ion that a separable controversy is present- remove the case into the circuit court of the ed, within its jurisdiction. Dismissed. United States for the southern district of

New York, which set forth in substance the Statement by Mr. Chief Justice Fuller: foregoing matters, and further averred:

James Pollitz, a citizen of the state of “That your petitioner disputes the claim New York, brought suit in the supreme against it as set forth by the plaintiff in court of the state of New York for the his complaint, and denies that the plaintiff county of New York against the Wabash is entitled to the judgment and relief prayed Railroad Company, a consolidated railroad for against this petitioner or to any judg. corporation existing under the laws of the ment or relief against it; and this petitionstates of Ohio, Michigan, Illinois, and Mis er alleges that the fundamental and prisouri, and a citizen of the state of Ohio; and mary, controversy, as set forth in said comsundry other defendants, chiefly citizens and plaint, is whether or not the plan for the residents of the state of New York, being exchange of the debenture mortgage bonds individual directors of the railroad com- by this petitioner, the authorization and pany; the trust company, registrar of the creation by it of the new securities in the stock of the railroad company; a commit- said complaint set forth, and the issue of the tee representing debenture holders; mort. same by it for the purpose of carrying said gage trustees, etc. The complaint alleged in plan into effect, is, as alleged in said comsubstance that the railroad company, in plaint, illegal, unlawful, void, and prohibit1906, entered into certain negotiations for ed by the charter of this petitioner and the the retirement of the debenture mortgage laws under which it is incorporated; and bonds of the company through the issue of whether said new securities are, as alleged other securities, both bonds and stocks, and in said complaint, invalid and void; and that the plan to accomplish that end was that such controversy is a separable and subsequently authorized and approved by distinct controversy between the plaintiff the stockholders of the company and deben- and this petitioner. ture mortgage bondholders, at a meeting at “That a complete determination of said Toledo, October 22, 1906, at which the issue controversy can be had without the presof certain new bonds and preferred and com-ence of any of the defendants in this action mon stock of the company and the exchange other than this petitioner; and that all of of certain new bonds, preferred and common said other defendants are neither indispenstock, for the company's debenture mort- sable nor necessary parties to the complete gage bonds, was authorized and approved. determination of said controversy. The complaint alleged that the plan of ex- “That the foregoing controversy, which change was unlawful, unauthorized, and con- is solely between the plaintiff and the petrary to the laws of the states in which the titioner, must be determined before any othcompany was organized, and was unjust, er controversy alleged in the complaint can inequitable, and injurious to complainant, be considered and determined; and that said who claimed to be the owner of one thou controversy between the plaintiff and this sand shares of the common capital stock of petitioner, as above set forth, is separate the railroad company. It was also alleged and distinct from any other or further conthat 90 per cent of the debenture holders troversy. voted in favor of the exchange, and that “That said fundamental and primary conthe plan had been carried out as to more troversy herein between the plaintiff and than nine tenths of the debenture bonds, and this petitioner is a controversy wholly benew bonds and stocks to the requisite tween citizens of different states,-to wit: amount had been issued. And it was prayed Between the plaintiff, a citizen of the state that the plan "be decreed and adjudged to of New York, and this petitioner, a citizen be ultra vires, and that all said bonds and of the state of Ohio." the preferred and common stock, used and The cause was removed, and Pollitz made issued and applied by the said Wabash Rail- a motion to remand, which was denied by road Company for the purpose and plan of the circuit court, Lacombe, J., presiding. said scheme, be decreed and adjudged of no Pollitz thereupon applied to this court effect.” The complaint prayed in the alter- on March 18 for leave to file a petition for native that if the court should decree that a writ of mandamus directing the cause to Pollitz was not entitled to the main relief be remanded to the state court. Leave to he had asked, then that he might have an file was granted March 25, and a rule was. accounting by the defendant officers and di- entered thereon returnable April 8, to which rectors of the railroad company, etc., in re- return was duly made to the effect that the spect of the new bonds and common and order denying the motion of Pollitz to preferred stock which had been issued under mand the cause had been made and entered the plan of exchange.

in the exercise of the jurisdiction and juThe railroad company filed its petition to l dicial discretion conferred upon the circuit.

judge by law, and for the reasons expressed | 386, 13 Sup. Ct. Rep. 536; Ex parte Wisner, in his opinion filed with the order. The 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. case was heard on the return to the rule. Rep. 150.

"In Re Hohorst, supra, the bill was filed Mr. Roger Foster for petitioner.

in the circuit court of the United States Messrs. Rush Taggart and Lawrence Greer for the southern district of New York for respondents.

against the corporation and certain other

defendants, and was dismissed against Mr. Chief Justice Fuller delivered the the corporation for want of jurisdiction. opinion of the court:

From that order complainant took an The suit was commenced in the state appeal to this court, which was dismissed court by a citizen and resident of the city, for

want
of jurisdiction because

because the county, and state of New York, against a order, not disposing of the case as to all the corporation, a citizen of the state of Ohio, defendants, was not a final decree from and other defendants, many of whom were which an appeal would lie. 148 U. S. 262, residents and citizens of the state of New 37 L. ed. 443, 13 Sup. Ct. Rep. 590. ThereYork, the value of the matter in dispute, upon an application was made to this court exclusive of interest and costs, exceeding for leave to file a petition for a writ of manthe jurisdictional sum.

damus to the judge of the circuit court to The defendant the Wabash Railroad Com- take jurisdiction and to proceed against the pany, a citizen of Ohio, filed its petition and company in the suit. Leave was granted bond in proper form for the removal of the and a rule to show cause entered thereon, suit into the United States circuit court for upon the return to which the writ of manthe southern district of New York, on the damus was awarded.” Re Atlantic City R. ground of separable controversy so far as Co. 164 U. S. 633, 41 L. ed. 579, 17 Sup. Ct. it was concerned, and it was removed ac- Rep. 208. cordingly. A motion to remand was made

In Ex parte Wisner, Wisner, a citizen of and denied by the circuit court, which held the state of Michigan, commenced an action that the controversy was separable, and that at law in the circuit court for the city of the other defendants were not indispensa- St. Louis, state of Missouri, against Beardsble or necessary parties to the complete de ley, a citizen of the state of Louisiana. termination of that separable controversy. After service of summons on Beardsley, he

The issue on the motion to remand was filed his petition to remove the action from whether such determination could be had the state court into the circuit court of the without the presence of defendants other United States for the eastern district of than the Wabash Railroad Company, and Missouri, on the ground of diversity of citithis was judicially determined by the circuit zenship, with the proper bond, and an order court, to which the decision was by law of removal was made by the state court, committed.

and the transcript of record was filed in the The application to this court is for the circuit court. Wisner (who had had no issue of the writ of mandamus directing the choice but to sue in the state court) at circuit court to reverse its decision, although once moved to remand the case, on the in its nature a judicial act, and within the ground that the suit did not raise a conscope of its jurisdiction and discretion. troversy within the jurisdiction of the cir

But mandamus cannot be issued to com- cuit court, and that, as it appeared on the pel the court below to decide a matter be- face of the record that plaintiff was a citifore it in a particular way or to review its zen and resident of Michigan, and defendjudicial action had in the exercise of le- ant a citizen and resident of Louisiana, the gitimate jurisdiction, nor can the writ be case was not one within the original jurisused to perform the office of an appeal or diction of the circuit court, in accordance writ of error.

with the statute providing that where jurisWhere the court refuses to take jurisdic- diction is founded only on the fact that the tion of a case and proceed to judgment action is between citizens of different states, therein, when it is its duty to do so and suit shall be brought only in the district of there is no other remedy, mandamus will lie the residence of either the plaintiff or the unless the authority to issue it has been defendant. The motion to remand was detaken away by statute. Re Grossmayer, nied, and Wisner applied to this court for a 177 U. S. 48, 44 L. ed. 665, 20 Sup. Ct. Rep. writ of mandamus, which was subsequently 535; Re Hohorst, 150 U. S. 653, 37 L. ed. awarded. 1211, 14 Sup. Ct. Rep. 221. And so where In the present case the removal was the court assumes to exercise jurisdiction on granted and sustained on the ground that removal when, on the face of the record, there was a controversy between the removabsolutely no judisdiction has attached. ing defendant and plaintiff, which could be Virginia v. Paul, 148 U. S. 107, 37 L. ed. I fully determined as between them without the presence of the other defendants. That question will be postponed until final hearbeing so, the suit might have been brought ing. originally in the circuit court against the Pleading—in suit between states-questions railroad company as sole defendant.

open on demurrer. If the ruling of the circuit court was er

4. Consideration of the objections of roneous, as is contended, but which we do multifariousness, misjoinder of parties and

of causes of action, may properly be postnot intimate, it may be reviewed after final poned until the final hearing on a bill filed decree on appeal or error. Missouri P. R. by the commonwealth of Virginia against Co. v. Fitzgerald, 160 U. S. 556, 582, 40 L. the state of West Virginia, which seeks an ed. 536, 542, 16 Sup. Ct. Rep. 389.

adjudication of the amount due the former Rule discharged; petition dismissed. by the latter as the equitable proportion of

the public debt of the original state of Vir. ginia which was assumed by West Virginia

at the time of its creation as a state. COMMONWEALTH OF VIRGINIA V.

[No. 7, Original.] STATE OF WEST VIRGINIA.

Argued March 11, 12, 1907. Decided May

27, 1907. Supreme Court-original jurisdiction-suits

between states.

h. The original jurisdiction of the Su. ORIGINAL BILL in equity filed by the preme Court of the

Commonwealth of Virginia against the to a suit by the commonwealth of Virginia state of West Virginia, which seeks an adagainst the state of West Virginia to de- judication of the amount due the former termine the amount due to the former by state by the latter as the equitable prothe latter as the equitable proportion of the portion of the public debt of the original public debt of the original state of Virginia state of Virginia which was assumed by the which was assumed by West Virginia state of West Virginia at the time of its at the time of its creation as a state.

creation as a state. Demurrer overruled Supreme Court-original jurisdiction-suits between states.

without prejudice, and leave to answer 2. The question of the liability of the given. state of West Virginia for its equitable proportion of the public debt of the common- Statement by Mr. Chief Justice Fuller: wealth of Virginia was not so submitted This is a bill filed, on leave, February 26, to the West Virginia legislature as to de- 1906, by the commonwealth of Virginia feat the original jurisdiction of the United against the state of West Virginia. States of a suit between the states by the

The bill averred thatprovision of W. Va. Const. art. 8, § 8, that

“On the 1st day of January, 1861, coman equitable proportion of such public debt shall be assumed by the state, and the legis- plainant was indebted in about the sum of lature "shall ascertain the same as soon as $33,000,000 upon obligations and contracts may be practicable, and provide for the made in connection with the construction of liquidation thereof,” since such provision, works of internal improvement throughout when read in pari materia with the Virginia her then territory. By far the greater part ordinance of August 20, 1861, that the new of this indebtedness was shown by her state shall take upon itself a just propor- bonds and other evidences of debt, given tion of the public debt, to be ascertained for the large sums of money which she from as therein provided, must be regarded as time to time had borrowed and used for the meaning only that the legislature should as: above purpose; but a portion of her liabilcertain, as soon as practicable, the result of the pursuit of the method prescribed, and ities, though arising under contracts made provide for the liquidation of the amount before that date, had not then been covso ascertained.

ered by bonds issued for their payment. Pleading-in suit between states-questions

"In addition to the above liability to the open on demurrer.

general public, there was a large indebted3. The question whether the common- ness evidenced by her bonds and other liawealth of Virginia has been released from bilities held by and due to the commissionall liability on account of the public debt ers of the sinking fund and the literary evidenced by bonds of the state outstanding fund of the state, as created under her laws, on January 1, 1861, will not be passed upon amounting, the former, to $1,462,993.00, and on a demurrer to a bill filed by that state the latter, to $1,543,669.05, as of the same against the state of West Virginia, which

date. seeks an adjudication of the amount due the former by the latter as the equitable

"The official reports and records showproportion of the public debt of the original ing the exact character and amounts of state of Virginia which was assumed by the public debt thus contracted and how West Virginia at the time of its creation the same was created are referred to, and

I as a state, but the consideration of such' will be produced upon a hearing of the case. “(2) That portion of the territory | creased by renewals and new loans until embraced in what constitutes the present it reached the amount above stated in 1861. territorial limits of Virginia was, prior to "(3) The commonwealth of Virginia was that date, devoted mainly to agriculture, induced to enter upon the construction of and to some extent to grazing and manu- this general system of internal improvefacturing, which afforded its chief sources ment in a very large measure for the purof revenue, while that portion included in pose of developing the aforesaid resources what now constitutes the state of West of the western portion of the state, now Virginia had vast potentialities of wealth constituting the state of West Virginia, and revenue in the undeveloped stores of thereby ameliorating the condition of her minerals and timber, which had been known citizens residing therein; and it was with for many years prior to the date named, this view that she took upon herself the and their prospective values, if made access- burden of the public debt for which her ible to the markets of the country, were bonds were issued, without which debt such understood to be well nigh beyond computa- improvements could not have been undertion. It was to hasten and facilitate the taken. In corroboration of this view it will development of these sources of wealth and appear from an inspection of the legislarevenue by the construction of graded roads, tive records of the state, where the vote bridges, canals, and railways, extending carrying the appropriations for such pubthrough the state from tidewater towards lic improvements was recorded, that in nearthe Ohio river, that the commonwealth of ly every instance a majority of those memVirginia, in the first quarter of the nine-bers of the house and senate of the original teenth century, entered upon a system of state, who then represented the counties public internal improvements which it was now composing West Virginia, voted for contemplated should include the entire ter- such appropriations. Indeed, it appears ritory of the state, and embraced in its from those records that a great majority design the construction of public works of the acts of the legislature of Virginia adapted, not to the needs of any one por- under which said indebtedness was created tion of the state alone, but of the entire would have failed of their passage had the state, as a unit of interest. The larger representatives from the counties embraced part of these works were constructed east in what is now West Virginia opposed their of the Appalachian range, as leading up to enactment, and that a very large proporthe undeveloped territory west thereof, tion of said indebtedness was actually conbut a very considerable portion of them tracted over the votes of a majority of the were, at an expense of several millions of representatives from the counties and citdollars, constructed west of said range, ies embraced in the limits of the present within the territory now included in the state of Virginia. This will be found to state of West Virginia; and the completion be true, not only in the legislature for one of some of the main lines of improvement single session, but in the legislatures for beyond the said range and through to the many successive years, thus showing it to Ohio river, since the 1st day of January, have been .a fixed policy of the people in 1861, has increased to a very great and ma- that portion of the state now constituting terial extent the values of real estate, in- West Virginia to participate in, support, cluding coal and timber, in the said terri- and carry out this general plan of internal tory now included in West Virginia, thus improvements in the state. carrying into effect the original scheme of “4. The development of this system of improvement, which could not have been public improvements thus entered upon done had not the lines east of said range was, from its character and extent, necesbeen first constructed; and your oratrix sarily progressive, and the same extended believes and avers that the property values with the general growth and increasing within the limits of West Virginia have needs of the state, and was incomplete, as been enormously enhanced in a large meas- above stated, in 1861, though a very conure by reason of these improvements. The siderable portion of such improvements had, money appropriated to the payment of the prior to that time, been constructed as annually accruing interest on the said debt, above stated, in the territory now constiprior to January 1, 1861, and to the forma- tuting West Virginia, in order to meet the tion of the sinking fund for the ultimate needs of the people of that portion of the redemption thereof, was derived from taxes state for their local purposes. As early as imposed upon the property subject to tax- the year 1816 a board of public works was ation throughout the entire state. The created by law for the state, the members first of this indebtedness to be contracted of which were elected by the voters of the was a small amount borrowed by the state state at large, and this board had in charge in the year 1820, and the debt was there the construction and supervision of all the after from time to time continued and in. I works of public improvement in this state. The annual reports of this board will be re- | tion of slaves therein; and it was provided ferred to for information as to the charac-by this act of Congress that whenever the ter, extent, cost, and location of the public President of the United States should issue works and internal improvements construct- his proclamation stating the fact that such ed in the state prior to January 1st, 1861. change had been made and ratified, thereThe amounts expended upon the construc- upon the act admitting the new state into tion of these works in what is now West the Union should take effect sixty days Virginia can only be accurately ascertained after the date of such proclamation. Such by an examination of the numerous entries proclamation declaring these conditions to in the records of this board extending have been complied with was duly made by through a number of years and showing President Lincoln on April 20th, 1863, and such expenditures as made from time to West Virginia, in conformity therewith and time.

by the operation of said act of Congress, "5. On the 17th of April, 1861, the people was admitted into the Union as a state on of Virginia, in general convention assem- the 20th day of June, 1863; and thereupon bled, adopted an ordinance by which it was the state of West Virginia became fully intended to withdraw Virginia from the organized and each of its departments of union of the states. From this action a government commenced operation on the considerable portion of the people of Vir- date last named. ginia dissented, and organized a separate “8. Pending the admission of the state government which was known and recog- of West Virginia to the Union the general nized by the government of the United assembly of the restored state of Virginia States as the frestored state of Virginia,' passed, February 3, 1863, the following act: and will be hereafter referred to in this “ 'That all property-real, personal, and bill as the 'restored state.'

mixed-owned by, or appertaining to, this "6. On the 20th day of August, 1861, the state, and being within the boundaries of restored state of Virginia, in convention as the proposed state of West Virginia, when sembled, in the city of Wheeling, Virginia, the same becomes one of the United States, adopted an ordinance to provide for the shall thereupon pass to, and become the formation of a new state out of the por- property of the state of West Virginia, and tion of the territory of this state,' § 9 of without any other assignment, conveyance, which ordinance was as follows, to-wit: or transfer or delivery than is herein con

“ “9. The new state shall take upon itself tained, and shall include, among other a just proportion of the public debt of the things not herein specified, all lands, buildcommonwealth of Virginia, prior to the 1st sings, roads, and other internal improveday of January, 1861, to be ascertained by ments or parts thereof, situated within said charging to it all the state expenditures boundaries, and vested in this state, or in within the limits thereof, and a just propor- the president and directors of the literary tion of the ordinary expenses of the state fund, or the board of public works thereof, government since any part of said debt was or in any person or persons for the use of contracted, and deducting therefrom the this state, to the extent of the interest and moneys paid into the treasury of the com- estate of this state therein; and shall also monwealth from the counties included with include the interest of this state, or of the in the said new state during said period. said president and directors, or of the said All private rights and interests in lands | board of public works, in any parent bank within the proposed state, derived from the or branch doing business within said boundlaws of Virginia prior to such separation, aries, and all stocks of any other company shall remain valid and secure under the or corporation, the principal office or place laws of the proposed state, and shall be de- of business whereof is located within said termined by the laws now existing in the boundaries, standing in the name of this state of Virginia.'

state, or of the said president or directors, “7. On the 31st day of December, 1862, or of the said board of public works, or of an act was passed by the 37th Congress of any person or persons, for the use of this the United States [12 Stat. at L. 633, chap. state.' 6], providing that the new state thus “ 'That if the appropriations and transformed in pursuance of the ordinances offers of property, stocks, and credits provided the Wheeling convention above referred to, for by this act take effect, the state of West should, upon certain conditions, be admitted Virginia shall duly account for the same in into the Union by the name of West Vir- the settlement hereafter to be made with ginia, with a constitution which had there. this state, provided that no such property, tofore been adopted for the new state by stocks, and credits shall have been obtained the people thereof, such conditions being since the reorganization of the state gove that a change should be made in such pro- ernment.'” posed constitution in regard to the libera- Complainant charged "that the property