66

which was, by the operation of this act, , state except to meet casual deficits in the appropriated and transferred from the state revenue, to redeem a previous liability of of Virginia to the state of West Virginia, the state, to suppress insurrection, repel and which was subsequently received and invasion, or defend the state in time of enjoyed by the state of West Virginia, con- war.' sisted of a number of items, and the value "And by 7 of article 8 it was provided: of it amounted, in the aggregate, to several “67. The legislature may, at any time, millions of dollars, the exact amount your direct a sale of the stocks owned by the oratrix is unable at this time more definite state, in banks and other corporations, but ly to ascertain and state. That of the bank the proceeds of such sale shall be applied to stocks alone which were transferred under the liquidation of the public debt, and herethe operation of this act, the state of West after the state shall not become a stockVirginia realized and received into her holder in any bank.' treasury from the sale thereof about “And by § 8 of article 8 it was provided: $600,000; and that no part of the property ‘8. An equitable proportion of the pubso received by West Virginia had been ob- lic debt of the commonwealth of Virginia tained by Virginia since April, 1861. prior to the 1st day of January, in the year

"9. And by a further act of the general 1861, shall be assumed by this state, and assembly of the restored state of Virginia, the legislature shall ascertain the same as passed on the next day, February 4th, 1863, soon as may be practicable and provide for it was enacted:

the liquidation thereof by a sinking fund “'1. That the sum of $150,000 be, and is sufficient to pay the accruing interest and hereby, appropriated to the state of West redeem the principal within

principal within thirty-four Virginia out of moneys not otherwise ap- years.' propriated, when the same shall have been “At the time the Constitution containing formed, organized, and admitted as one of these provisions was adopted, West Virginia the states of the United States.

did not owe, and could not have owed, any “62. That there shall be, and hereby is, 'public debt' or 'previous liability,' except appropriated to the said state of West Vir- for her just, contributive proportion of the ginia when the same shall become one of public debt of the original state of Virginia, the United States, all balances, not other and for the money and property of the origwise appropriated, that may remain in the inal state which had been transferred to treasury, and all moneys not otherwise ap- and received by her under the acts of the propriated, that may come into the treas- general assembly of the restored state of ury up to the time when the said state of Virginia, above set forth. By the proviWest Virginia shall become one of the sions of § 8 of article 8, above cited, she United States: provided, however, that expressly assumed her equitable proportion when the said state of West Virginia shall of the debt of the original state as it exbecome one of the United States, it shall isted prior to the 1st day of January, 1861. be the duty of the auditor of this state By § 5 of the same article 8, above set to make a statement of all the moneys forth, her Constitution forbade the creation that, up to that time, have been paid of any debt 'except to meet casual deficits into the treasury from counties located in the revenue, to redeem a previous liabilioustide of the boundaries of the said ty of the state,' etc., and there was not and state of West Virginia, and also of all could not have been any such 'previous moneys that, up to the same time, have liability, except her portion of the debt of been expended in such counties, and the un. the original state, and her liability for the expended surplus of all such moneys shall money and property of the original state remain in the treasury and continue to be which had been transferred to and received the property of this state.'

by her under the acts of the general assem"And this last named sum of $150,000, bly of the restored state. And 7 of the together with other sums belonging to the same article of her Constitution, above state of Virginia, were turned over to and cited, authorized a sale of the stocks owned received or collected by the new state of by the state, in banks and other corporaWest Virginia after its formation as afore- tions, the proceeds to be applied to the said.

liquidation of the public debt; and she had “10. The Constitution of the State of no such stocks except those acquired, as West Virginia, which became operative and above stated, from the original state. This was in force when she was admitted into section of her Constitution also expressly the Union, contained the following provi- required the proceeds of such sale to be sions:

applied to her public debt, which public debt "By § 5 of article 8 of said Constitution could only have been her proportion of that it was provided :

of the original state of Virginia, and her “«5. No debt shall be contracted by this liability for the money and property of the original state which had been transferred copies of each of the acts of her general to her.

assembly herein mentioned as exhibits to “11. After the year 1865, and prior to this bill, and to be read as part thereof. the year 1872, attempts were made at dif. “13. As farther indicating the great burferent times by the public authorities of den which your oratrix, not withstanding both the commonwealth of Virginia and the the disaster and loss above referred to, las state of West Virginia, respectively, to as- assumed and met on account of the common . certain their contributive proportions of the debt of the undivided state, she shows your common liability resting upon them for the honors that, since January 1st, 1861, she public debt of Virginia, contracted prior to has actually paid off, retired, and disJanuary 1st, 1861; but all such attempts charged, or assumed and given her new outproved ineffectual and vain, and no account standing obligations for, the aggregate sum ing or settlement of any kind was ever had of over $71,000,000, as will more particubetween the two states in regard to this larly appear from a statement thereof filed debt.

as an exhibit herewith and hereinafter re“12. The efforts looking to a settlement ferred to as exhibit number 7. by the concurrent action of the two states "It is proper in this connection to cal} having proved abortive, and your oratrix attention to the fact that, while your orabeing anxious to adjust the portion of the trix has made this large contribution tocommon debt which it was right that she ward the settlement of the common debt, should assume and pay, upon terms just West Virginia has not paid one dollar thereand equitable alike to the public creditors of; and although, in the early years of her and to West Virginia, made several efforts history, she repeatedly conceded that there to effect such a settlement.

was some portion of that debt which should "The first of these was made by the gen. cquitably be borne by her, her properly eral assembly which was chosen at the close constituted authorities have for a number of the period of destruction and recon. of years refused to recognize that any liastruction, which, following closely upon the bility whatever rested upon her on that acperiod of disastrous war, had inflicted upon count, and have declined even to enter into her people injuries and losses, the harmful an accounting or to treat with your oratrix effects of which were then by no means in reference thereto. realized.

"It would seem from the above state“The purpose of the representatives of ment that Virginia has already done as the commonwealth, then just emerging from much under all the circumstances as she conditions which had impoverished her could be fairly expected to do towards paypeople and paralyzed their productive en-ing off the common public debt of the old ergies, to assume and pay to the utmost state. Such was the view and purpose of every dollar which her most exacting cred the general assembly in the several acts itor could demand of her, was expressed in above cited. the act of her general assembly, approved "A question may be raised as to whether March 30, 1871.

such was the effect of the language used "By the terms of settlement embodied in in the act of March 30, 1871, with respect this act, your oratrix undertook to give her to the certificates issued thereunder; but obligations bearing 6 per cent interest for the great mass of the creditors entitled to two thirds of the principal, and for two whatever may be due upon the unfunded thirds of the past-due interest, and also for obligations of the undivided state have in two thirds of the interest on that accrued effect agreed, as will be hereinafter shown, interest, which accrued interest, to the ex- to waive any such question, and to accept tent of nearly $8,000,000, had been funded the adjudication of this court in this cause after the war in new bonds of Virginia, against West Virginia in full discharge of thus capitalizing at 6 per cent not only the all their claims, thus giving that effect interest, but the interest upon that interest. to the act of March 30, 1871, which it was

, "It was soon apparent that Virginia had the purpose of your oratrix that it should by this measure assumed a heavier burden have. than she was able to bear, and so other “14. By each of the acts for the settleplans for the settlement of the state debt ment of her debt, above recited, it was prowere attempted by the acts of the general | vided that the bonds of undivided Virginia, assembly of the commonwealth approved so far as not founded in the new obligations March 28, 1879, and February 14, 1882, un given by your oratrix, should be surrended til at length a final and satisfactory settle to and held by your oratrix, who, either ment of the portion of the debt of the orig. by the express terms of the settlement proinal state which Virginia should assume and vided for by said acts, or as a just and pay was definitely concluded by the act of equitable consequence therefrom, received February 20, 1892. Your oratrix will file and holds said original bonds so far as un

funded, in trust for the creditor who de 16 per cent per annum, the then legal rate posited the same with her, or his assigns; in both states. and certificates to this effect were given by "For all of these obligations taken up your oratrix to each creditor whose old and payments made on account of the comVirginia bond was so surrendered to her. mon debt, your oratrix has, in her own

“Having, as an essential part of the con right, a just claim against West Virginia tract for the adjustment of the common for contribution to the extent of West Virdebt of the original state, entered into this ginia's equitable liability therefor. fiduciary relation in reference to these "17. In addition to the above bonds bonds, it became her obligation of duty to there were outstanding on the 1st day of the creditors who had confided their se January, 1861, certain obligations of the curities to her keeping, as well as to her state of Virginia as guarantor upon some own people, whose credit and fair name re of the securities issued by internal improvequired that these obligations of the old ment companies, which your oratrix was state should be fairly and honorably ad called upon to provide for and settle. They justed, to do all in her power to bring were not comparatively of very large about a determination of West Virginia's amount, however, and the questions injust liability in respect thereto, and, if volved in connection therewith can be statpossible, the recognition and settlement of ed and settled in the account hereinafter the same by that state.

prayed for to be taken between the two "Only after exhausting every means of states; and in such accounts your oratrix amicable negotiation, and having her over- will also ask to have included all such items tures to that end repeatedly refused, and of debit against the state of West Virginia as a last resort, has your oratrix been con- on account of the property and moneys of strained at length reluctantly to apply to the original state which were received or this, the only tribunal which can afford re-appropriated by West Virginia which may lief, for an adjudication and determination not have been specifically or accurately of this question, of such vast importance to stated herein. These items of accounting your oratrix and to all of her people. between the two states are so numerous and

"15. All of the bonds and obligations and varied and extend throughout a period of other evidences of the indebtedness of the so many years' duration that it is impossi. original state of Virginia outstanding and ble, from the nature of the case, to state contracted on January 1, 1861, as stated all of them in this bill; and the account in paragraph 1, of this bill, except a com- between the two states can only be taken paratively insignificant sum, not amount- and settled, and the balance due your oraing to 1 per cent of the aggregate of those trix thereon ascertained, under the superliabilities, have been taken up and are now vision of a court of equity. actually held by your oratrix, and she has "18. Your oratrix charges that the liathe right to call upon West Virginia for a bility of the state of West Virginia, for a settlement with respect thereto. They are just and equitable proportion of the public too numerous and involve too great a num- debt of Virginia, as of the time when the ber of transactions running through many state of West Virginia was created, rests

, years, for it to be practicable to exhibit upon the following, among many grounds them here in detail, but the original bonds which might be indicated here: and other evidences of indebtedness so paid "First. The area of the territory now off or retired and now held by your oratrix known as the state of West Virginia formed will, when it shall be proper to do so, be about one third of the territory of the exhibited to the master, who shall take the commonwealth of Virginia when this pubaccounts hereinafter prayed for.

lic debt was created, and its population in"16. Of the evidences of indefiniteness cluded about one third of that of the orig. representing principal and interest of the inal state at the time of its dismemberment. liabilities of Virginia contracted before her. And the state of West Virginia did, by the dismemberment, those so paid off or retired acquisition and appropriation of such terby your oratrix and now held by her in her therewith liability for a just and equitable

ritory, with the population thereof, assume own right, exclusive of the amounts rep. proportion of the public debt created prior resented by the certificates issued under the to the partition of such territory. funding acts aforesaid, amount, in the ag.

“Second. The liability of West Virginia gregate, including the interest to be fairly for a just proportion of the public debt of computed thereon to this date, to a very the commonwealth of Virginia, as it existed large sum, considerably in

of

prior to the creation and erection of the $25,000,000, by far the greater part of it state of West Virginia, forms part of her being now, of course, on account of the in- very political existence, and is an essenterest computed thereon, at the rate of 'tial constituent of her fundamental law as shown in the said ordinance adopted at / wealth, made to the authorities of West Wheeling on the 20th day of August, 1861, Virginia for the purpose of bringing about in which the method of ascertaining her a friendly adjustment, having been declined, liability on account of said debt is pre- the general assembly of Virginia passed scribed. And this liability is imbedded in the act approved March 6, 1900, entitled the Constitution under which she was ad. 'An Act to Provide for the Settlement with mitted as a state into the Federal Union, West Virginia of the Proportion of the Pub. and was one of the conditions under which lic Debt of the Original State of Virginia she was created a state and admitted into Proper to be Borne by West Virginia, and the Union.

for the Protection of the Commonwealth of “Third. The state of West Virginia has Virginia in the Premises,' the purpose of further, by the repeated enactments and which act is sufficiently set forth in its ti. joint resolution of her legislature, recog- tle, and a copy of the act will also be herenized her liability for a just proportion of inafter shown as one of the exhibits herethis debt.

with filed. "Fourth. The state of West Virginia .

“20. The commission, acting under said has, since her creation as a state, received last-mentioned act, made most earnest from the state of Virginia real and personal efforts to bring about an amicable adjustproperty, amounting in value to many mill. ment of the matters hereinbefore set forth ions of dollars, and held and enjoyed the with West Virginia, but all of their efforts same, but upon expressed condition that she in that behalf proved ineffectual and unashould duly account for the same in a set-vailing. An application to this honorable tlement thereafter to be had between her court being thus left as the only alternative and the commonwealth of Virginia. for Virginia, this suit has been instituted

"Fifth. While the transfer of this prop- at the request and direction of the said erty, real and personal, and also of certain commission, and in strict conformity with moneys of the commonwealth of Virginia, the provisions of the said act of March 6, purport to have been made to the state of 1900, all of which will be more fully and West Virginia by the act of the restored completely shown by the report of the said government of Virginia, there were in commission dated January 6, 1906, made to fact represented in said ‘restored govern- the general assembly of Virginia, now in ment and in the legislature thereof no session, a copy of which report and the doc

' other people and no other territory than uments accompanying the same, and rethat which then, as now, constitute the ferred to therein, will be exhibited as a part state of West Virginia.

of this bill.” “19. The general assembly of Virginia, 21. Enumerates exhibits attached to the being anxious to effect a settlement of the bill and prayed to be regarded as part portion of the common debt of the undivid- thereof. ed state which remained unadjusted, and, 22. The bill prayed; "Forasmuch, thereif possible, to bring this about with the fore, as your oratrix is remediless save in friendly co-operation and concurrence of this form and forum, and to the end that West Virginia, adopted: ‘A joint resolution the state of West Virginia may be duly to provide for adjusting with the state of served, through her governor and attorney West Virginia, the proportion of the public general, with a copy of this bill, your oradebt of the original state of Virginia proper trix prays that the said state of West Vir. to be borne by the state of West Virginia, ginia may be made a party defendant to and for the application of whatever may be this bill, and required to answer the same, received from the state of West Virginia to that all proper accounts may be taken to the payment of those found to be entitled determine and ascertain the balance due to the same,' approved March 6, 1894. A from the state of West Virginia to your copy of this resolution will be hereinafter oratrix, in her own right and as trustee as shown as an exhibit to this bill, to be read aforesaid; that the principles upon which as a part thereof.

such accounting shall be had may be ascer"Under this resolution a commission of tained and declared, and a true and proper seven members was appointed for the pur- settlement made of the matters and things pose of carrying into effect the objects ex- above recited and set forth; that such acpressed therein.

counting be had and settlement made, under “The efforts made by this commission, the supervision and direction of this court acting under the above resolution, to bring by such auditor or master as may by the about a settlement with West Virginia, court be selected and empowered to that having proved ineffectual, and the overture end, and that proper and full reports of which the commission, with the active co- such accounting and settlement may be operation of the Honorable Charles T. made to this court; that the state of West OʻFerral, the then governor of the common- 'Virginia may be required to produce before such auditor or master, so to be appointed, suit in the name of the commonwealth of all such official entries, documents, reports, Virginia in her own right, but only as and proceedings as may be among her pub- trustee for the use and benefit of the own. lic records or official files and may tend to ers of certain certificates mentioned in the show the facts and the true and actual act of March 6, 1900, which is referred to state of accounts growing out of the mat- and made part of said bill. ters and things above recited and set forth, Sixth. That the said bill does not suffi. in order to a full and correct settlement and ciently and definitely set forth the claims adjustment of the accounts between the two and demands relied upon, but the allegastates; that this court will adjudicate and tions thereof are so indefinite and uncerdetermine the amount due to your oratris tain that no proper answer can be made by the state of West Virginia in the prem- thereto. ises; and that all such other and further and "Seventh. That the allegations in the general relief be granted unto your oratrix said bill are not sufficient to entitle the in the premises as the nature of her case plaintiff therein, either in her own right may require or to equity may seem meet." or as trustee, to an account or to a discov

Attached to the bill were the numerous ery from this defendant. exhibits referred to.

"Eighth. That the said bill does not conThe state of West Virginia demurred and tain any prayer for a judgment or decree assigned special causes as follows:

or any other final relief against this de"First. That it appears by said bill that fendant." there is a misjoinder of parties plaintiff and Hearing on the demurrer was had March a misjoinder of causes of action. The said 11, 12, 1907. bill is brought by the commonwealth of Virginia to recover debts alleged to be due Messrs. William A. Anderson and Holmes to her in her own right from the defendant Conrad for complainant. for property and money alleged to have Messrs. John G. Carlisle, Charles E. Hogg, been transferred and delivered to the de- c. W. May, and Mollohan, McClintic, & fendant under certain acts of the legislature Mathews for defendant. passed in 1863, and also, as trustee for the owners of certain certificates mentioned

Mr. Chief Justice Fuller delivered the and described in said bill, to have an ac opinion of the court: counting to ascertain and declare the

The state of West Virginia was admitted amount claimed to be due from the defend into the Union June 20, 1863, under the ant as her just proportion of the public proclamation of the President of the Unitdebt of the plaintiff prior to the 1st day of ed States of April 20, 1863 [13 Stat. at January, 1861.

L. 731), in pursuance of the act of Con“Second. That this court has no juris-gress approved December 31, 1862 [12 Stat. diction of either the parties to or the sub at L. 633, chap. 6], upon the terms and ject-matter of this action, because it ap- conditions prescribed

prescribed by the commonpears by the said bill that the matters wealth of Virginia in ordinances adopttherein set forth do not constitute, within ed in convention and in acts passed by the the meaning of the Constitution of the general 'assembly of the restored governUnited States, such a controversy or such ment of the commonwealth, giving her concontroversies, between the commonwealth sent to the formation of a new state out of Virginia and the state of West Virginia of her territory, with a constitution adoptas can be heard and determined in this ed for the new state by the people thereof. court, and this court has no power to ren- The 9th section of the ordinance adopted der or enforce any final judgment or decree by the people of the restored state of Virthereon.

ginia in convention assembled in the city “Third. That it appears by said bill of Wheeling, Virginia, on August 20, 1861, that the plaintiff herein sues as trustee for entitled, “An ordinance to Provide for the the benefit of a number of individuals who Formation of a New State out of a Porare the alleged owners of certain certificates tion of the Territory of This State," proin the said bill set forth and described. vided as follows: "Fourth. That the said' bill does not

"9. The new state shall take upon itself state facts sufficient to entitle the common. a just proportion of the public debt of the wealth of Virginia to the relief prayed for, commonwealth of Virginia, prior to the 1st or to any relief, either in her own right or day of January, 1861, to be ascertained as trustee for the owners of the certificates by charging to it all state expenditures therein set forth and described.

within the limits theerof, and a just pro"Fifth. That it does not appear by said portion of the ordinary expenses of the bill that the attorney general has ever been state government, since any part of said authorized to institute and prosecute this' debt was contracted; and deducting there

a