SECOND. The decision of the court as to the costs of survey should have been Costs of the forecast by counsel, as, in a matter of equal interest to both, costs should be divided. survey to This was the decision of the court, and this simple statement would suffice. But be shared Mr. Justice Day was not content with a brief and curt statement, as a dispute between equally. States, however trifling it may seem, is nevertheless a matter of importance, deserving and receiving the most careful consideration of the court. Thus, Mr. Justice Day said on behalf of his brethren : An examination of the record shows that early in the proceedings in this case, on the twenty-sixth day of May, 1894, an order was entered by consent of parties, which authorized a survey to be made by surveyors to be agreed upon in writing by counsel for the respective States, said surveyor or surveyors to return to this court a report and map or maps made by him or them under the order, together with copies of such report, map or maps. The order provided for notice to be given attorneys for both parties of the time and place of commencing such surveys. Subsequently surveyors were designated, surveys were made and elaborate reports were filed in this court. Under these circumstances we are of opinion that the order heretofore made concerning the division of the costs should include the costs of such surveys. As was said by this court in Nebraska v. Iowa, 143 U.S. 359, 370, in making an order for a division of costs between the two States in a boundary dispute, the matter involved is governmental in character, in which each party has a real and yet not a litigious interest. The object to be obtained is the settlement of a boundary line between sovereign States in the interest, not only of property rights, but also in promotion of the peace and good order of the communities, and is one which the States have a common interest to bring to a satisfactory and final conclusion. Where such is the nature of the cause we think the expenses should be borne in common, so far as may be, and we therefore adopt so much of the decree proposed by the State of Maryland as makes provision for the costs of the surveys made under the order of this court.1 In view of the fullness with which the proceedings of the court have been summarized in the boundary dispute between Maryland and West Virginia, it will not be necessary to reproduce the decree in its entirety, but only, in this connexion, to quote that portion of it laying down the principles to be followed by the three commissioners appointed to draw and to mark the western boundary between the States, and, as in other cases, to report their proceedings to the court for its approval : First. That the true boundary line between the States of Maryland and West Form of Virginia is ascertained and established as follows: the Beginning at the common corner of the States of Maryland and Virginia on decree. the southern bank of the Potomac River at low-water mark at or near the mouth of the Shenandoah River (near Harper's Ferry,) and running thence with the southern bank of the said Potomac River, at low-water mark, and with the southern bank of the North Branch of the Potomac River at low-water mark, to the point where the north and south line from the Fairfax Stone crosses the said North Branch of the Potomac, and thence running northerly, as near as may be, with the Deakins or Old State line to the line of the State of Pennsylvania.... Fourth. That this decree shall not be construed as abrogating or setting aside the compact made between commissioners of the State of Maryland and the State of Virginia at Mount Vernon on the 28th day of March, 1785, and which was confirmed by the general assembly of Maryland and afterwards by act of the general assembly of Virginia passed on the 3rd day of January, 1786, but the said compact, except so far as it may have been superseded by the provisions of the Constitution of the 1 State of Maryland v. State of West Virginia (217 U.S. 577, 581-2). United States, or may be inconsistent with this decree, shall remain obligatory upon and between the States of Maryland and West Virginia, so far as it is applicable to that part of the Potomac River which extends along the border of said States, as ascertained and established by this decree.1 The Mt. Vernon compact was more than a settlement of the dispute between Maryland and Virginia. It carried within it the germ of greater things. It led to the welcome spectacle of two States agreeing upon the freedom of navigation of the Potomac. It suggested the possibility of an agreement of other States upon questions of commerce, which itself resulted in the meeting of commissioners in Annapolis in 1786, and the recommendation of that body for a convention to be held in Philadelphia the succeeding year for the revision of the Articles of Confederation. This fortunately happened, and resulted in the Constitution of the United States and the creation of the first international court in successful operation which this world has ever known.2 69. State of Virginia v. State of West Virginia. The third phase of the money dispute between Virginia and West Virginia Master's (220 U.S. 1), decided in 1911, turned upon the report of the master, Charles E. Littlereport field, appointed June 1, 1908, under decree of the court in the second phase of the presented (vide p. case of Virginia v. West Virginia (209 U.S. 514), decided in 1908, prepared in accor460, ante). dance with the decree in that case and likewise in accordance with the decree laid before the Supreme Court for the consideration of court and counsel. As the bill in this case was one for an accounting and as the report bristles with details and figures, as was natural and could not be avoided, it does not seem advisable or indeed desirable to attempt to follow the master through the wilderness of detail lest we fail to see the forest for the trees, but to follow Mr. Justice Holmes in the opinion which he delivered for a unanimous court. This is not without detail and figures but it lays down in masterly fashion the principles which should be applied in an international accounting, as in this case, where there were no principles of municipal law and where the principles of right and justice and equity between States, unencumbered by technicalities, obtain or should obtain in adjusting the share of indebtedness which a state or nation, separating itself from the parent, should assume of the indebtedness contracted before each went its separate ways. Judge ment of the Court. Techni be dis The untechnical character of suits between States has been repeatedly pointed out in the course of this narrative, and, although many times stated in the reports, it has never been more happily or more aptly phrased than in the following passage by Mr. Justice Holmes, with a clearness and conciseness for which his opinions, often instinctive with literary charms, are noted: The case is to be considered in the untechnical spirit proper for dealing with calities to a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State regarded. State of Maryland v. State of West Virginia (217 U.S. 577, 582, 585). See McLaughlin's Confederation and the Constitution, 1905, pp. 179 et seq; Sharpe's History of Maryland, vol. ii, pp. 528 et seq. alone. Missouri v. Illinois, 200 U.S. 496, 519, 520. Kansas v. Colorado, 206 U.S. 46, 82-84. Therefore we shall spend no time on objections as to multifariousness, laches and the like, except so far as they affect the merits, with which we proceed to deal. See Rhode Island v. Massachusetts, 14 Peters, 210, 257. United States v. Beebe, 127 U.S. 338.1 A fundamental question in this case was and is, because it is still pending, the nature of the obligation by virtue whereof West Virginia should assume and satisfy a just and equitable proportion of the debt contracted by the State of Virginia during such time as the counties included in the new State of West Virginia formed an integral part thereof. It is not necessary to resort to the law of nations in this matter, although international law may be invoked to re-enforce the conclusion otherwise reached. The inhabitants of the western counties, unwilling to follow their fellow citizens of the counties of the east in seceding from the Union, organized themselves as the Government of Virginia and were recognized by the Congress as the Reorganized Government of that great and historical State. This government recognized that the new State to be formed of the western counties should assume a portion of the debt contracted by the parent State in which the counties of West Virginia were then included and so stated in the so-called Wheeling ordinance. The Constitution of the new State as framed recognized this as a duty. The consent of Virginia to the admission of West Virginia as a State of the Union (meaning by Virginia in this connexion the reorganized State, for at that time the people of the eastern counties were confessing their faith on the field of battle elsewhere, and were not and could not be consulted as to the dismemberment of the Commonwealth), was given by act of its legislature passed May 13, 1862, 'under the provisions set forth in the Constitution for the said State of West Virginia', including the statement of the obligation to assume and satisfy an equitable portion of the indebtedness before January 1, 1861. The decision of the Supreme Court in the boundary dispute between the two States, Virginia v. West Virginia (11 Wallace, 39), decided in 1870, held that the provisions of the Constitution of West Virginia, consented to by the Restored State of Virginia, constituted a contract and was therefore binding upon the old and the new States. The 9th section of the Wheeling ordinance, material to the present purpose, is thus worded: The new State shall take upon itself a just proportion of the public debt of the Commonwealth of Virginia, prior to the first day of January, 1861, to be ascertained by charging to it all state expenditures within the limits thereof, and a just proportion of the ordinary expenses of the state government, since any part of said debt was contracted; and deducting therefrom the monies paid into the treasury of the Commonwealth from the counties included within the said new State during the said period.2 In pursuance of this direction, the eighth section of article 8 of the Constitution of the West Vir An equitable proportion of the public debt of the Commonwealth of Virginia, Constituprior to the first day of January, in the year one thousand eight hundred and sixty- tion of one, shall be assumed by this State; and the Legislature shall ascertain the same ginia, as soon as may be practicable, and provide for the liquidation thereof, by a sinking Art. 8. fund sufficient to pay the accruing interest, and redeem the principal within thirtyfour years.3 1 State of Virginia v. State of West Virginia (220 U.S. 1, 27). Ibid. (220 U.S. 1, 25). Ibid. (220 U.S. 1, 26). West Virginia is bound by contract. The debt calculated according to local ments. Counsel for West Virginia insisted that the master should take into account the provisions of the ordinance regarded by them as more favourable to the contentions of their client. Where they agreed with the provisions of the Constitution of West Virginia it was unnecessary to do so; where they differed, it could not be done, in that a formal contract is universally held to include within its terms those portions of the preliminary negotiations which the parties cared to preserve and to reject those portions inconsistent with the final terms of such a contract. As Mr. Justice Holmes puts it: the consent of the legislature of the restored State was a consent to the admission of West Virginia under the provisions set forth in the constitution for the would-be State, and Congress gave its sanction only on the footing of the same constitution and the consent of Virginia in the last-mentioned act. These three documents would establish a contract without more. We may add, with reference to an argument to which we attach little weight, that they establish a contract of West Virginia with Virginia. There is no reference to the form of the debt or to its holders, and it is obvious that Virginia had an interest that it was most important that she should be able to protect. Therefore West Virginia must be taken to have promised to Virginia to pay her share, whoever might be the persons to whom ultimately the payment was to be made.1 The court therefore, and necessarily it would seem, eliminated the so-called Wheeling ordinance from consideration, leaving the nature and extent of the obligation to be determined by the provisions of the constitution of West Virginia to be construed as a contract between the United States and the contracting States. In the course of his opinion Mr. Justice Holmes takes up and considers, only to reject, certain contentions of counsel for West Virginia. The first of these was that the debt of Virginia was incurred for local improvements, and that it should therefore be divided according to the territory in which the money was expended. To this the learned Justice replied: We see no sufficient reason for the application of such a principle to this case. cannot be In form the aid was an investment. It generally took the shape of a subscription for stock in a corporation. To make the investment a safe one the precaution was taken to require as a condition precedent that two or three-fifths of the stock should have been subscribed for by solvent persons fully able to pay, and that one-fourth improve- of the subscriptions should have been paid up into the hands of the treasurer. From this point of view the venture was on behalf of the whole State. The parties interested in the investment were the same, wherever the sphere of corporate action might be. The whole State would have got the gain and the whole State must bear the loss, as it does not appear that there are any stocks of value on hand. If we should attempt to look farther, many of the corporations concerned were engaged in improvements that had West Virginia for their objective point, and we should be lost in futile detail if we should try to unravel in each instance the ultimate scope of the scheme. It would be unjust, however, to stop with the place where the first steps were taken and not to consider the purpose with which the enterprise was begun. All the expenditures had the ultimate good of the whole State in view.2 Again, it was argued by counsel for West Virginia, on the assumption that the provision of its Constitution created a contract by which it was bound, that the equitable proportion of the indebtedness was to be determined by the legislature, not by the parties to the contract, much less by the court, inasmuch as the legislature 1. State of Virginia v. State of West Virginia (220 U.S. 1, 28). Ibid. (220 U.S. 1, 29–30). of that State was the agency designated for this purpose and could not be changed without the consent of the parties to the agreement, of which West Virginia was one. To this contention Mr. Justice Holmes briefly and pointedly replied: These arguments do not impress us. The provision in the constitution of the State of West Virginia that the legislature shall ascertain the proportion as soon as may be practicable was not intended to undo the contract in the preceding words by making the representative and mouthpiece of one of the parties the sole tribunal for its enforcement. It was simply an exhortation and command from supreme to subordinate authority to perform the promise as soon as might be and an indication of the way. Apart from the language used, what is just and equitable is a judicial question similar to many that arise in private litigation, and in nowise beyond the competence of a tribunal to decide.1 While the contract is thus to be the measure if not the origin of the liability of the State of West Virginia, it is of interest to show the accordance between the contract and international law, which is fortunately at hand in the case of Hartman v. Greenhow (102 U.S. 672, 677-8), decided in 1880, to which Mr. Justice Holmes refers, but from which he does not quote. In delivering the opinion of the court in that case, dealing with bonds issued by the State of Virginia in 1871, to extinguish two-thirds of this very indebtedness, and taxing West Virginia with the payment of a third thereof, Mr. Justice Field said: national During the war a portion of her territory was separated from her, and by its people a new State, named West Virginia, was formed, and by the Congress of the United States was admitted into the Union. Nearly one-third of her territory and people were thus taken from her jurisdiction. But as the whole State had created the indebtedness for which the bonds were issued, and participated in the benefits The rule obtained by the moneys raised, it was but just that a portion of the indebtedness of intershould be assumed by that part which was taken from her and made a new State. law. Writers on public law speak of the principle as well established, that where a State is divided into two or more States, in the adjustment of liabilities between each other, the debts of the parent State should be ratably apportioned among them. On this subject Kent says: If a State should be divided in respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreement, their rights are to be enjoyed and their obligations fulfilled by all the parts in common.' I Com. 26. And Halleck, speaking of a State divided into two or more distinct and independent sovereignties, says: 'In that case, the obligations which have accrued to the whole before the division are, unless they have been the subject of a special agreement, ratably binding upon the different parts. This principle is established by the concurrent opinions of text-writers, the decisions of courts, and the practice of nations.' International Law, c. 3, sect. 27. Mr. Justice Field then goes on to say that: In conformity with the doctrine thus stated by Halleck, both States-Virginia and West Virginia-have recognized in their Constitutions their respective liability for an equitable proportion of the old debt of the State, and have provided that measures should be taken for its settlement. The Constitution of Virginia of 1870 declared that the General Assembly should provide by law for adjusting with the State of West Virginia the proportion of the public debt of Virginia proper to be borne by the States of Virginia and West Virginia', and should provide that such sums as shall be received from West Virginia shall be applied to the payment of the public debt of the State'. Art. 10, sect. 19. State of Virginia v. State of West Virginia (220 U.S. 1, 30−1). |