STEWART, J., concurring

437 U.S.

estate entirely before it is able to satisfy its own tax judgment. Thus to the extent that the concern of this action is to prevent the possibility that the estate will be subjected to double taxation, it does not present a dispute between two States within the original and exclusive jurisdiction of this Court. For a State may seek the aid of this Court only to protect its own interests, not the interests of others. See Massachusetts v. Missouri, supra, at 15.

B

The dispute between California and Texas, therefore, is not really over which of them has the right to impose a domiciliary tax upon the Hughes estate. Indeed the dilemma of multiple taxation arises only because the Constitution permits both States to impose the tax. Worcester County Trust Co. v. Riley, 302 U. S. 292.13 The real dispute arises solely from the risk that one of the States will be left with an entirely valid but uncollectible tax judgment. Massachusetts v. Missouri, supra, at 15. The conflict would be equally real if the two States were staking their tax claims to the finite assets of the estate on entirely different grounds, or if both States claimed as judgment creditors on the basis of completely different debts incurred while Hughes was still alive.

13 In Western Union Telegraph Co. v. Pennsylvania, 368 U. S. 71, the Court held, by contrast, that a holder of tangible property is denied due process by a state-court judgment of escheat that does not and cannot protect the holder from the escheat claim of another State, and that the proper procedure was for the competing States to invoke the original jurisdiction of this Court. Because the Court held that the States could not constitutionally enforce their escheat laws in their own courts, this Court was the only remaining forum in which a State could escheat property that other States claimed. The situation in which the present case arises is quite different, since there is no constitutional impediment to both California and Texas imposing death taxes upon the Hughes estate by proceedings in their own courts.

601

STEWART, J., concurring

In the latter situation the question of domicile would be irrelevant, and there is no compelling reason why it should have been the dispositive question in Texas v. Florida. For when this Court exercises its original jurisdiction to settle a dispute between two States it does not look to the law of each State, but rather creates its own rules of decision. "The determination of the relative rights of contending States in respect of the use of streams flowing through them does not depend upon the same considerations and is not governed by the same rules of law that are applied in such States for the solution of similar questions of private right." Connecticut v. Massachusetts, 282 U. S. 660, 670. The determination of the relative rights of two States that both claim the power to tax a decedent's estate similarly should not necessarily depend on the same considerations that would govern the question under state law.

In deciding the controversy between Texas and California the Court could, of course, determine, according to its own rules of decision where Hughes was domiciled when he died, and permit only the State of domicile to tax the estate. Cf. Texas v. New Jersey, 379 U. S. 674. But assuming there are sufficient contacts with each State to support a finding of domicile under each State's law-a premise of jurisdiction in Texas v. Florida-the Court could with equal validity decide that the proper disposition was a division of the assets of the estate based on a judgment as to the relative strength of the domicile claims, or on almost any other basis that seemed just. Indeed, for purposes of this Court's resolution of a dispute between two sovereign States, each of which has an equally valid claim under its own law, it would seem more appropriate to decide the case on some neutral principle rather than attempt to determine a single "correct" answer under state common law.

In any event the question for decision would be one to be resolved under federal law, not under the state law of domicile.

STEWART, J., concurring

437 U.S. A prior adjudication of domicile in the courts of either of the claiming States would not bind this Court in any respect, or prevent it from affording whatever relief it deemed appropriate. Thus California, unlike the ordinary claimant in an interpleader action, will not be met with the bar of res judicata if its potential conflict with Texas is not pre-empted at this incipient stage. Cf. Treinies v. Sunshine Mining Co., 308 U. S. 66, 74-78.

The original jurisdiction of this Court exists to remedy real and substantial injuries inflicted by sovereign States upon their sister States. New York v. New Jersey, 256 U. S. 296, 309; Massachusetts v. Missouri, 308 U. S. 1. As yet, California has suffered no injury at the hand of Texas, and there is indeed a "fair probability" that the injury will never come to pass. California has not obtained a judgment in its own courts that Hughes died domiciled there, but merely a conditional agreement from the estate's representative not to contest California's assertion of domicile in this Court if the present complaint is accepted for filing. Moreover, whether or not the estate will in fact be insufficient to meet the various tax claims may depend on how the assets are finally evaluated and what deductions the various taxing authorities allow. While the risk of conflict poses a sufficiently real threat to the estate to present a ripe controversy if an interpleader suit were filed by the appropriate parties in a federal district court," that risk certainly does not amount to "clear and convincing evidence" of an actual injury of "serious magnitude" inflicted by one State upon another. New York v. New Jersey, supra, at 309; Missouri v. Illinois, 200 U. S. 496, 521.

14

Indeed it is not at all clear to me that the injury threatened here essentially that one State will be left with an uncollectible judgment because another State has exhausted a debtor's funds would be sufficient to justify the exercise of this Court's original jurisdiction even if the injury actually 14 See nn. 9 and 10, supra.

601

POWELL, J., concurring

occurred.15 But even assuming that it would be, such jurisdiction surely does not exist until each State has finally established an enforceable claim under state law, and it is clear that the estate's assets are insufficient to meet both claims.

It is for these reasons that I join in the order of the Court denying California's motion for leave to file its complaint.

MR. JUSTICE POWELL, concurring.

I join the excellent opinion of MR. JUSTICE STEWART and write simply to emphasize his conclusion that, in light of Edelman v. Jordan, 415 U. S. 651 (1974), this Court's decision in Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), no longer can be regarded as a bar against the use of federal interpleader by estates threatened with double death taxation because of possible inconsistent adjudications of domicile.

As Professor Zechariah Chafee, the father of federal statu

15 The injury would be the same whatever the source of each State's claim upon the debtor. The closest analogue of the State's complaint would seem to be the petition for a declaration of involuntary bankruptcy-a remedy created entirely by statute, not by "accepted doctrines of the common law or equity systems of jurisprudence, which are guides to decision of cases within the original jurisdiction of this Court." Texas v. Florida, 306 U. S., at 405. See generally 1 W. Collier on Bankruptcy, 11 0.01-0.03 (1974). I am not certain that our duty to "exercise [the] jurisdiction which is given," Cohens v. Virginia, 6 Wheat. 264, 404, compels or even empowers us to create such a remedy for the sovereign States. The status of unsatisfied creditor does not necessarily create the kind of controversy between States that can or should be resolved by means of adjudication under this Court's original jurisdiction. This may, rather, be the kind of dispute that is best resolved by the contending States through negotiation or arbitration. See New York v. New Jersey, 256 U. S. 296, 313; Texas v. Florida, supra, at 428 (Frankfurter, J., dissenting). Tweed & Sargent, supra n. 12, at 77. Indeed many States have adopted procedures for arbitration or compromise of precisely the kind of dispute presented here. See Uniform Interstate Arbitration of Death Taxes Act, 8 U. L. A. 255 (1972); 4 CCH Inh. Est. & Gift Tax Rep. ¶ 12,035 (1975).

tory interpleader, pointed out: "It is our federal system which creates the possibility of double taxation. Somewhere within that federal system we should be able to find remedies for the frictions which that system creates." Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 388 (1940). The Worcester County Court, much to Professor Chafee's regret, 49 Yale L. J., at 388, held that the Eleventh Amendment precluded resort to federal interpleader as a remedy for the particularly unfair "friction" that can result from conflicting adjudications of domicile in death taxation cases.

But as noted by MR. JUSTICE STEWART, ante, at 608-609, n. 10, Worcester County has been effectively undercut by subsequent developments. Edelman made it clear that the Eleventh Amendment bars only suits "by private parties seeking to impose a liability which must be paid from public funds in the state treasury," 415 U. S., at 663, and not actions which may have "fiscal consequences to state treasuries. . . [that are] the necessary result of compliance with decrees which by their terms [are] prospective in nature," id., at 667-668, at least in a case such as this, where the very controversy is a result of our federal system. An interpleader action to prevent competing States' taxing officials from levying death taxes on the basis of possible inconsistent adjudications of domicile unquestionably would fall into the latter category. Accordingly, it would appear that resort to federal interpleader no longer is proscribed by the Eleventh Amendment in this situation.