"And by § 7 of article 8 it was provided: 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 of it amounted, in the aggregate, to several millions of dollars, the exact amount your oratrix is unable at this time more definitely to ascertain and state. That of the bank stocks alone which were transferred under the operation of this act, the state of West Virginia realized and received into her treasury from the sale thereof about $600,000; and that no part of the property so received by West Virginia had been obtained by Virginia since April, 1861. "9. And by a further act of the general assembly of the restored state of Virginia, passed on the next day, February 4th, 1863, it was enacted: ""7. The legislature may, at any time, direct a sale of the stocks owned by the state, in banks and other corporations, but the proceeds of such sale shall be applied to the liquidation of the public debt, and hereafter the state shall not become a stockholder in any bank.' "And by § 8 of article 8 it was provided: ""8. An equitable proportion of the public debt of the commonwealth of Virginia prior to the 1st day of January, in the year 1861, shall be assumed by this state, and the legislature shall ascertain the same as soon as may be practicable and provide for the liquidation thereof by a sinking fund sufficient to pay the accruing interest and redeem the principal within thirty-four "1. That the sum of $150,000 be, and is hereby, appropriated to the state of West Virginia out of moneys not otherwise ap-years.' propriated, when the same shall have been formed, organized, and admitted as one of the states of the United States. ""2. That there shall be, and hereby is, appropriated to the said state of West Virginia when the same shall become one of the United States, all balances, not otherwise appropriated, that may remain in the treasury, and all moneys not otherwise appropriated, that may come into the treasury up to the time when the said state of West Virginia shall become one of the United States: provided, however, that when the said state of West Virginia shall become one of the United States, it shall be the duty of the auditor of this state to make a statement of all the moneys that, up to that time, have been paid into the treasury from counties located oustide of the boundaries of the said state of West Virginia, and also of all moneys that, up to the same time, have been expended in such counties, and the unexpended surplus of all such moneys shall remain in the treasury and continue to be the property of this state.' "And this last named sum of $150,000, together with other sums belonging to the state of Virginia, were turned over to and received or collected by the new state of West Virginia after its formation as aforesaid. "10. The Constitution of the State of West Virginia, which became operative and was in force when she was admitted into the Union, contained the following provisions: "By § 5 of article 8 of said Constitution it was provided: ""5. No debt shall be contracted by this "At the time the Constitution containing these provisions was adopted, West Virginia did not owe, and could not have owed, any 'public debt' or 'previous liability,' except for her just, contributive proportion of the public debt of the original state of Virginia, and for the money and property of the original state which had been transferred to and received by her under the acts of the general assembly of the restored state of Virginia, above set forth. By the provisions of § 8 of article 8, above cited, she expressly assumed her equitable proportion of the debt of the original state as it existed prior to the 1st day of January, 1861. By § 5 of the same article 8, above set forth, her Constitution forbade the creation of any debt 'except to meet casual deficits in the revenue, to redeem a previous liability of the state,' etc., and there was not and could not have been any such 'previous liability,' except her portion of the debt of the original state, and her liability for the money and property of the original state which had been transferred to and received by her under the acts of the general assembly of the restored state. And § 7 of the same article of her Constitution, above cited, authorized a sale of the stocks owned by the state, in banks and other corporations, the proceeds to be applied to the liquidation of the public debt; and she had no such stocks except those acquired, as above stated, from the original state. This section of her Constitution also expressly required the proceeds of such sale to be applied to her public debt, which public debt could only have been her proportion of that of the original state of Virginia, and her 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. "11. After the year 1865, and prior to the year 1872, attempts were made at different times by the public authorities of both the commonwealth of Virginia and the state of West Virginia, respectively, to ascertain their contributive proportions of the common liability resting upon them for the public debt of Virginia, contracted prior to January 1st, 1861; but all such attempts proved ineffectual and vain, and no accounting or settlement of any kind was ever had between the two states in regard to this debt. "12. The efforts looking to a settlement by the concurrent action of the two states. having proved abortive, and your oratrix being anxious to adjust the portion of the common debt which it was right that she should assume and pay, upon terms just and equitable alike to the public creditors and to West Virginia, made several efforts to effect such a settlement. "The first of these was made by the general assembly which was chosen at the close of the period of 'destruction and reconstruction,' which, following closely upon the period of disastrous war, had inflicted upon her people injuries and losses, the harmful effects of which were then by no means realized. "The purpose of the representatives of the commonwealth, then just emerging from conditions which had impoverished her had impoverished her people and paralyzed their productive energies, to assume and pay to the utmost every dollar which her most exacting creditor could demand of her, was expressed in the act of her general assembly, approved March 30, 1871. "By the terms of settlement embodied in this act, your oratrix undertook to give her obligations bearing 6 per cent interest for two thirds of the principal, and for two thirds of the past-due interest, and also for two thirds of the interest on that accrued interest, which accrued interest, to the extent of nearly $8,000,000, had been funded after the war in new bonds of Virginia, thus capitalizing at 6 per cent not only the interest, but the interest upon that interest. "It was soon apparent that Virginia had by this measure assumed a heavier burden than she was able to bear, and so other plans for the settlement of the state debt were attempted by the acts of the general assembly of the commonwealth approved March 28, 1879, and February 14, 1882, until at length a final and satisfactory settlement of the portion of the debt of the original state which Virginia should assume and pay was definitely concluded by the act of February 20, 1892. Your oratrix will file assembly herein mentioned as exhibits to this bill, and to be read as part thereof. "13. As farther indicating the great burden which your oratrix, notwithstanding the disaster and loss above referred to, has assumed and met on account of the commondebt of the undivided state, she shows your honors that, since January 1st, 1861, shehas actually paid off, retired, and discharged, or assumed and given her new outstanding obligations for, the aggregate sum of over $71,000,000, as will more particularly appear from a statement thereof filed as an exhibit herewith and hereinafter referred to as exhibit number 7. "It is proper in this connection to call attention to the fact that, while your oratrix has made this large contribution toward the settlement of the common debt, West Virginia has not paid one dollar thereof; and although, in the early years of her history, she repeatedly conceded that there was some portion of that debt which should equitably be borne by her, her properly constituted authorities have for a number of years refused to recognize that any liability whatever rested upon her on that account, and have declined even to enter into an accounting or to treat with your oratrix in reference thereto. "It would seem from the above statement that Virginia has already done as much under all the circumstances as she could be fairly expected to do towards paying off the common public debt of the old state. Such was the view and purpose of the general assembly in the several acts above cited. "A question may be raised as to whether such was the effect of the language used in the act of March 30, 1871, with respect to the certificates issued thereunder; but the great mass of the creditors entitled to whatever may be, due upon the unfunded obligations of the undivided state have in effect agreed, as will be hereinafter shown, to waive any such question, and to accept the adjudication of this court in this cause against West Virginia in full discharge of all their claims, thus giving that effect to the act of March 30, 1871, which it was the purpose of your oratrix that it should have. "14. By each of the acts for the settlement of her debt, above recited, it was provided that the bonds of undivided Virginia, so far as not founded in the new obligationsgiven by your oratrix, should be surrended to and held by your oratrix, who, either by the express terms of the settlement provided for by said acts, or as a just and equitable consequence therefrom, receiveď 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 your oratrix to each creditor whose old Virginia bond was so surrendered to her. "Having, as an essential part of the contract for the adjustment of the common debt of the original state, entered into this fiduciary relation in reference to these bonds, it became her obligation of duty to the creditors who had confided their securities to her keeping, as well as to her own people, whose credit and fair name required that these obligations of the old state should be fairly and honorably adjusted, to do all in her power to bring about a determination of West Virginia's just liability in respect thereto, and, if possible, the recognition and settlement of the same by that state. "For all of these obligations taken up and payments made on account of the common debt, your oratrix has, in her own right, a just claim against West Virginia for contribution to the extent of West Virginia's equitable liability therefor. "17. In addition to the above bonds there were outstanding on the 1st day of January, 1861, certain obligations of the state of Virginia as guarantor upon some of the securities issued by internal improvement companies, which your oratrix was called upon to provide for and settle. They were not comparatively of very large amount, however, and the questions involved in connection therewith can be stated and settled in the account hereinafter 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 of this question, of such vast importance to your oratrix and to all of her people. trix thereon ascertained, under the supervision of a court of equity. "18. Your oratrix charges that the lia not have been specifically or accurately stated herein. These items of accounting 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 liabilities, have been taken up and are now actually held by your oratrix, and she has the right to call upon West Virginia for ability of the state of West Virginia, for a settlement with respect thereto. They are too numerous and involve too great a number of transactions running through many years, for it to be practicable to exhibit them here in detail, but the original bonds and other evidences of indebtedness so paid off or retired and now held by your oratrix will, when it shall be proper to do so, be exhibited to the master, who shall take the accounts hereinafter prayed for. just and equitable proportion of the public debt of Virginia, as of the time when the state of West Virginia was created, rests upon the following, among many grounds which might be indicated here: "First. The area of the territory now known as the state of West Virginia formed about one third of the territory of the commonwealth of Virginia when this public debt was created, and its population in"16. Of the evidences of indefiniteness cluded about one third of that of the origrepresenting 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 herritory, with the population thereof, assume own right, exclusive of the amounts rep resented by the certificates issued under the funding acts aforesaid, amount, in the aggregate, including the interest to be fairly computed thereon to this date, to a very large sum, considerably in excess of $25,000,000, by far the greater part of it being now, of course, on account of the interest computed thereon, at the rate of 27 S. C.-47. therewith liability for a just and equitable proportion of the public debt created prior to the partition of such territory. "Second. The liability of West Virginia for a just proportion of the public debt of the commonwealth of Virginia, as it existed prior to the creation and erection of the state of West Virginia, forms part of her very political existence, and is an essential 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 liability on account of said debt is prescribed. And this liability is imbedded in the Constitution under which she was admitted as a state into the Federal Union, and was one of the conditions under which she was created a state and admitted into the Union. "Third. The state of West Virginia has further, by the repeated enactments and joint resolution of her legislature, recognized her liability for a just proportion of this debt. "Fourth. The state of West Virginia has, since her creation as a state, received from the state of Virginia real and personal property, amounting in value to many millions of dollars, and held and enjoyed the same, but upon expressed condition that she should duly account for the same in a settlement thereafter to be had between her and the commonwealth of Virginia. "Fifth. While the transfer of this property, real and personal, and also of certain moneys of the commonwealth of Virginia, purport to have been made to the state of West Virginia by the act of the restored government of Virginia,' there were in fact represented in said 'restored government' and in the legislature thereof no other people and no other territory than that which then, as now, constitute the state of West Virginia. "19. The general assembly of Virginia, being anxious to effect a settlement of the portion of the common debt of the undivided state which remained unadjusted, and, if possible, to bring this about with the friendly co-operation and concurrence of West Virginia, adopted: A joint resolution to provide for adjusting with the state of West Virginia, the proportion of the public debt of the original state of Virginia proper to be borne by the state of West Virginia, and for the application of whatever may be received from the state of West Virginia to the payment of those found to be entitled to the same,' approved March 6, 1894. A copy of this resolution will be hereinafter shown as an exhibit to this bill, to be read as a part thereof. "Under this resolution a commission of seven members was appointed for the purpose of carrying into effect the objects expressed therein. a friendly adjustment, having been declined, the general assembly of Virginia passed the act approved March 6, 1900, entitled 'An Act to Provide for the Settlement with West Virginia of the Proportion of the Public Debt of the Original State of Virginia Proper to be Borne by West Virginia, and for the Protection of the Commonwealth of Virginia in the Premises,' the purpose of which act is sufficiently set forth in its title, and a copy of the act will also be hereinafter shown as one of the exhibits herewith filed. "20. The commission, acting under said last-mentioned act, made most earnest efforts to bring about an amicable adjustment of the matters hereinbefore set forth with West Virginia, but all of their efforts in that behalf proved ineffectual and unavailing. An application to this honorable court being thus left as the only alternative for Virginia, this suit has been instituted at the request and direction of the said commission, and in strict conformity with the provisions of the said act of March 6, 1900, all of which will be more fully and completely shown by the report of the said commission dated January 6, 1906, made to the general assembly of Virginia, now in session, a copy of which report and the documents accompanying the same, and referred to therein, will be exhibited as a part of this bill." 21. Enumerates exhibits attached to the bill and prayed to be regarded as part thereof. 22. The bill prayed; "Forasmuch, therefore, as your oratrix is remediless save in this form and forum, and to the end that the state of West Virginia may be duly served, through her governor and attorney general, with a copy of this bill, your oratrix prays that the said state of West Vir ginia may be made a party defendant to this bill, and required to answer the same, that all proper accounts may be taken to determine and ascertain the balance due from the state of West Virginia to your oratrix, in her own right and as trustee as aforesaid; that the principles upon which such accounting shall be had may be ascertained and declared, and a true and proper settlement made of the matters and things above recited and set forth; that such accounting be had and settlement made, under the supervision and direction of this court by such auditor or master as may by the court be selected and empowered to that end, and that proper and full reports of such accounting and settlement may be made to this court; that the state of West "The efforts made by this commission, acting under the above resolution, to bring about a settlement with West Virginia, having proved ineffectual, and the overture which the commission, with the active cooperation of the Honorable Charles T. O'Ferral, 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 ownlic 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, in order to a full and correct settlement and adjustment of the accounts between the two states; that this court will adjudicate and determine the amount due to your oratrix by the state of West Virginia in the premises; and that all such other and further and general relief be granted unto your oratrix in the premises as the nature of her case may require or to equity may seem meet." Attached to the bill were the numerous exhibits referred to. Sixth. That the said bill does not sufficiently and definitely set forth the claims and demands relied upon, but the allegations thereof are so indefinite and uncertain that no proper answer can be made thereto. "Seventh. That the allegations in the said bill are not sufficient to entitle the plaintiff therein, either in her own right or as trustee, to an account or to a discovery from this defendant. "Eighth. That the said bill does not con The 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 defendant." "First. That it appears by said bill that there is a misjoinder of parties plaintiff and a misjoinder of causes of action. The said bill is brought by the commonwealth of Virginia to recover debts alleged to be due to her in her own right from the defendant for property and money alleged to have been transferred and delivered to the defendant under certain acts of the legislature passed in 1863, and also, as trustee for the owners of certain certificates mentioned and described in said bill, to have an accounting to ascertain ascertain and declare the amount claimed to be due from the defendant as her just proportion of the public debt of the plaintiff prior to the 1st day of January, 1861. "Second. That this court has no jurisdiction of either the parties to or the subject-matter of this action, because it appears by the said bill that the matters therein set forth do not constitute, within the meaning of the Constitution of the United States, such a controversy or such controversies, between the commonwealth of Virginia and the state of West Virginia as can be heard and determined in this court, and this court has no power to render or enforce any final judgment or decree thereon. "Third. That it appears by said bill that the plaintiff herein sues as trustee for the benefit of a number of individuals who are the alleged owners of certain certificates in the said bill set forth and described. "Fourth. That the said bill does not state facts sufficient to entitle the commonwealth of Virginia to the relief prayed for, or to any relief, either in her own right or as trustee for the owners of the certificates therein set forth and described. "Fifth. That it does not appear by said bill that the attorney general has ever been authorized to institute and prosecute this Hearing on the demurrer was had March 11, 12, 1907. Messrs. William A. Anderson and Holmes Conrad for complainant. Messrs. John G. Carlisle, Charles E. Hogg, C. W. May, and Mollohan, McClintic, & Mathews for defendant. Mr. Chief Justice Fuller delivered the opinion of the court: The state of West Virginia was admitted into the Union June 20, 1863, under the proclamation of the President of the United States of April 20, 1863 [13 Stat. at L. 731], in pursuance of the act of Congress approved December 31, 1862 [12 Stat. at L. 633, chap. 6], upon the terms and conditions prescribed by the commonwealth of Virginia in ordinances adopted in convention and in acts passed by the general assembly of the restored government of the commonwealth, giving her consent to the formation of a new state out of her territory, with a constitution adopted for the new state by the people thereof. The 9th section of the ordinance adopted by the people of the restored state of Virginia in convention assembled in the city of Wheeling, Virginia, on August 20, 1861, entitled, "An ordinance to Provide for the Formation of a New State out of a Portion of the Territory of This State," provided as follows: "9. The new state shall take upon itself a just proportion of the public debt of the commonwealth of Virginia, prior to the 1st day of January, 1861, to be ascertained by charging to it all state expenditures within the limits theerof, and a just proportion of the ordinary expenses of the state government, since any part of said debt was contracted; and deducting there |