Judge ment in favour of Tennessee. Appointment of commissioners Nevertheless, under the prayer of Virginia for general relief, there can be no objection to the restoration of any marks which may be found to have been obliterated or become indistinct upon the line as herein defined.1 And on the whole case, speaking for the court, Mr. Justice Field said : Our judgment, therefore, is that the boundary line established by the States of Virginia and Tennessee by the compact of 1803 is the true boundary between them, and that on a proper application, based upon a showing that any marks for the identification of that line have been obliterated or have become indistinct, an order may be made, at any time during the present term, for the restoration of such marks without any change of the line.2 36. State of Iowa v. State of Illinois. (151 U.S. 238) 1894. The second phase of the case of Iowa v. Illinois (151 U.S. 238), decided in 1894, involves but a single point, and of no great importance in itself, but all suits between States are of fundamental importance to judicial settlement. The first time the case was before the court it was decreed that the middle of the main navigable channel of the Mississippi River, at the places where the nine bridges mentioned in the pleadings cross the said river, was to be the boundary line between the two States; and it was ordered that a commission be appointed, to consist of three persons, to be named by the court on suggestion of counsel, to ascertain and designate at said places' the boundary line between the States; and the commission, as in all other cases, was to present its report to the court for further action.3 Pursuant to this decree a joint request, dated January 19, 1893, was filed in the court on March 6 of that year, requesting the appointment of the commissioners, and, as a matter of urgency, that the line at the Keokuk and Hamilton bridge be (vide, PP. located at once. Whereupon the court appointed the commissioners, and, because 285-6, ante). of the emergency, directed that they 'proceed at once to ascertain and mark the boundary line between said States at the Keokuk and Hamilton bridge, and report at once their action in that regard before proceeding to ascertain the line or mark the same at the other bridges, and that afterward they determine and mark the said State line at the other eight bridges, when requested by either party, and report the same'. On March 30, 1893, the commissioners filed their report as to the boundary line at the bridge mentioned, and on that day counsel for the State of Iowa moved for an order confirming the report, believing, and therefore stating, that the motion was consented to by the State of Illinois. Whereupon, on April 10, 1893, the court confirmed the report and ordered that the commissioners' proceed to determine and mark the boundary line between said States throughout its extent '.4 On October II, 1893, at the very beginning of the new term of court, counsel for Illinois moved to set aside the order confirming the report of the commissioners, on the ground that notice had not been given for its confirmation, and on the further ground that the consent of the State was signified to the court through mistake 1 State of Virginia v. State of Tennessee (148 U.S. 503, 527-8). 2 Ibid. (148 U.S. 503, 528). For the succeeding phase of this case see State of Virginia, v. State of Tennessee (158 U.S. 267, post, p. 301). and inadvertence'. Iowa opposed this motion, and numerous affidavits were filed on both sides. Upon a hearing of this motion, and after a careful examination of the papers, the court reached the conclusion that, through a misunderstanding or misapprehension, the order of confirmation was improvidently entered, in that the State of Illinois had not received due notice of the application and had not consented to the order. The subsequent phase of this case is given in the language of Mr. Chief Justice Fuller, who spoke for his brethren: It is objected by the State of Iowa that the order of April 10 was a final finding and decree, and that it cannot be changed or set aside upon motion at a term of court subsequent to that at which it was entered; but we regard the order as interlocutory merely. The confirmation of the report was but a step in the cause and not a final decree deciding and disposing of the whole merits of the cause, and discharging the parties from further attendance. We cannot dispose of the case by piecemeal, and until the boundary line throughout its extent is determined, all orders in the case will be interlocutory. mission In the exercise of original jurisdiction in the determination of the boundary Report of line between sovereign States, this court proceeds only upon the utmost circumspec- the comtion and deliberation, and no order can stand in respect of which full opportunity not conto be heard has not been afforded. Without intimating any opinion on the controversy firmed. raised as to the action of the commissioners, the order of April 10, 1893, so far as it confirms the report in question, will be vacated, and it is so ordered.1 37. State of Virginia v. State of Tennessee. parties. The second phase of Virginia v. Tennessee (158 U.S. 267), decided in 1895, came before the Supreme Court in 1894 and turned upon a question of pleading. On April 15, 1895, the Commonweath of Virginia, by its Attorney-General, gave notice to the Attorney-General of Tennessee that, on May 6, 1895, he would move the Chief Justice and Associate Justices of the Supreme Court of the United States Motion to enter as a decree of said court, in the case aforesaid, the decree in form and sub- for a decree by stance as set out in the paper marked " H", attached hereto and made part and consent parcel of this notice, the said paper H" being the form and substance of a decree of the and agreed by and between the counsel representing the parties plaintiff and defendant in the aforesaid cause'. The Attorney-General for Tennessee accepted service of the notice and consented that the decree in the form proposed by counsel for Virginia should be made in this cause', and without amendment to the original bill filed by the State of Virginia, if this could lawfully be done. The paper marked 'H' is a form of a decree marking the boundary line between the two States in controversy, and as there was no objection on the part of Tennessee to the line as such, it is to be presumed that it was in accordance with the decree of the court in the first phase of the case. With the consent of the States, it would appear to the layman that the court would gladly enter the proposed decree, thus terminating the conflict. As it would, however, have been irregular to do so, inasmuch as the application to run and 1 State of Iowa v. State of Illinois (151 U.S. 238, 241-2). For the final phase of this case see State of Iowa v. State of Illinois (202 U.S. 59), decided in 1906 (post, p. 425). Motion refused nical re-mark the line of 1803 should have been addressed to the court while it was still in possession of the case, and it could not be entertained after the expiration of the term in which the court had denied the motion to run and re-mark the line of 1803. The reason for this action is thus stated by Mr. Chief Justice Fuller on behalf of the Supreme Court: Subsequently, on May 15, 1893, a motion was made on behalf of the State of Virginia to restore the boundary marks between the two States alleged to be indistinct on tech- and obliterated, and to allow complainant to take additional testimony, the consideration of which was postponed to October term, 1893, when and on October 16, 1893, grounds. the motion was denied. Application is now made on behalf of the State of Virginia to this court to enter a decree in this cause for the remarking of the boundary line as set forth therein, to the granting of which the State of Tennessee consents. But we find ourselves unable to enter the order desired, as our power over the cause ceased with the expiration of October term, 1893, and it should not have been retained on the docket. The application must therefore be denied, but without prejudice to the filing of a new bill or petition, upon which, the parties being properly before the court and agreeing thereto, such a decree may be entered.1 Impor tance of correct From the statements repeatedly made in the opinions of the justices speaking for the Supreme Court in cases between States, it must have been a source of regret that, by its decree, the boundary line between Virginia and Tennessee could not be re-run and re-marked, as the States themselves were willing to have it done. But a great English judge once said that it was even of more importance to the business of the world to have the law settled than to have it settled in any particular practice. way. The States can have no greater guarantee for the administration of justice between them than the certitude that the Supreme Court will decide according to the rule, not according to what may be the desires of individual members, and that the fundamental rule shall be observed in practice and under what must have been trying circumstances; and that consent of the parties litigant cannot confer jurisdiction' where, for good and sufficient reason, the court is without it. The rights of the parties were not prejudiced by this decision. Virginia could, as the court stated, file an appropriate bill in the court, with the assurance that the State of Tennessee would, in appropriate form, consent to the prayer contained in the bill that the boundary line of 1803 should be re-run and re-marked, either in its entire extent or in any and all places where, by action of time, it had become indistinct or obliterated. 38. State of Indiana v. State of Kentucky. Just as in the two previous cases, the case of Indiana v. Kentucky (159 U.S. 275), decided in 1895, is a second phase of the controversy between these States.2 The court, it will be recalled, decided in favour of Kentucky, as it found that the Ohio River at the date of separation flowed to the north of Green River Island. Therefore the Court decreed the Island to Kentucky, and likewise recognized the right of 1 State of Virginia v. State of Tennessee (158 U.S. 267, 270–1). For the succeeding phase of this case see State of Tennessee v. State of Virginia (177 U.S. 501), post, p. 344 The first phase is reported as State of Indiana v. State of Kentucky (136 U.S. 479), decided in 1890, ante, p. 256. For subsequent phases see post, p. 329 (163 U.S. 520), decided in 1896, Kentucky to exercise jurisdiction beyond the Island to low-water mark on the southern shore of Indiana, although the channel of the Ohio had, subsequently to the separation, shifted to the south of the Island. The court stated as a material portion of its judgement, that 'commissioners will be appointed to ascertain and run the boundary line as herein designated and report to this court, upon which appointment counsel of the parties will be heard on notice'. sioners In accordance with this judgement, counsel for Indiana and Kentucky appeared Commisat the bar of the court in the October term of 1895, stating that they had agreed apupon the appointment of commissioners, and submitted a draft of an order in accor- pointed. dance with the judgement, which they moved to have entered as the decree of the court or as the basis thereof. The court, speaking in the person of Mr. Chief Justice Fuller, appointed three commissioners, recommended by counsel, 'to ascertain and run the boundary line between the said States of Indiana and Kentucky, as designated in the said opinion of this court heretofore filed, and judgment and decree heretofore entered herein, and to report to this court with all reasonable dispatch their doings in that behalf '.1 Thus ended the second of the four cases of Indiana v. Kentucky. 39. United States v. State of New York. The reader has already had an opportunity of considering one case in which the United States intervened in judicial proceedings between two States, Florida v. Georgia (17 Howard, 478), and two cases in which it appeared as a party plaintiff upon the record, United States v. State of North Carolina (136 U.S. 211), and United States v. State of Texas (143 U.S. 621), and, by a curious coincidence, three cases in which the United States appeared as a party defendant, United States v. State of Louisiana (123 U.S. 32); United States v. State of Louisiana (127 U.S. 182); State of Indiana v. United States (148 U.S. 148). The fourth of this series, endless it is to be hoped, was that of the United States v. State of New York (160 U.S. 598), decided in 1896, upon an appeal from the Court of Claims, in which the United States has specifically consented, by act of Congress, to be sued in certain specified cases by any person, natural or artificial, having a claim of the specified kind, and by a foreign person if its State allows itself to be sued by citizens of the United States. In the court below the suit was officially entitled State of New York v. United States, and as the United States appealed from the decision it is officially known as the United States v. State of New York, inasmuch as it is the practice of the Supreme Court to have its cases entered in the name of the plaintiff if it be begun in the Supreme Court, or in the name of the appellant if it reach that tribunal upon appeal. The case was for a money judgement, different in origin from those already considered, and different in form, inasmuch as, pursuant to section 1063 of the Revised Statutes of the United States, the Secretary of the Treasury, in 1889, transmitted papers in the claim of New York against the United States, pending in the Treasury Department, to the Court of Claims, for adjustment and decision. The case falls naturally into two parts, the facts giving rise to it-which in themselves State of Indiana v. State of Kentucky (159 U.S. 275, 277). A claim for money spent on federal are not without interest-and the principle of law to be applied, involving an interpretation of various acts of Congress affecting the jurisdiction of the Court of Claims, a subject then of importance, when they existed separate and distinct from one another, but of less interest to-day because of the Judiciary Act of the United States of March 3, 1913, in which the acts affecting the jurisdiction of that court have been amalgamated and codified. In delivering the unanimous opinion of the Supreme Court, Mr. Justice Harlan thus briefly states the origin of the case, the facts involved, and the laws of Congress giving rise to it : On the 3d day of January, 1889, the Secretary of the Treasury transmitted to the Court of Claims all the papers and vouchers relating to a claim of the State of New York against the United States, then pending in the Treasury Department, for interest paid on money borrowed and expended in enrolling, subsisting, clothing, supplying, arming, and equipping troops for the suppression of the rebellion of 1861. troops in That claim, the Secretary certified, involved controverted questions of law, and 1861 and exceeded three thousand dollars in amount. The communication accompanying est there- the papers stated that the case was transmitted to the Court of Claims under and by authority of section 1063 of the Revised Statutes, to be there proceeded in according to law. for inter on. Claim an Act of 1861. In further prosecution of this claim, the State promptly filed its petition in the court below and asked judgment against the United States for the sum of $131,188.02 with interest from the first day of July, 1862, together with such other relief as would be in conformity with law. This claim was based on the act of Congress of July 27, 1861, c. 21, providing based on that the Secretary of the Treasury be, and he is hereby directed, out of any money in the Treasury not otherwise appropriated, to pay to the Governor of any State, or to his duly authorized agents, the costs, charges, and expenses properly incurred by such State for enrolling, subsisting, clothing, supplying, arming, equipping, paying, and transporting its troops employed in aiding to suppress the present insurrection against the United States, to be settled upon proper vouchers to be filed and passed upon by the proper accounting officers of the Treasury'. 12 Stat. 276. By a joint resolution of Congress, approved March 8, 1862, it was declared that the above act should be construed' to apply to expenses incurred as well after as before the date of the approval thereof'. 12 Stat. 615.1 Resisting the temptation to be drawn into an account of the origin and nature of the Civil War, in connexion with which this claim arose, it will conduce to its correct understanding to note in passing that the southern States of the Union, some ten in number, attempted to secede in law as they assuredly did in fact, forming a Union of their own called the Confederate States of America, because of the belief on their part that their local interests—and in this particular instance, the system of slavery-would be interfered with and the system of slavery abolished by amendment to the Constitution when the States of the Union opposed to slavery had so increased in number as to form the three-fourths majority required for its amendment, and in the belief that they could legally withdraw from this more perfect Union which Mr. Chief Justice Chase happily declared, in the case of State of Texas v. White (7 Wallace, 700, 725), decided in 1868, to be an indestructible union, composed of indestructible States'. Attempts had been made to compromise the slavery question and to restrict |