ion that a separable controversy is presented, within its jurisdiction. Dismissed. remove the case into the circuit court of the United States for the southern district of New York, which set forth in substance the foregoing matters, and further averred: "That your petitioner disputes the claim against it as set forth by the plaintiff in his complaint, and denies that the plaintiff is entitled to the judgment and relief prayed for against this petitioner or to any judgment or relief against it; and this petitioner alleges that the fundamental and primary controversy, as set forth in said complaint, is whether or not the plan for the exchange of the debenture mortgage bonds by this petitioner, the authorization and creation by it of the new securities in the said complaint set forth, and the issue of the same by it for the purpose of carrying said plan into effect, is, as alleged in said complaint, illegal, unlawful, void, and prohibited by the charter of this petitioner and the laws under which it is incorporated; and whether said new securities are, as alleged in said complaint, invalid and void; and that such controversy is a separable and distinct controversy between the plaintiff and this petitioner. "That a complete determination of said controversy can be had without the presence of any of the defendants in this action other than this petitioner; and that all of said other defendants are neither indispensable nor necessary parties to the complete determination of said controversy. Statement by Mr. Chief Justice Fuller: James Pollitz, a citizen of the state of New York, brought suit in the supreme court of the state of New York for the county of New York against the Wabash Railroad Company, a consolidated railroad corporation existing under the laws of the states of Ohio, Michigan, Illinois, and Missouri, and a citizen of the state of Ohio; and sundry other defendants, chiefly citizens and residents of the state of New York, being individual directors of the railroad company; the trust company, registrar of the stock of the railroad company; a committee representing debenture holders; mortgage trustees, etc. The complaint alleged in substance that the railroad company, in 1906, entered into certain negotiations for the retirement of the debenture mortgage bonds of the company through the issue of other securities, both bonds and stocks, and that the plan to accomplish that end was subsequently authorized and approved by the stockholders of the company and debenture mortgage bondholders, at a meeting at Toledo, October 22, 1906, at which the issue of certain new bonds and preferred and common stock of the company and the exchange of certain new bonds, preferred and common stock, for the company's debenture mortgage bonds, was authorized and approved. The complaint alleged that the plan of exchange was unlawful, unauthorized, and contrary to the laws of the states in which the company was organized, and was unjust, inequitable, and injurious to complainant, who claimed to be the owner of one thousand shares of the common capital stock of the railroad company. It was also alleged that 90 per cent of the debenture holders voted in favor of the exchange, and that the plan had been carried out as to more than nine tenths of the debenture bonds, and new bonds and stocks to the requisite amount had been issued. And it was prayed that the plan "be decreed and adjudged to be ultra vires, and that all said bonds and the preferred and common stock, used and issued and applied by the said Wabash Rail-a road Company for the purpose and plan of 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 repreferred 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 dicial discretion conferred upon the circuit "That the foregoing controversy, whichis solely between the plaintiff and the petitioner, must be determined before any other controversy alleged in the complaint can be considered and determined; and that said controversy between the plaintiff and this petitioner, as above set forth, is separate and distinct from any other or further controversy. "That said fundamental and primary controversy herein between the plaintiff and this petitioner is a controversy wholly between citizens of different states,-to wit: Between the plaintiff, a citizen of the state of New York, and this petitioner, a citizen of the state of Ohio." The cause was removed, and Pollitz made motion to remand, which was denied by the circuit court, Lacombe, J., presiding. 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. Mr. Roger Foster for petitioner. Rep. 150. "In Re Hohorst, supra, the bill was filed in the circuit court of the United States Messrs. Rush Taggart and Lawrence Greer for the southern district of New York for respondents. Mr. Chief Justice Fuller delivered the opinion of the court: The suit was commenced in the state court by a citizen and resident of the city, county, and state of New York, against a corporation, a citizen of the state of Ohio, and other defendants, many of whom were residents and citizens of the state of New York, the value of the matter in dispute, exclusive of interest and costs, exceeding the jurisdictional sum. The defendant the Wabash Railroad Company, a citizen of Ohio, filed its petition and bond in proper form for the removal of the suit into the United States circuit court for the southern district of New York, on the ground of separable controversy so far as it was concerned, and it was removed accordingly. A motion to remand was made and denied by the circuit court, which held that the controversy was separable, and that the other defendants were not indispensable or necessary parties to the complete determination of that separable controversy. The issue on the motion to remand was whether such determination could be had without the presence of defendants other than the Wabash Railroad Company, and this was judicially determined by the circuit court, to which the decision was by law committed. The application to this court is for the issue of the writ of mandamus directing the circuit court to reverse its decision, although in its nature a judicial act, and within the scope of its jurisdiction and discretion. against the corporation and certain other In Ex parte Wisner, Wisner, a citizen of the state of Michigan, commenced an action at law in the circuit court for the city of St. Louis, state of Missouri, against Beardsley, a citizen of the state of Louisiana. After service of summons on Beardsley, he filed his petition to remove the action from the state court into the circuit court of the United States for the eastern district of Missouri, on the ground of diversity of citizenship, with the proper bond, and an order of removal was made by the state court, and the transcript of record was filed in the circuit court. Wisner (who had had no choice but to sue in the state court) at once moved to remand the case, on the ground that the suit did not raise a controversy within the jurisdiction of the cirBut 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 case and proceed to judgment therein, when it is its duty to do so and there is no other remedy, mandamus will lie unless the authority to issue it has been taken away by statute. Re Grossmayer, 177 U. S. 48; 44 L. ed. 665, 20 Sup. Ct. Rep. 535; Re Hohorst, 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221. And so where the court assumes to exercise jurisdiction on removal when, on the face of the record, absolutely no judisdiction has attached. Virginia v. Paul, 148 U. S. 107, 37 L. ed. action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. The motion to remand was denied, and Wisner applied to this court for a writ of mandamus, which was subsequently awarded. In the present case the removal was granted and sustained on the ground that there was a controversy between the removing defendant and plaintiff, which could be fully determined as between them without ing. the presence of the other defendants. That | question will be postponed until final hearbeing so, the suit might have been brought originally in the circuit court against the railroad company as sole defendant. If the ruling of the circuit court was erroneous, as is contended, but which we do roneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error. Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 582, 40 L. ed. 536, 542, 16 Sup. Ct. Rep. 389. Rule discharged; petition dismissed. COMMONWEALTH OF VIRGINIA V. STATE OF WEST VIRGINIA. Supreme Court-original jurisdiction-suits between states. Pleading-in suit between states-questions open on demurrer. 4. Consideration of the objections of multifariousness, misjoinder of parties and of causes of action, may properly be postponed until the final hearing on a bill filed by the commonwealth of Virginia against the state of West Virginia, which seeks an adjudication of the amount due the former by the latter as the equitable proportion of the public debt of the original state of Virginia which was assumed by West Virginia at the time of its creation as a state. [No. 7, Original.] Argued March 11, 12, 1907. Decided May 27, 1907. 1. The original jurisdiction of the Su-ORIGINAL BILL in equity filed by the preme Court of the United States extends Commonwealth of Virginia against the to a suit by the commonwealth of Virginia against the state of West Virginia to determine the amount due to the former by the latter as the equitable proportion of the public debt of the original state of Virginia which was assumed by West Virginia at the time of its creation as a state. Supreme Court-original jurisdiction—suits between states. 2. The question of the liability of the state of West Virginia for its equitable proportion of the public debt of the commonwealth of Virginia was not so submitted to the West Virginia legislature as to defeat the original jurisdiction of the United States of a suit between the states by the provision of W. Va. Const. art. 8, § 8, that an equitable proportion of such public debt shall be assumed by the state, and the legislature "shall ascertain the same as soon as may be practicable, and provide for the liquidation thereof," since such provision, when read in pari materia with the Virginia ordinance of August 20, 1861, that the new state shall take upon itself a just proportion of the public debt, to be ascertained as therein provided, must be regarded as meaning only that the legislature should ascertain, as soon as practicable, the result of the pursuit of the method prescribed, and provide for the liquidation of the amount so ascertained. Pleading-in suit between states-questions open on demurrer. state of West Virginia, which seeks an adjudication of the amount due the former state by the latter as the equitable proportion of the public debt of the original state of Virginia which was assumed by the state of West Virginia at the time of its without prejudice, and leave to answer given. creation as a state. Demurrer overruled Statement by Mr. Chief Justice Fuller: This is a bill filed, on leave, February 26, 1906, by the commonwealth of Virginia against the state of West Virginia. The bill averred that "On the 1st day of January, 1861, complainant was indebted in about the sum of $33,000,000 upon obligations and contracts made in connection with the construction of works of internal improvement throughout her then territory. By far the greater part of this indebtedness was shown by her bonds and other evidences of debt, given for the large sums of money which she from time to time had borrowed and used for the above purpose; but a portion of her liabilities, though arising under contracts made before that date, had not then been covered by bonds issued for their payment. "In addition to the above liability to the general public, there was a large indebtedness evidenced by her bonds and other liabilities held by and due to the commissioners of the sinking fund and the literary fund of the state, as created under her laws, amounting, the former, to $1,462,993.00, and the latter, to $1,543,669.05, as of the same date. 3. The question whether the commonwealth of Virginia has been released from all liability on account of the public debt evidenced by bonds of the state outstanding on January 1, 1861, will not be passed upon on a demurrer to a bill filed by that state against the state of West Virginia, which 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 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 public internal improvements which it was contemplated should include the entire territory of the state, and embraced in its design the construction of public works adapted, not to the needs of any one portion of the state alone, but of the entire state, as a unit of interest. The larger part of these works were constructed east of the Appalachian range, as leading up to the undeveloped territory west thereof, but a very considerable portion of them were, at an expense of several millions of dollars, constructed west of said range, within the territory now included in the state of West Virginia; and the completion of some of the main lines of improvement beyond the said range and through to the Ohio river, since the 1st day of January, 1861, has increased to a very great and material extent the values of real estate, including coal and timber, in the said territory now included in West Virginia, thus carrying into effect the original scheme of improvement, which could not have been done had not the lines east of said range been first constructed; and your oratrix believes and avers that the property values within the limits of West Virginia have been enormously enhanced in a large measure by reason of these improvements. The money appropriated to the payment of the annually accruing interest on the said debt, prior to January 1, 1861, and to the formation of the sinking fund for the ultimate redemption thereof, was derived from taxes imposed upon the property subject to taxation throughout the entire state. The first of this indebtedness to be contracted was a small amount borrowed by the state in the year 1820, and the debt was there. after from time to time continued and in state, who then represented the counties now composing West Virginia, voted for such appropriations. Indeed, it appears from those records that a great majority of the acts of the legislature of Virginia under which said indebtedness was created would have failed of their passage had the representatives from the counties embraced in what is now West Virginia opposed their enactment, and that a very large proportion of said indebtedness was actually contracted over the votes of a majority of the representatives from the counties and cities embraced in the limits of the present state of Virginia. This will be found to be true, not only in the legislature for one single session, but in the legislatures for many successive years, thus showing it to have been a fixed policy of the people in that portion of the state now constituting West Virginia to participate in, support, and carry out this general plan of internal improvements in the state. "4. The development of this system of public improvements thus entered upon was, from its character and extent, necessarily progressive, and the same extended with the general growth and. increasing needs of the state, and was incomplete, as above stated, in 1861, though a very considerable portion of such improvements had, prior to that time, been constructed as above stated, in the territory now constituting West Virginia, in order to meet the needs of the people of that portion of the state for their local purposes. As early as the year 1816 a board of public works was created by law for the state, the members of which were elected by the voters of the state at large, and this board had in charge the construction and supervision of all the 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 character, extent, cost, and location of the public works and internal improvements constructed in the state prior to January 1st, 1861. The amounts expended upon the construction of these works in what is now West Virginia can only be accurately ascertained by an examination of the numerous entries in the records of this board extending through a number of years and showing such expenditures as made from time to time. "5. On the 17th of April, 1861, the people of Virginia, in general convention assembled, adopted an ordinance by which it was intended to withdraw Virginia from the union of the states. From this action a considerable portion of the people of Virginia dissented, and organized a separate government which was known and recognized by the government of the United States as the 'restored state of Virginia,' and will be hereafter referred to in this bill as the 'restored state.' "6. On the 20th day of August, 1861, the restored state of Virginia, in convention assembled, in the city of Wheeling, Virginia, adopted an ordinance to 'provide for the formation of a new state out of the portion of the territory of this state,' § 9 of which ordinance was as follows, to-wit: by this act of Congress that whenever the President of the United States should issue his proclamation stating the fact that such change had been made and ratified, thereupon the act admitting the new state into the Union should take effect sixty days after the date of such proclamation. Such proclamation declaring these conditions to have been complied with was duly made by President Lincoln on April 20th, 1863, and West Virginia, in conformity therewith and by the operation of said act of Congress, was admitted into the Union as a state on the 20th day of June, 1863; and thereupon the state of West Virginia became fully organized and each of its departments of government commenced operation on the date last named. "8. Pending the admission of the state of West Virginia to the Union the general assembly of the restored state of Virginia passed, February 3, 1863, the following act: ""That all property-real, personal, and mixed-owned by, or appertaining to, this state, and being within the boundaries of the proposed state of West Virginia, when the same becomes one of the United States, shall thereupon pass to, and become the property of the state of West Virginia, and without any other assignment, conveyance, or transfer or delivery than is herein contained, and shall include, among other things not herein specified, all lands, build "9. The new state shall take upon itself a just proportion of the public debt of the commonwealth of Virginia, prior to the 1stings, roads, and other internal improveday of January, 1861, to be ascertained by charging to it all the state expenditures within the limits thereof, and a just proportion of the ordinary expenses of the state government since any part of said debt was contracted, and deducting therefrom the moneys paid into the treasury of the commonwealth from the counties included within the said new state during said period. All private rights and interests in lands within the proposed state, derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in the state of Virginia.' "7. On the 31st day of December, 1862, an act was passed by the 37th Congress of the United States [12 Stat. at L. 633, chap. 6], providing that the new state thus formed in pursuance of the ordinances of the Wheeling convention above referred to, should, upon certain conditions, be admitted into the Union by the name of West Virginia, with a constitution which had theretofore been adopted for the new state by the people thereof, such conditions being that a change should be made in such proposed constitution in regard to the libera ments or parts thereof, situated within said boundaries, and vested in this state, or in the president and directors of the literary fund, or the board of public works thereof, or in any person or persons for the use of this state, to the extent of the interest and estate of this state therein; and shall also include the interest of this state, or of the said president and directors, or of the said board of public works, in any parent bank or branch doing business within said boundaries, and all stocks of any other company or corporation, the principal office or place of business whereof is located within said boundaries, standing in the name of this state, or of the said president or directors, or of the said board of public works, or of any person or persons, for the use of this state.' ""That if the appropriations and transfers of property, stocks, and credits provided for by this act take effect, the state of West Virginia shall duly account for the same in the settlement hereafter to be made with this state, provided that no such property, stocks, and credits shall have been obtained since the reorganization of the state government.'' Complainant charged "that the property |
