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    COM. OF VIRGINIA v. STATE OF WEST VIRGINIA, 206 U.S. 290 (1907)

    U.S. Supreme Court

    COM. OF VIRGINIA v. STATE OF WEST VIRGINIA, 206 U.S. 290 (1907)

    206 U.S. 290

    COMMONWEALTH OF VIRGINIA
    v.
    STATE OF WEST VIRGINIA.

    No. 7, Original.
    Argued March 11, 12, 1907.
    Decided May 27, 1907.

    [206 U.S. 290, 291]   This is a bll filed, on leave, February 26, 1906, by the commonwealth of Virginia against the state of West Virginia.

    The bill averred that--

    On the 1st day of January, 1861, complainant was indebted in about the sum of $33,000,000 upon obligations and contracts made in connection with the construction of works of internal improvement throughout her then territory. By far the greater part of this indebtedness was shown by her bonds and other evidences of debt, given for the large sums of money which she from time to time had borrowed and used for the above purpose; but a portion of her liabilities, though arising under contracts made before that date, had not then been covered by bonds issued for their payment.

    Complainant charged 'that the property which was, by the operation of this act, appropriated and transferred from the state of Virginia to the state of West Virginia, and which was subsequently received and enjoyed by the state of West Virginia, consisted of a number of items, and the vlu e of it amounted, in the aggregate, to several millions of dollars, the exact amount your oratrix is unable at this time more definitely to ascertain and state. That of the bank stocks alone which were transferred under the operation of this act, the state of West Virginia realized and received into her treasury from the sale thereof about $600,000; and that no part of the property so received by West Virginia had been obtained by Virginia since April, 1861. [206 U.S. 290, 297]  

    15. All of the bonds and obligations and other evidences of the indebtedness of the original state of Virginia outstanding and contracted on January 1, 1861, as stated in paragraph 1, of this bill, except a comparatively insignificant sum, not amounting to 1 per cent of the aggregate of those liabilities, have been taken up and are now actually held by your oratrix, and she has the right to call upon West Virginia for a settlement with respect thereto. They are too unmerous and involve too great a number of transactions running through many years, for it to be practicable to exhibit them here in detail, but the original bonds and other evidences of indebtedness so paid off or retired and now held by your oratrix will, when it shall be proper to do so, be exhibited to the master, who shal t ake the accounts hereinafter prayed for.

    21. Enumerates exhibits attached to the bill and prayed to be regarded as part thereof.

    22. The bill prayed; 'Forasmuch, therefore, as your oratrix is remediless save in this form and forum, and to the end that the state of West Virginia may be duly served, through her governor and attorney general, with a copy of this bill, your oratrix prays that the said state of West Virginia may be made a party defendant to this bill, and required to answer the same, that all proper accounts may be taken to determine and ascertain the balance due from the state of West Virginia to your oratrix, in her own right and as trustee as aforesaid; that the principles upon which such accounting shall be had may be ascertained and declared, and a true and proper settlement made of the matters and things above recited and set forth; that such accounting be had an ettlement made, under the supervision and direction of this court by such auditor or master as may by the court be selected and empowered to that end, and that proper and full reports of such accounting and settlement may be made to this court; that the state of West Virginia may be required to produce before such auditor or master, so to be appointed, all such official entries, documents, reports, and proceedings as may be among her public records or official files and may tend to show the facts and the true and actual state of accounts growing out of the matters and things above recited and set forth, in order to a full and correct settlement and adjustment of the accounts between the two states; that this court will adjudicate and determine the amount due to your oratrix by the state of West Virginia in the premises; and that all such other and further and general relief be granted unto your oratrix in the premises as the nature of her case may require or to equity may seem meet.' [206 U.S. 290, 307]   Attached to the bill were the numerous exhibits referred to.

    The state of West Virginia demurred and assigned special causes as follows:

    Sixth. That the said bill does not sufficiently and definitely set forth the claims and demands relied upon, but the allegations thereof are so indefinite and uncertain that no proper answer can be made thereto.

    Hearing on the demurrer was had March 11, 12, 1907.

    Messrs. William A. Anderson and Holmes Conrad for complainant.

    [206 U.S. 290, 310]   Messrs. John G. Carlisle, Charles E. Hogg, C. W. May, and Mollohan, McClintic, & Mathews for defendant.

    [206 U.S. 290, 315]  

    Mr. Chief Justice Fuller delivered the opinion of the court:

    The state of West Virginia was admitted into the Union June 20, 1863, under the proclamation of the President of the United States of April 20, 1863 [13 Stat. at L. 731], i p ursuance of the act of Congress approved December 31, 1862 [12 Stat. at L. 633, chap. 6], upon the terms and conditions prescribed by the commonwealth of Virginia in ordinances adopted in convention and in acts passed by the general assembly of the restored government of the commonwealth, giving her consent to the formation of a new state out of her territory, with a constitution adopted for the new state by the people thereof. The 9th section of the ordinance adopted by the people of the restored state of Virginia in convention assembled in the city of Wheeling, Virginia, on August 20, 1861, entitled, 'An ordinance to Provide for the Formation of a New State out of a Portion of the Territory of This State,' provided as follows:

    The consent of the commonwealth of Virginia was given to the formation of a new state on this condition. February 3 and 4, 1863, the general assembly of the restored state of Virginia enacted two statutes in pursuance of the provisions of which money and property amounting to and of the value of several millions of dollars were, after the admission of the new state, paid over and transferred to West Virginia. The Constitution of the state of West Virginia when admitted contained these provisions, being 5, 7, and 8 of article 8 thereof, as follows:

    The 'public debt' and the 'previous liability' manifestly referred to a portion of the public debt of the original state of Virginia and liability for the money and property of the original state, which had been received by West Virginia under the acts of the general assembly, above cited, enacted while the territory and people afterwards forming the state of West Virginia constituted a part of the commonwealth of Virginia, though one may be involved in the other; while the provisions of 7 and 8 were obviously framed in compliance with the conditions on which the consent of Virginia was given to the creation of the state of West Virginia, and the money and property were transferred. From 1865 to 1905 various efforts were made by Virginia, through its constituted authorities, to effect an adjustment and settlement with West Virginia for an equitable proportion of the public debt of the undivided state, proper to be borne and paid by West Virginia, but all these efforts proved unavailing, and t is charged that West Virginia refused or failed to take any action or to do anything for the purpose of bringing about a settlement or adjustment with Virginia.

    The original jurisdiction of this court was, therefore, invoked by Virginia to procure a decree for an accounting as between the two states, and, in order to a full and correct adjustment of the accounts, the adjudication and determination of the amount due Virginia by West Virginia in the premises.

    But is is objected that this court has no jurisdiction because the matters set forth in the bill do not constitute such a controversy or such controversies as can be heard and determined in this court, and because the court has no power to enforce, and therefore none to render, any final judgment or decree herein. We think these objections are disposed of by many decisions of this court. Cohen v. Virginia, 6 Wheat. 264, 378, 406, 5 L. ed. 257, 284, 291; Kansas v. Colorado, 185 U.S. 125 , 46 L. ed. 838, 22 Sup. Ct. Rep. 552, May 13, 1907, 206 U.S. 46 , 51 L. ed. 956, 27 Sup. Ct. Rep. 655; Missouri v. Illinois, 180 U.S. 208 , 45 L. ed. 497, 21 Sup. Ct. Rep. 331, 200 U.S. 496 , 50 L. ed. 572, 26 Sup. Ct. Rep. 268; Georgia v. Tennessee Copper Co. May 13, [206 U.S. 290, 318]   1907, 206 U.S. 230 , 51 L. ed. 1038, 27 Sup. Ct. Rep. 618; United States v. Texas, 143 U.S. 621 , 36 L. ed. 285, 12 Sup. Ct. Rep. 488; United States v. North Carolina, 136 U.S. 211 , 34 L. ed. 336, 10 Sup. Ct. Rep. 920; United States v. Michigan, 190 U.S. 379 , 47 L. ed. 1103, 23 Sup. Ct. Rep. 742.

    In Cohen v. Virginia, the Chief Justice said: 'In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more states, between a state and citizens of another state,' 'and between a state and foreign states, citizens, or subjects.' If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.'

    And, referring to the 11th Amendment, it was further said:

    By the cases cited, and there are many more, it is established that, in the exercise of original jurisdiction as between states, this court necessarily in such a case as this has jurisdiction.

    United States v. North Carolina and United States v. Michigan, supra, were controversies arising upon pecuniary demands,an d jurisdiction was exercised in those cases just as in those for the prevention of the flow of polluted water from one state along the borders of another state, or of the diminution in the natural flow of rivers by the state in which they have their sources through and across another state or states, or of the discharge of noxious gases from works in one state over the territory of another.

    The object of the suit is a settlement with West Virginia, and to that end a determination and adjudication of the amount due by that state to Virginia; and when this court has ascertained and adjudged the proportion of the debt of the original state which it would be equitable for West Virginia to pay, it is not to be presumed on demurrer that West Virginia would refuse to carry out the decree of this court. If such reoudiation should be absolutely asserted we can then consider by what means the decree may be enforced. Consent to be sued was given when West Virginia was admitted into the Union, and it must be assumed that the legislature of West Virginia would, in the natural course, make provision for the satisfaction of any decree that may be rendered.

    It is, however, further insisted that this court cannot proceed to judgment because of an alleged compact entered into between Virginia and West Virginia, with the consent of Congress, by which the question of the liability of Virginia to West Virginia was submitted to the arbitrament and award [206 U.S. 290, 320]   of the legislature of West Virginia as the sole tribunal which could pass upon it. As we have seen, the Constitution of West Virginia, when admitted into the Union, contained the provision: 'An equitable proportion of the public debt of the commonwealth of Virginia prior to the first day of January, in the year one thousand eight hundred and sixty-one, shall be assumed by this state, and the legislature shall ascertain the same as soon as may be practicable, and provide for the liquidation thereof by a sinking fund . . . and redeem the principal within thirty-four years.' And it is said that, on May 13, 1862, the legislature of Virginia passed an act entitled 'An Act Giving the Consent of the Legislature of Virginia to the Formation and Erection of a New State within the Jurisdiction of this State,' by which consent was given to the creation of the proposed new state, 'according to the boundaries and under the provisions set forth in the Constitution for the said state of West Virginia, and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861;' and that by the act of Congress the consent of that body was given to all those provisions which thus became a constitutional and legal compact between the two states. The act of May 13, 1862, was not made a part of the case stated in the bill, and its validity is denied by counsel for Virginia, but it is unnecessary to go into that, for when Virginia, on August 20, 1861, by ordinance provided 'for the formation of a new state out of the territory of this state,' and declared therein that 'the new state shall take upon itself a just proportion of the public debt of the commonwealth of Virginia prior to the 1st day of January, 1861,' to be ascertained as provided, it is to be supposed that the new state had this in mind when it framed its own Constitution, and that when that instrument provided that its legislature should 'ascertain the same as soon as practicable,' it referred to the method of ascertaining prescribed by the Virginia convention. Reading the Virginia ordinance and the West Virginia constitutional provision in pari materia, it follows [206 U.S. 290, 321]   that what was meant by the expression that the 'legislature shall ascertain' was that the legislature should ascertain, as soon as practicable, the result of the pursuit of the method prescribed, and provide for the liquidation of the amount so ascertained. And it may well be inquired why, in the forty-three years that have elapsed since the alleged compact was ete red into, West Virginia has never indicated that she stood upon such a compact, and, if so, why no step has ever been taken by West Virginia to enter upon the performance of the duty which such 'compact' imposed, and to notify Virginia that she was ready and willing to discharge such duty.

    It is also urged that Virginia had no interest in the subject-matter of the controversy because she had been released from all liability on account of the public debt of the old commonwealth, evidenced by her bonds outstanding on the 1st day of January, 1861. This relates to the acts of the general assembly of Virginia of March 30, 1871, March 28, 1879, February 14, 1882, February 20, 1892, March 6, 1894, and March 6, 1900. According to the bill, Virginia, by the act of March 30, 1871, and subsequent acts, in an attempt to provide for the funding and payment of the public debt, having estimated that the liability of West Virginia was for one third of the amount of the old bonds, provided for the issue of new bonds to the amount of two thirds of the total, and for the issue of certificates for the other third, which showed that Virginia held the old bonds, so far as unfunded, in trust for the holders or their assignees, to be paid by the funds expected to be obtained from West Virginia as her 'just and equitable proportion of the public debt.' The legislation resulted in the surrender of most of the old bonds to Virginia, satisfied as to two thirds, and held as security for the creditors as to one third. We do not care to take up and discuss this legislation. We are satisfied that, as we have jurisdiction, these questions ought not to be passed upon on demurrer. Kansas v. Colorado, 185 U.S. 125, 144 , 145 S., 46 L. ed. 838, 845, 846, 22 Sup. Ct. Rep. 552. And this also furnishes sufficient ground for not considering at length the objection of multi- [206 U.S. 290, 322]   fariousness. The observations of Lord Cottenham, in Campbell v. Mackay, 1 Myl. & C. 603, that it is impracticable to lay down any rule as to what constitutes multifariousness, as an abstract proposition; that each case must depend upon its own circumstances; and much must be left where the authorities leave it, to the sound discretion of the court,-have been often affirmed in this court. Oliver v. Piatt, 3 How. 333, 411, 11 L. ed. 622, 657; Gaines v. Chew, 2 How. 619, 642, 11 L. ed. 402, 411. But we do not mean to rule that the bill is multifarious. It is true that the prayer contains, among other things, the request, 'that all proper accounts may be taken to determine and ascertain the balance due from the state of West Virginia to your oratrix in her own right and as trustee aforesaid,' but it also prays that the court 'will adjudicate and determine the amount due to your oratrix by the state of West Virginia in the premises.' And we understand the reference to holding in trust to be in the interest of mere convenience, and that the bill cannot properly be regarded as seeking in chief anything more than a decree for 'an equitable proportion of the public debt of the commonwealth of Virginia on the 1st day of January, 1861,' The objections of misjoinder of parties and misjoinder of causes of action may be treated as resting on matter of surplusage merely, and, at all events, further consideration thereof may wisely be postponed to final hearing. Florida v. Georgia, 17 How. 491, 492, 15 L. ed. 188, 189; California v. Southern P. Co. 157 U.S. 249 , 39 L. ed. 690, 15 Sup. Ct. Rep. 591.

    The order will be--

    Demurrer overruled without prejudice to any question, and leave to answer by the first Monday of next term.

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