Rate of interest con sidered. that it should not pay the legal rate of interest for which the bonds called, inasmuch as Virginia refunded its indebtedness upon a lower rate of interest, and that West Virginia should therefore be taxed with a rate of interest which, in view of the refunding of the debt and of the attendant circumstances, should be considered equitable. This view appealed to the court and was thus expressed by Mr. Justice Hughes on its behalf : While liability for interest exists, there is still the question as to the rate at which interest should be allowed. Virginia, it appears, has not paid upon her estimated share the rate which was reserved in the bonds. This fact, we think, raises an equity demanding recognition. In fixing West Virginia's share of the principal, we took into account the fact that Virginia, by the consent of the creditors, had reduced her own share below the amount which it would have been upon the basis we found to be correct, and we gave appropriate credit to West Virginia on account Virginia's of this difference. 220 U.S., p. 35. And it would not be proper to hold West Virginia arrange to the rate of interest specified in the bonds when Virginia as to her share has made arrangement with the creditors for a lower rate. The provision that the share of creditors West Virginia shall be an equitable proportion is the dominating principle of the award, and while Virginia as we have held is entitled to enforce the contract, in the due performance of which her honor and credit are concerned, her action with respect to her own estimated share must be taken into consideration.1 ment with to be allowed for. Retired bonds to be allowed for. After sketching the legislation of Virginia by which this portion of the indebtedness of that State was abolished, and calling attention to the fact that Virginia considered and stated in its bill that such a settlement was both final and satisfactory, Mr. Justice Hughes takes up and thus summarizes the results of the legislation by which this part of Virginia's indebtedness was finally and satisfactorily settled: In the light of this financial history, we come to the consideration of Virginia's payments. It is stated on behalf of Virginia that the amount of interest paid by her from January 1, 1861, to September 30, 1913 (the latest date to which the calculation has been made), amounted to $41,071,219.02. Taking Virginia's share of the principal at the amount assumed by her, as computed in our former decision (220 U.S., p. 35), that is $22,598,049.21 (an amount somewhat less than her true proportion of the total debt of January 1, 1861), the total interest paid as above stated would be the equivalent of simple interest upon that principal at a rate somewhat less than three and one-half per cent. But these payments on account of interest did not include bonds that had been retired, and Virginia's exhibit shows that in addition to these payments she had paid off and retired' (down to September 30, 1913) bonds amounting to $12,141,591.49; and that, further, her new bonds issued for the portion of the old debt, funded and assumed by her, and outstanding on September 30, 1913, amounted to $24,645,075.23. These items including the item of interest first mentioned make a total of $77,857,885.74. We have in this aggregate the amounts paid by Virginia on account of the old debt to the date mentioned. If from this total we deduct the amount of Virginia's assumed share of principal, as above computed ($22,598,049.21), the remainder would be $55,259,836.53; or, if all payments of interest were put on a gold basis, $53,002,130.40. If we treat this entire sum as applicable to interest-and to interest upon Virginia's assumed share alone-it would be the equivalent of simple interest upon the principal stated, from January 1, 1861, to September 30, 1913, at a rate a little less than four and one-half per cent.2 State of Virginia v. State of West Virginia (238 U.S. 202, 236–7). After calling attention to the fact that the total amount of interest paid by Virginia upon its indebtedness included interest upon interest, and that it would be inequitable to subject West Virginia to Virginia's financial method of computing and paying interest, and that, in the light of the facts recited, a fair basis of adjustment was to be found, the learned Justice continued : It will be observed that the amount of the new bonds shown by Virginia's statement to be outstanding on September 30, 1913, was slightly in excess of her assumed share of principal as computed. That is, Virginia through the successful operation of the Act of 1892 (which provided for a refunding as of July 1, 1891), taken with what had been effected under the Act of 1892, placed an amount substantially equal to her assumed share of principal upon a permanent basis of three per cent. There appears to be an exception to this in the case of certain securities, but their amount is relatively small. Virginia's creditors may have been induced to accept this adjustment, and the low rate it involved, by reason of the inclusion of unpaid interest in fixing the principal of the new bonds. But, on the other hand, the total of the principal and interest then outstanding was largely reduced in the refunding, and the rate of interest upon the new bonds under the Act of 1892 for the first ten years was made two per cent. The reduction, and the ten years' rate, may well be regarded as offsetting the advantage derived from including in the face of the new obligations whatever excess there may have been over the assumed share of Virginia as computed.1 In view of these circumstances, therefore, and, as he said, 'taking all the facts into consideration, we reach the conclusion that in fixing the equitable proportion of West Virginia, her part of the principal should be put on a three per cent. basis, as of July 1, 1891; that is, that interest should run at that rate from that time. For the preceding period, from January 1, 1861, to July 1, 1891, there is greater difficulty. In recognition of the amounts paid by Virginia upon her share, but also having in mind the payments of compound interest attribut- Interest able to her own exigency, the nearest approach to complete justice will be had by allowed allowing interest at four per cent.' 2 Under this method of adjustment, which Mr. Justice Hughes, on behalf of the court, considered as adequately recognizing and enforcing the equities of both States, West Virginia's share of the interest from January 1, 1861, to July 1, 1891, at the rate of 4 per cent., would amount to $5,143,059.18, and from July 1, 1891, to July 1, 1915, at 3 per cent., to $3,035,248.04, making a total in the matter of interest of $8,178,307.22, which, added to the principal of $4,215,622.28, found to be West Virginia's equitable portion of the indebtedness, would give a total of $12,393,929.50. This is a very matter-of-fact statement with which to end a decree of an international tribunal, for such the Supreme Court is, in a long drawn out, difficult, and vexatious controversy between two States. But the final sentences, two in number, are even more matter-of-fact and businesslike, showing how the judicial settlement of suits between States had become, as it were, a matter of course. Thus: at two rates. The decree will also provide for interest at the rate of five per cent. per annum Subseupon the amount awarded, until paid. Costs to be equally divided between the States.3 State of Virginia v. State of West Virginia (238 U.S. 202, 241–2). 2 Ibid. (238 U.S. 242). quent interest at 5 per cent. Costs to be shared Ibid. (238 U.S. 242). For the succeeding phase of this case see State of Virginia v. State of equally. West Virginia (241 U.S. 531), post, p. 512. Commis sioners' report agreed on by both parties. Decree accord ingly. 76. State of North Carolina v. State of Tennessee. In the first phase of the case of North Carolina v. Tennessee (235 U.S. 1), decided 1914, Mr. Justice McKenna, speaking for the court, gave the States in controversy forty days from the entry of the decree within which to agree upon commissioners and to present to the court for its approval a decree in accordance with its directions establishing the boundary line between the two States. Commissioners were appointed, the line drawn, and the report of the commissioners presented by counsel for complainant and concurred in by counsel for defendant. On April 3, 1916, a motion was made by counsel for North Carolina, concurred in by counsel for the defendant, to confirm the report of the Commissioners heretofore appointed by this court to ascertain, re-trace, re-mark, and re-establish the real, certain, and true boundary line between the States of North Carolina and Tennessee between certain points, mentioned in said report. . . .' The report of the commissioners, dated October 20, 1915, establishing the exact boundaries in accordance with the decree in the first case of North Carolina v. Tennessee was presented to the court, and On consideration whereof, It is now here ordered, adjudged, and decreed by this Court that the real, certain, and true boundary line between the States of North Carolina and Tennessee between said certain points is as delineated in the said report and on the map attached hereto and made a part hereof. It is further ordered, adjudged, and decreed that each party pay one-half of the costs in this case.2 77. State of Virginia v. State of West Virginia. The decree in the previous case of Virginia v. West Virginia (238 U.S. 202), decided June 14, 1915, was doubtless expected to be the last in this series of cases. Virginia It was not. On June 5, 1916, that is to say, a year thereafter, the Attorney-General for the State of Virginia submitted a motion for a writ of execution against the State of West Virginia, which was denied by the court June 12, 1916, in Virginia v. West Virginia (241 U.S. 531). moves for a writ of execution. Motion denied without prejudice. Because the case is still pending and because the question of execution, delicate and difficult, is considered by the court in the next phase of this controversy, it is inadvisable to indulge in comment. It is the part of wisdom to allow the opinion of the court, by its most accredited representative, Mr. Chief Justice White, to speak for itself: In the original cause of Commonwealth of Virginia v. State of West Virginia, on June 14, 1915, a decree was rendered in favor of Virginia and against West Virginia for the sum of $12,393,929.50 with interest thereon at the rate of five percentum from July 1st, 1915, until paid. 238 U.S. 202. Virginia now petitions for a writ of execution against West Virginia on the ground that such relief is necessary as the latter has taken no steps whatever to provide for the payment of the decree. West Virginia resists the granting of the execution on three grounds: (1) 'Because the State of West Virginia, within herself, has no power to pay the judgment in question, except through the legislative department of her government, and she should be given an opportunity to accept and abide by the decision of this court, and, in the due and ordinary course, to make provision for its satisfaction, before any steps looking to her compulsion be taken; and to issue an execution at this time would deprive her of such opportunity; because her Legislature has not met since the rendition of said judgment, and will not again meet in regular session until the second Wednesday in January, 1917, and the members of that body have not yet been chosen;' (2) because presumptively the State of West Virginia has no property subject to execution; and (3) because although the Constitution imposes upon this court the duty, and grants it full power, to consider controversies between States and therefore authority to render the decree in question, yet with the grant of jurisdiction there was conferred no authority whatever to enforce a money judgment against a State if in the exercise of jurisdiction such a judgment was entered. Without going further, we are of the opinion that the first ground furnishes adequate reason for not granting the motion at this time. The prayer for the issue of a writ of execution is therefore denied, without prejudice to the renewal of the same after the next session of the legislature of the State of West Virginia has met and had a reasonable opportunity to provide for the payment of the judgment.1 78. State of Arkansas v. State of Tennessee. of the Within a few months of the 100th anniversary of the Declaration of Independence A bounof the thirteen United States of America, to be accurate, on the 7th day of March, dary dispute. 1876, the Mississippi River suddenly changed its course to the eastward, cutting Sudden through a space of two miles, separating a small portion of territory hitherto part of the diversion Tennessee mainland and making of it an island of the Mississippi opposite the State of Arkansas. The new channel thus suddenly made became the chief channel of the sippi, 1876. river at this point and the old channel to the west dried up. The lay of the land at the time of the avulsion is thus stated by Mr. Justice Pitney in delivering the opinion of the Supreme Court in Arkansas v. Tennessee (246 U.S. 158), decided in 1918, to which the action of the river gave rise : the river. The river flowed southward past Dean's Island on the Arkansas side, made a Original bend to the westward at or about the southernmost part of this island, and then course of swept northerly and westerly around Island No. 37 (Tennessee), a lesser channel known as McKenzie Chute passing between that island and the main Tennessee shore ; the main and lesser channels met at the southwestern extremity of Island No. 37, and the river flowed thence southwesterly past Point Able, Tennessee, opposite which it turned again easterly and then northerly, forming what is known as the Devil's Elbow, and flowed thence easterly or northeasterly around Brandywine Point or Island (Arkansas), until it came within a distance of about two miles from the place where it started its northerly turn opposite Dean's Island; and at this point it turned again to the southward.2 The change of channel and the condition consequent thereupon are thus described by the same learned Justice: On March 7, 1876, the river suddenly and with great violence, within about 1 State of Virginia v. State of West Virginia (241 U.S. 531, 531-2). For a later phase of this case see State of Virginia v. State of West Virginia (246 U.S. 565), post, p. 519. 2 State of Arkansas v. State of Tennessee (246 U.S. 158, 161). New course. Summary of the treaties and thirty hours, made for itself a new channel directly across the neck opposite the apex of Dean's Island, so that the old channel around the bend of the elbow (a distance of fifteen to twenty miles) was abandoned by the current, and although it remained for a few years covered with dead water it was no longer navigable except in times of high water for small boats, and this continued only for a short time, since the old bed immediately began to fill with sand, sediment, and alluvial deposits. In the course of time it became dry land suitable for cultivation and to a considerable extent covered with timber. The new channel is called, from the year in which it originated, the 'Centennial Cut-off,' and the land that it separated from the Tennessee mainland goes by the name of 'Centennial Island'.1 In view of the fact that the treaty of 1763, by which Great Britain obtained the territory to the east of the Mississippi; the treaty of 1783, by which the United. States obtained a recognition on the part of Great Britain of its title to that territory; and the treaty of 1803, by which the United States obtained title to territory to the west of the Mississippi, have been discussed in various cases involving boundaries between States bordering upon that noble river, it is unnecessary to enter into details, and the reader may well content himself with the following statement of the historical setting of the case, as made by Mr. Justice Pitney: By the treaty of 1763 between England, France, and Spain, Art. VII (3 Jenkinson's Treaties, 177, 182), the boundary line between the British and French possessions at this place was established as a line drawn along the middle of the River statutes. Mississippi', with consequent recognition of the dominion of France over the Territory now comprising the State of Arkansas, and the dominion of Great Britain over that now comprising the State of Tennessee. By the Treaty of Peace concluded between the United States and Great Britain, September 3, 1783, 8 Stat. So, the territory comprising Tennessee passed to the United States, its westerly boundary being described (Art. II), as 'a line to be drawn along the middle of the said River Mississippi'. It formed a part of the State of North Carolina. In the year 1790, North Carolina ceded it to the United States (Act of April 2, 1790, c. 6, 1 Stat. 106). In a report made in the following year by Thomas Jefferson, then Secretary of State, and submitted to Congress by President Washington, the bounds of the ceded territory were described, the western boundary being the middle of the river Mississippi'. I American State Papers, Public Lands, p. 17. And by Act of June 1, 1796, c. 47, I Stat. 491, the whole of the territory thus ceded was made a State. By the Louisiana Purchase, under the Treaty of April 30, 1803, 8 Stat. 200, the territory comprising Arkansas was acquired by the United States from France. It was admitted into the Union as a State by the United States as a State by Act of June 15, 1836, c. 100, 5 Stat. 50, its easterly boundary being described as 'middle of the main channel of the said river '.2 If these were all the facts involved in the case, it would hardly merit separate consideration, inasmuch as it has been so repeatedly held by the Supreme Court as to be beyond the possibility of successful contention, that the boundaries between States are not changed by avulsion, and that therefore the line runs in the dry bed where before it had run in the flowing water. Counsel for the State of Arkansas admitted this principle; counsel for Tennessee did not contest it, but sought to avoid its application in the present instance by maintaining that, from the first evidence which they had of the flow of the river in 1823 to the change of the channel in 1876, the river had gradually shifted its course State of Arkansas v. State of Tennessee (246 U.S. 158, 162). |