," "adverse interests," an "actual controversy," and conclusiveness or finality of judgment as essential elements of a case.[146]
ADVERSE LITIGANTS
The necessity of adverse litigants with real interests has been stressed in numerous cases,[147] and has been particularly emphasized in suits to contest the validity of a federal or State statute. A few illustrations will suffice to describe the practical operation of these limitations. In Chicago and Grand Trunk Railroad Co. v. Wellman,[148] which originated in the courts of Michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the Supreme Court ruled there was no case or controversy. In the course of its opinion, which held that the courts have no "immediate and general supervision" of the constitutionality of legislative enactments, the Court said: "Whenever, 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, in the exercise of its solemn duties, 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."[149]
In applying the rule requiring adverse litigants to present an honest and actual antagonistic assertion of rights, the Court invalidated an act of Congress which authorized certain Indians to bring suits against the United States to test the constitutionality of the Indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the United States had no interest adverse to the claimants.[150] The Court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[151] and that the interest must be of a personal as contrasted with an official interest.[152] Hence a county court cannot contest the validity of a statute in the interest of third parties,[153] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[154] nor can directors of an irrigation district occupy a position antagonistic to it.[155] It is a well settled rule that: "The Court will not pass upon the constitutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *"[156] It is equally well established as a corollary that, "litigants may challenge the constitutionality of a statute only insofar as it affects them."[157]
It must be noted, however, that adversity is a relative element which the courts may or may not discover. Thus in Pollock v. Farmers' Loan and Trust Co.,[158] the Supreme 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 section 3224 of the Revised Statutes, which forbids the maintenance in any court of a suit "for the purpose of restraining the collection of any tax."[159] Subsequently the Court has found adversity of parties in a suit brought by a stockholder to restrain a title company from investing its funds in farm loan bonds issued by the federal land banks,[160] and in a suit brought by certain preferred stockholders against the Alabama Power Company and the TVA to enjoin the performance of contracts between the company and the authority and a subsidiary, the Electric Home and Farm Authority, on the ground that the act creating these agencies was unconstitutional.[161] The ability to find adversity in narrow crevices of casual disagreement is well illustrated by Carter v. Carter Coal Co.,[162] where the President of the company brought suit against the company and its officials, among whom was Carter's father who was Vice President of the Company.[163] The Court entertained the suit and decided the case on its merits.
Equally important as an essential element of a case is the concept of real or substantial interests. As a general rule the interest of taxpayers in the general funds of the federal Treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest "is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."[164] Likewise, the Court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[165] Nor can a member of the bar of the Supreme Court challenge the validity of an appointment to the Court since his "is merely a general interest common to all members of the public."[166] Similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to municipalities for the construction or purchase of electric power distribution plants on the ground that the "lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose."[167] Recent cases, involving the issue of religion in the schools, reach somewhat divergent results. In Illinois ex rel. McCollum v. Board of Education,[168] the Court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the State's educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. But in Doremus v. Board of Education,[169] decided early in 1952, the Court declined jurisdiction in a case challenging the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament. Appellants' interest as taxpayers was found to be insufficient to sustain the proceeding.
Substantial Interest in Suits by States
These principles have been applied in a number of cases to which a State was one of the parties and in suits between States. One of the most important of these is State of Georgia v. Stanton,[170] which was an original suit in equity brought by the State of Georgia against the Secretary of War and others to enjoin the enforcement of the Reconstruction Acts. The State's counsel contended that enforcement of the acts brought about "an immediate paralysis of all the authority and power of the State government by military force; * * * [which was divesting the State] of her legally and constitutionally established and guaranteed existence as a body politic and a member of the Union." The Supreme Court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened "must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."[171] The rule of the Stanton case was applied and elaborated in Massachusetts v. Mellon,[172] where the State in its own behalf and as parens patriae sought to enjoin the administration of the Maternity Act[173] which, it was alleged, was an unconstitutional invasion of the reserved rights of the State and an impairment of its sovereignty. The suit was held not justiciable on the ground that a State cannot maintain a suit either to protect its political rights or as parens patriae to protect citizens of the United States against the operation of a federal law. Concerning the right of a State to sue in its own behalf to protect its political rights, the Court said: "In that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government."[174] However, these holdings do not affect the right of a State as parens patriae to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[175] or the right of a State to assert its quasi sovereign rights over wild life within its domain,[176] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent State.[177]