Decree in North Carolina. and is known as the Tellico territory. As to this Mr. Justice McKenna, speaking for the court, said: The considerations which determine decision upon the contentions of the States as to the Slick Rock basin apply to the Tellico territory. Indeed, they make more strongly against the Tennessee contention. Without the newly discovered evidence the judicial judgment was adverse to that contention. Stevenson v. Fain, supra. The judgment is fortified by the evidence in this case. The comments of the court in that case and the considerations which have been expressed in this are sufficient to disclose the grounds of deciding that North Carolina is also right in its contention as to the Tellico territory and in the relief sought by its bill. Mr. Justice McKenna therefore and thereupon was able to announce the judgement of the court, to the effect that : A decree should be entered adjudging that the disputed part of the boundary favour of line between the States of North Carolina and Tennessee which was run by the commissioners appointed by the respective States in 1821 and who made report thereof dated at Knoxville, Tennessee, August 31, 1821, descends from the extreme height of the mountain northeast of the Tennessee River, crosses the river at a distance of sixty-five miles from the beginning to a point on the southwest bank thereof just west of the mouth of the stream known as Slick Rock Creek, follows the creek a short distance to a ridge leading up to the main ridge, follows said ridge up to the summit known as Big Fodderstack Mountain and follows the main ridge thence to the junction of the Big Fodderstack and Hangover leads, and thence follows the main ridge of the Unaka Mountain southwesterly, according to the plat exhibited with this opinion.1 Commissioners appoint ed. There could, therefore, be no doubt as to the meaning of the court. It stated the direction of the line in accordance with the report of the commissioners, confirmed by the notebook of the surveyor and the plat annexed to the report of the commissioners, likewise annexed and made a part of the decree by the Supreme Court. But, although this decided the controversy, it did not mark or trace the line whose direction was announced. Therefore, the decree continued: And, further, that commissioners be appointed to permanently mark said line.2 It is intimated, in the comment upon the case of Virginia v. West Virginia (238 U.S. 202), decided in 1915, that the opinion of the court, delivered by Mr. Justice Hughes, was what might be called a matter of fact opinion, and it may be said of Mr. Justice McKenna's opinion in this case that it is very businesslike. It is a long cry from the case of Rhode Island v. Massachusetts (4 Howard, 591), the first case in which a final judgement was entered upon a hearing of a controversy between two States, to the present decision; and in the meantime the court has become accustomed to decree for and against States. And while familiarity cannot in this instance be said to breed contempt, it engenders confidence, introduces the methods obtaining in business, and a feeling of assurance akin to command, of which Mr. Justice McKenna's concluding sentence may be cited as a fair example: Counsel for the respective States are given forty days from the entry hereof to agree upon three commissioners and to present to the court for its approval a decree drawn according to the directions herein given, in default of which agreement and decree this court will appoint commissioners, and itself draw the decree in conformity herewith. Costs to be equally divided between the States.3 State of North Carolina v. State of Tennessee (235 U.S. 1, 16–17). 2 Ibid. (235 U.S. 1, 17). 3 Ibid. (235 U.S. 1, 17). For the final phase of this case see State of North Carolina v State of Tennessee (240 U.S. 652), post, p. 512. These entries, the learned Justice says, are followed by the courses and distances, with trees by name of kind and other physical objects'. It would be without present interest to enter into the details of the case, as the present purpose is to show the nature and extent of the boundary dispute, the evidence at hand for its determination, and the fact that, by a resort to the Supreme Court of the United States and by an examination of the evidence by the members of that international tribunal the line was drawn which had caused the States to fall out, perplexed judges, and baffled the authorities of the two States to settle amicably. As showing how this may be done in the future in a case similarly circumstanced, the following passage is quoted from the opinion of Mr. Justice McKenna, which shows, as it were, the Justice at work: court. The documents undoubtedly have inaccuracies and fault may be found with Evidence them, but allowing for it they have a direction and concurrent strength which examined cannot be resisted when combined with other testimony, and demonstrate that the by the commissioners did not locate the dividing line on the Hangover ridge but located it along Slick Rock Creek to Fodder Stack. Their report agrees with such line and the local topography justified its selection. The dividing line as run by them, they reported, began at a stone set upon the North side of the Cataloochee Turnpike road, running thence a southwesterly course to the Bald Rock on the summit of the Great Iron or Smoky Mountain and continuing southwesterly on the extreme height thereof to where it strikes Tennessee River . . . and crossing Tennessee River at the distance of Sixty-five miles from the beginning'. Thus far there is no dispute or uncertainty. The summit' of the mountain and its extreme height' should determine the locality of the line and the Tennessee River at a distance of sixty-five miles from the beginning. The next call has no such certain and conspicuous witness. The river is crossed, and thence the line runs to the main ridge' and then along the extreme height' of it. The words of the call suppose an interval between the river and the main ridge' whose extreme height thereafter is to be followed,-to be definite, a course up Slick Rock Creek to Fodder Stack. But granting that it could be literally satisfied without supposing such an interval, that is, connecting immediately with Hangover ridge, we must resort to the evidence to resolve the conflict of suppositions. We find the first established by the evidence which we have referred to and the marks on the trees. And these marks have of themselves great strength of proof, irresistible strength when combined with the other testimonies. They are the same in character as those on the undisputed part of the line, made, therefore, to define the continuity of the line, and the report explicitly states that the line was so defined in continuity-marked' in its whole length'. We certainly cannot consider that a few trees-two or three only-identified as 'State-line trees', marked on Hangover ridge satisfy this statement or determine that a line along that ridge was the ultimate one selected and the other but tentative, notwithstanding there were found on it from the river to Fodder Stack twenty-seven marked trees and from the latter point to the junction about as many more. Conjecture against this we cannot indulge. Imagination is not proof, and, we repeat, whatever might be said of any particular piece of evidence standing by itself, their union and concurrence amount to demonstration. And, we repeat, it must have been supposed by the States when they constituted the commission that judgment would have to be exercised, and, when exercised, should be binding. The contention of North Carolina is, therefore, sustained by the proof as to Slick Rock Basin.1 This settles the north-eastern part of the disputed territory called by the court the Slick Rock basin. The other portion in dispute was to the south-west of this, 1 State of North Carolina v. State of Tennessee (235 U.S. 1, 14–15). Decree in North Carolina. and is known as the Tellico territory. As to this Mr. Justice McKenna, speaking for the court, said: The considerations which determine decision upon the contentions of the States as to the Slick Rock basin apply to the Tellico territory. Indeed, they make more strongly against the Tennessee contention. Without the newly discovered evidence the judicial judgment was adverse to that contention. Stevenson v. Fain, supra. The judgment is fortified by the evidence in this case. The comments of the court in that case and the considerations which have been expressed in this are sufficient to disclose the grounds of deciding that North Carolina is also right in its contention as to the Tellico territory and in the relief sought by its bill. Mr. Justice McKenna therefore and thereupon was able to announce the judgement of the court, to the effect that: A decree should be entered adjudging that the disputed part of the boundary favour of line between the States of North Carolina and Tennessee which was run by the commissioners appointed by the respective States in 1821 and who made report thereof dated at Knoxville, Tennessee, August 31, 1821, descends from the extreme height of the mountain northeast of the Tennessee River, crosses the river at a distance of sixty-five miles from the beginning to a point on the southwest bank thereof just west of the mouth of the stream known as Slick Rock Creek, follows the creek a short distance to a ridge leading up to the main ridge, follows said ridge up to the summit known as Big Fodderstack Mountain and follows the main ridge thence to the junction of the Big Fodderstack and Hangover leads, and thence follows the main ridge of the Unaka Mountain southwesterly, according to the plat exhibited with this opinion.1 Commissioners appoint ed. There could, therefore, be no doubt as to the meaning of the court. It stated the direction of the line in accordance with the report of the commissioners, confirmed by the notebook of the surveyor and the plat annexed to the report of the commissioners, likewise annexed and made a part of the decree by the Supreme Court. But, although this decided the controversy, it did not mark or trace the line whose direction was announced. Therefore, the decree continued: And, further, that commissioners be appointed to permanently mark said line." It is intimated, in the comment upon the case of Virginia v. West Virginia (238 U.S. 202), decided in 1915, that the opinion of the court, delivered by Mr. Justice Hughes, was what might be called a matter of fact opinion, and it may be said of Mr. Justice McKenna's opinion in this case that it is very businesslike. It is a long cry from the case of Rhode Island v. Massachusetts (4 Howard, 591), the first case in which a final judgement was entered upon a hearing of a controversy between two States, to the present decision; and in the meantime the court has become accustomed to decree for and against States. And while familiarity cannot in this instance be said to breed contempt, it engenders confidence, introduces the methods obtaining in business, and a feeling of assurance akin to command, of which Mr. Justice McKenna's concluding sentence may be cited as a fair example: Counsel for the respective States are given forty days from the entry hereof to agree upon three commissioners and to present to the court for its approval a decree drawn according to the directions herein given, in default of which agreement and decree this court will appoint commissioners, and itself draw the decree in conformity herewith. Costs to be equally divided between the States.3 1 State of North Carolina v. State of Tennessee (235 U.S. 1, 16-17). 2 Ibid. (235 U.S. 1, 17). Ibid. (235 U.S. 1, 17). For the final phase of this case see State of North Carolina v State of Tennessee (240 U.S. 652), post, p. 512. 75. State of Virginia v. State of West Virginia. (238 U.S. 202) 1915. The last phase of the case of Virginia v. West Virginia (234 U.S. 117), decided in 1913, to be considered was that in which counsel for the latter State asked leave, granted by the court, over the opposition of Virginia, to file a supplemental answer, claiming that certain items mentioned in the master's report were an asset of the State of Virginia on January 1, 1861, and therefore to be taken into account in fixing the proportion of the debt to be assumed by West Virginia. This question was referred to the master for investigation and report. This was done, and the original and supplemental report being before the court, the present case of Virginia Case set v. West Virginia (238 U.S. 202), decided in 1915, was set for hearing upon the merits down for as disclosed by the pleadings and the reports of the master. Objections were made and argued to the allowance or disallowance of items by counsel in behalf of plaintiff, defendant, and, in some instances, the bond-holders, and the court, fully advised as to all phases of the case, familiar with every detail and appreciating fully its importance, proceeded to judgement. The honour fell to Mr. Justice Hughes to deliver what the court would no doubt consider to be the final opinion in the case. It was not, because West Virginia, against which State the judgement lay, failed to comply with it, and steps have been found necessary on the part of Virginia to seek execution at the hands of the court. The opinion, however, which Mr. Justice Hughes delivered, was the unanimous opinion of his brethren and of the court. Of the many objections interposed by counsel to the report of the master, some relate to the allowance or disallowance of items in whole or in part, others concern questions of evidence and the weight to be given to it; still others involve questions of principle. All were of interest to the parties to the suit, but few have a permanent interest. Therefore the first class alone will be considered; the second noted in passing; and the third, very few in number, explained in order that the case and the principles involved in its decision be understandable and understood. final hearing. master. The first question to be taken up is that raised by counsel for Virginia in the supplemental answer filed on behalf of that State. By way of introduction to this phase of the case, and indeed as an introduction to its general consideration, a portion of the opinion of Mr. Justice Hughes is quoted, in which he summarizes, very briefly yet adequately, the conclusions of the master set forth in his reports. After stating Report of that from the report of the master it appears that the matters mentioned as assets, the and claimed as credits, were set forth as such in the supplemental answer for the first time, and that those items referred to in an earlier proceeding were in the main for a different purpose, 'The Master reports', in the language of the learned Justice, 'that, in his view, the assets as detailed by him were applicable according to their value as of January 1, 1861, to the public debt of Virginia which was to be apportioned as of that date; that the value of these assets amounted to $14,511,945.74, of which West Virginia's share-23 per cent.-would be $3,410,307.25. That if this amount were to be credited to her in reduction of her liability, there should be offset certain moneys and stocks received by her from the Restored Government of Judgement of the court. Virginia aggregating $541,467.76, leaving a net credit to West Virginia of $2,868,839.49. This would reduce West Virginia's liability for principal from $7,182,507.46 to $4,313,667.97. The master also concluded that West Virginia by virtue of her contract with Virginia is liable for interest from January 1, 1861, the date as of which her share of the principal is determined.1 It appears that the moneys and securities in question had been specifically appropriated to the payment of the public debt. The money credits were in the form of cash in the sinking fund of January 1, 1861, and the securities on hand at that date purchased with the proceeds of the debt. The act of the General Assembly of 1838, authorizing the negotiation of loans, provided that stock purchased with the money so borrowed, together with dividends and other income accruing therefrom, should be 'appropriated and pledged' for the payment of interest and for the redemption of the principal borrowed. The Constitution of 1851 directed, by the 29th section of Article 4, the creation of a sinking fund, and in regard to the matter of stocks provided that 'The General Assembly may, at any time, direct a sale of the stocks held by the Commonwealth in internal improvement and other companies; but the proceeds of such sale, if made before the payment of the public debt, shall constitute a part of the sinking fund to be applied in like manner'. In 1853 the legislature established the sinking fund with a corresponding provision. On this state of facts Mr. Justice Hughes held on behalf of the court: The question then is not one of the division of public property, merely because of its character as such. In the light of the origin and nature of the investments which the Master has reviewed and valued, and of the provisions of the constitution and statutes of the State, it is clear that these particular assets must be regarded as a fund specially devoted to the payment of the debt to be apportioned. In this view, West Virginia is entitled to have these assets taken into account in fixing the amount of her liability. It cannot be conceived that, being held for the undivided debt, it was intended that they should be applied exclusively to Virginia's share. As West Virginia is to bear 231 per cent. of the debt as it existed on January 1, 1861, she should be credited with a similar part of the fund, fairly valued, which had been pledged for its discharge. This equity is inherent in the obligation.2 It is to be observed that, in his computations, the master ascertained the liabilities of the States for the common indebtedness as of January 1, 1861, and Virginia and its committee of bond-holding creditors objected that the value of the assets should be ascertained as of June 20, 1863, which will be recalled was the date of separation of the States. The 8th section of Article VIII of the constitution of West Virginia taxed the State with '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', and to ascertain this debt the assets on hand as of that date, not at some later date, would necessarily have to be considered. In determining the ratio of the debt when thus established, the value of property of each of the States at the date of separation could be taken, but the debt itself was to be fixed and determined by the Constitution of West Virginia, concurred in by Virginia, approved by the Congress of the United States, and which the court on various State of Virginia v. State of West Virginia (238 U.S. 202, 206). Ibid. (238 U.S. 202, 207–8). |