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and

sented.

The Commissioner appointed from Maryland differed from his two colleagues Majority in certain matters, and transmitted a separate report, so that the Court had before minority it a majority and a minority report. Counsel for Maryland sustained the exceptions reports made by the Maryland Commissioner, to the majority report. Counsel for West Pret Virginia moved, however, the acceptance of the majority report, and after carefully considering the matter, the Court overruled the exceptions of the Maryland Commissioner, confirmed the report of the majority, and entered the following decree, which, fortunately, ended the controversy between the two States of Maryland and West Virginia :

It is further adjudged, ordered and decreed that the line as delineated and set Decree forth in said report of Commissioners Monroe and Gannett, and upon the map confirmaccompanying the same and referred to therein, which line has been marked with ing the majority permanent monuments, as stated in said report, be, and the same is hereby, estab- report. lished, declared, and decreed to be the true boundary line between the said States of Maryland and West Virginia, and said map is hereby directed to be filed as part of this decree.

be shared

And it appearing that the total expenses and compensation of said Commissioners Costs to and the expenditures attending upon the discharge of their duties amount to the sum of $17,154.60, it is further adjudged, ordered and decreed that the same be, and they equally. are, hereby approved and allowed as part of the costs of this suit, to be borne equally between the parties to this cause. And it appearing from said report that the State of Maryland has already paid $5,038.40 of said amount, and that the State of West Virginia has already paid $12,116.11 of said amount, it is ordered that said amounts be credited to said States respectively in the settlement of the costs of this suit between them in accordance with the provisions of this decree and the former decrees entered herein.

It is further adjudged, ordered and decreed that the clerk of this court do transmit to the chief magistrates of the States of Maryland and West Virginia copies of this decree, duly authenticated under the seal of this court. . . .1

72. State of Virginia v. State of West Virginia.
(231 U.S. 89) 1913.

But the State of Virginia insisted after, as well as before, the overruling of its motion that the Court should take up the controversy, and decide it according to the principles of decision announced by that tribunal.

Two years and more had passed, and the Legislature of West Virginia had met in regular session, a Commission representing West Virginia had been appointed, but the course of proceeding convinced Virginia that the Commissioners would not reach a satisfactory conclusion. Therefore, on October 14, 1913, it renewed in effect Virginia the motion overruled two years previously, that the Court decide the controversy. again Again counsel for West Virginia interposed objection. Mr. Chief Justice White, on behalf of a unanimous Court, said:

moves for

a deci

sion.

West Virginia asks

for six months

But without reviewing the course of negotiations relied upon, we think it suffices to say that in resisting the motion the Attorney General of West Virginia on behalf of that State insists that the view taken by Virginia of the negotiations is a misappre hension of the purposes of West Virginia, as that State since the appointment of the Commission on its behalf has been relying upon that Commission, 'to consummate time. State of Maryland v. State of West Virginia (225 U.S. 1, 31).

more

The Court

grants a delay of five months.

West Vir

leave to

such an adjustment and settlement of said controversy as to commend the result of its negotiations to the favorable consideration of the Governor and the Legislative branch of its government, and thus terminate said controversy to the satisfaction of her people and the Commonwealth of Virginia, and upon the principles of honor and justice to both States, and in fairness to the holders of the debt for whose benefit this controversy is still pending'. The Attorney General further stating that in order to accomplish the results just mentioned, a sub-committee of the Commission of West Virginia has been and is engaged in investigating the whole subject with the. purpose of preparing a proposition to be submitted to the Virginia Debt Commission, to finally settle the whole matter, and that a period of six months time is necessary to enable the Committee to complete its labors.1

The Court could not well refuse a request of this kind coming from the duly qualified representative of a State of the Union, but as a grant of six months' delay might carry the case over to next term and result in an extension of more than a year, the Court assigned the 13th day of April next for a final hearing, saying, per Mr. Chief Justice White, on November 10, 1913:

Having regard to these representatives, we think we ought not to grant the motion to proceed at once to consider and determine the cause, but should, as near as we can do so consistently with justice, comply with the request made for further time to enable the Commissioners of West Virginia to complete the work which we are assured they are now engaged in performing for the purpose of effecting a settlement of the controversy. As, however, the granting of a six months' delay would necessitate carrying the case possibly over to the next term and therefore be in all probability an extension of time of more than a year, we shall reduce somewhat the time asked and direct that the case be assigned for final hearing on the 13th day of April next at the head of the call for that day.2

73. State of Virginia v. State of West Virginia.
(234 U.S. 117) 1914.

At the time set for the hearing of the controversy between Virginia and West ginia asks Virginia, April 13, 1913, the counsel for West Virginia appeared and, in accordance file a sup- with a motion filed some days previously, asked permission to file a supplemental plemental answer setting up credits which, if allowed, would materially reduce the sum due to

answer.

Virginia and asserting various reasons why interest should not be allowed to Virginia upon the West Virginia share of the indebtedness. Counsel for Virginia resisted this motion, insisting that the items embraced in the supplemental answer had in effect been considered in determining the amount of the principal sum due and payable by West Virginia, and that if not, the case should not now be postponed in order to enable West Virginia to avail itself of rights urged in the answer, because as stated in the summary of Virginia's objections, prepared by Mr. Chief Justice White on behalf of the Court: Every item concerning such alleged rights was proved in the case before the Master, was mentioned in his report, and was known or could have been known by the use of ordinary intelligence by those representing West Virginia.3

The question confronting the Court in this phase of the case was whether a further postponement should be granted at the request of West Virginia for the reasons advanced by its counsel. On this point, without expressing an opinion as

1 State of Virginia v. State of West Virginia (231 U.S. 89, 90–1).
2 Ibid. (231 U.S. 89, 91).

3 Ibid. (234 U.S. 117, 120).

to the merits of the motion, although stating that most of the items embraced in the answer were contained in the Master's report,' Mr. Chief Justice White stated on behalf of a unanimous Court:

rules of

We think it must be conceded that in a case between ordinary litigants the Relaxaapplication of the ordinary rules of legal procedure would render it impossible tion under the circumstances we have stated to grant the request. We are of the opinion, of strict however, that such concession should not be here controlling. As we have pointed proceout, in acting in this case from the first to last the fact that the suit was not an ordinary dure one concerning a difference between individuals, but was a controversy between where States involving grave questions of public law determinable by this Court under States are the exceptional grant of power conferred upon it by the Constitution, has been a guide parties. by which every step and conclusion hitherto expressed has been controlled. And we are of the opinion that this guiding principle should not now be lost sight of, to the end that when the case comes ultimately to be finally and irrevocably disposed of, as come ultimately it must in the absence of agreement between the parties, there may be no room for the slightest inference that the more restricted rules applicable to individuals have been applied to a great public controversy, or that anything but the largest justice after the amplest opportunity to be heard has in any degree entered into the disposition of the case. This conclusion, which we think is required by the duty owed to the moving State, also in our opinion operates no injustice to the opposing State, since it but affords an additional opportunity to guard against the possibility of error, and thus reach the result most consonant with the honor and dignity of both parties to the controversy.1

The Chief Justice, therefore, on behalf of the Court, and because of these convictions announced the following order :

That the motion on the part of the State of West Virginia to file the supplemental Leave answer be and the same is hereby granted; and that the averments in such answer granted. be and the same shall be considered as traversed by the State of Virginia; that the subject matter of the supplemental answer as traversed be at once referred for consideration and report to Charles E. Littlefield, Esq., the Master before whom the previous hearings were had, with directions to hear and consider such evidence and testimony as to the matters set forth in the supplemental answer as the State of West Virginia may deem advisable to proffer and such counter showing on the part of the State of Virginia as that State may deem advisable to make. The report on the subject to embrace the testimony so taken and the conclusions deduced therefrom as well as the views of the Master concerning the operation and effect of the proof thus offered, if any, upon the principal sum found to be due by the previous decree of this court. Nothing in this order to vacate or change in any manner or in any particular the previous decree, and the same to stand wholly unaffected by the order now made or any action taken thereunder until the examination and report herein provided for is made and this Court acts upon the same. It is further directed that the proceedings before the Master be so conducted as to secure a report on or before the second Monday of October, 1914.2

State of North Carolina v. State of Tennessee.

(235 U.S. 1) 1914.

The controversy between North Carolina and Tennessee (235 U.S. 1), decided A bounin 1914, concerns the boundary of the States and runs back to the early days of the dary dispute.

1 State of Virginia v. State of West Virginia (234 U.S. 117, 121).

2 Ibid. (234 U.S. 117, 122). For the succeeding phase of this case see State of Virginia v. State of West Virginia (238 U.S. 202), post, p. 503.

1569-24

Kk

Line de

the ces

Republic―indeed, to the very year in which the Constitution of the United States went into effect—and involves but a part of the line between the two States, called respectively the Slick Rock and Tellico basins or territories. In 1789 the territory now composing the State of Tennessee was ceded by North Carolina to the United States, and in the act of cession the boundary line westwardly from the French Broad River was described as follows:

Thence along the highest ridge of the said mountain [Iron Mountain] to the fined by place where it is called Great Iron Mountain or Smoky Mountain; thence along the extreme height of said mountain to the place where it is called Inicoi or Unaka Mountain, between the Indian towns of Ĉowee and Old Chota; thence along the main ridge of such mountain to the southern boundary of this State.1

sion of

1789.

Line

drawn by commissioners,

1796.

Joint commis

sion ap

pointed, 1820, with

power to

bind both States.

Line ratified

by both States, 1821.

In pursuance of this act of cession, a deed was made by North Carolina in 1790 following the same description, likewise followed by Act of Congress accepting the cession and also incorporated in the Constitution of the State of Tennessee. The States were large, the settlers few, and, naturally, the geography of the region not well known. Therefore, in 1796, North Carolina passed an act appointing commissioners to settle the boundary line between it and Tennessee, and the latter State appointed commissioners for a like purpose. In pursuance of the authority,' to quote the exact language of the court, 'the commissioners appointed by the States settled the line from the east to a point on the Great Iron or Smoky Mountain west of the Pigeon River, marked by a stone set up on the north side of the Cataloochee Turnpike Road, about due north from the present town of Waynesville, in Heywood county, North Carolina, and about six miles east of the point where the Tennessee River passes through the mountain range, leaving the line to the southern boundary of the States unmarked.' 2

'Subsequently,' to continue quoting from the opinion of Mr. Justice McKenna for a unanimous court, 'each of the States (North Carolina in 1819, Tennessee in 1820) passed acts appointing commissioners, to meet with commissioners appointed by the other," and with them to settle, run and mark the boundary line between the States "agreeable to the true intent and meaning" of the cession act. In the act of North Carolina it was provided that "this State will at all times hereafter ratify and confirm all and whatsoever the said commissioners, or the majority of those of each State, shall do, in and touching the premises, and the same shall be binding on this State"; and Tennessee enacted "that whatsoever the said commissioners or those appointed by each State shall do in and touching the premises shall be binding on this State ".' 3

Three commissioners were appointed by each State to settle, run and mark (' remark' is the statement of the Tennessee act) the boundary line between the States. In accordance with these instructions and the authority vested in them they met, ran and marked the boundary line, reported their action to the respective States, and each State ratified the line located by the commissioners. North Carolina ' fully established, ratified, and confirmed' it as the boundary line between the States of North Carolina and Tennessee forever'. Tennessee 'ratified, confirmed and established' it 'as the true boundary line between this State and the State of 1 State of North Carolina v. State of Tennessee (235 U.S. 1, 6). Ibid. (235 U.S. 1, 6).

Ibid. (235 U.S. 1, 6–7).

North Carolina'.

The report of the commissioners gives the beginning and end of the line and the intermediate courses and objects, and thus concludes:

The said dividing line run by us in its whole length is distinctly marked with two chops and a blaze on each fore-and-aft tree, and three chops on each side line tree; and mile-marked at the end of each mile; agreeably to the plats which accompany this report; and which said plats and reports are certified by us in duplicate, one for each of said States, in the same words, marks and figures; which we respectfully submit to the Governors of the said States of Tennessee and North Carolina.2

Upon this state of affairs Mr. Justice McKenna asks the very pertinent question, which he himself answers. Thus :

The immediate question, therefore, is, Where was the line run? And the answer would necessarily seem to be determined by the monuments, courses and distances, and, if these in any way conflict, by the line as marked by the commissioners if it can be ascertained, and the plats which accompanied the report certified in duplicate.3

Carolina

not dis

puted

until

1882.

There appears to have been no dispute as to the exact location of the line laid down by the commissioners. The contention of North Carolina seemed to be sup- Claim of North ported by the report of the commissioners, and tradition, as the court pointed out, sustained it by preponderating testimony. In 1836 it appears to have been recognized by the legislature of Tennessee, whose Surveyor-General, surveying and platting lands, made Slick Rock Creek the eastern boundary of the district. North Carolina, in turn, surveyed the lands in the disputed district in 1851, and two years later made grants therein. In 1882, however, an entry was made in the territory in controversy under the laws of Tennessee, and from a grant of that State in 1892 a controversy arose about the boundary line; and two cases, Belding v. Hebard, 103 Fed. Rep. 532, and Stevenson v. Fain, 116 Fed. Rep. 147, decided in the Circuit Court of Appeals of the United States by Judge, afterward Mr. Justice, Lurton, of the Supreme Court, favoured the contention of Tennessee.

To end this controversy, which was now full grown with two judicial decisions to its credit, and to correct the line between them, the States of North Carolina and Tennessee resorted to the Supreme Court of the United States, to determine the boundary line in dispute. The pleadings consisted of an original bill as amended, an answer and a cross bill on the part of Tennessee, and a replication by North Carolina. The case was argued by counsel and, as stated, the opinion was delivered by Mr. Justice McKenna. Without referring to the pleadings it will be sufficient for present purposes to quote a portion of the report of the commissioners who drew the line of 1821, accepted, ratified, and confirmed as the boundary between them by each of the States: Having met at the town of New Port in the State of Tennessee on the 16th day Text of of July A. D. 1821, to settle, run and mark the dividing line between the two States, from the termination of the line run by McDowell, Vance and Matthews in the year 199 of our Lord, 1799, to the Southern Boundary of the said States, . . . we proceeded to ascertain, run and mark the said dividing line as designated in the XIth Article called the Declaration of Rights, of the Constitution of the State of Tennessee, and in the Act of General Assembly of the State of North Carolina, entitled 'An Act for the purpose of ceding to the United States of America certain Western lands' therein described, passed in 1789: Which said dividing line as run by us, Begins at a stone set upon the north side of the Cataloochee Turnpike road, and marked on 1 State of North Carolina v. State of Tennessee (235 U.S. r, 9). 2 Ibid. (235 U.S. 1, 9).

Ibid. (235 U.S. 1, 9–10),

the

report of

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