from the moneys paid into the treasury, through its constituted authorities, to efof the commonwealth from the counties in- fect an adjustment and settlement with cluded within the said new state during the West Virginia for an equitable proportion same period. All private rights and in of the public debt of the undivided state, terests in lands within the proposed state, proper to be borne and paid by West Virderived from the laws of Virginia prior to ginia, but all these efforts proved unavailsuch separation, shall remain valid and se ing, and it is charged that West Virginia cure under the laws of the proposed state, refused or failed to take any action or and shall be determined by the laws now to do anything for the purpose of bringexisting in the state of Virginia.

ing about a settlement or adjustment with The consent of the commonwealth of Vir- Virginia. ginia was given to the formation of a new The original jurisdiction of this court state on this condition. February 3 and 4, was, therefore, invoked by Virginia to pro1863, the general assembly of the restored cure a decree for an accounting as between state of Virginia enacted two statutes in the two states, and, in order to a full and pursuance of the provisions of which money correct adjustment of the accounts, the adand property amounting to and of the value judication and determination of the amount of several millions of dollars were, after the due Virginia by West Virginia in the premadmission of the new state, paid over and ises. transferred to West Virginia, The Constitu- But is is objected that this court has no tion of the state of West Virginia when ad- jurisdiction because the matters set forth mitted contained these provisions, being ss in the bill do not constitute such a contro5, 7, and 8 of article 8 thereof, as follows: versy or such controversies as can be heard

“5. No debt shall be contracted by this and determined in this court, and because state except to meet casual deficits in the the court has no power to enforce, and revenue, to redeem a previous liability of therefore none to render, any final judgthe state, to suppress insurrection, repel ment or decree herein. We think these obinvasion, or defend the state in time of jections are disposed of by many decisions war.”

of this court. Cohen v. Virginia, 6 Wheat. "7. The legislature may at any time di- 264, 378, 406, 5 L. ed. 257, 284, 291; Kanrect a sale of the stocks owned by the state sas v. Colorado, 185 U. S. 125, 46 L. ed. in banks and other corporations, but the 838, 22 Sup. Ct. Rep. 552, May 13, 1907, proceeds of such sale shall be applied to 206 U. S. 46, 51 L. ed. 956, 27 Sup. Ct. Rep. the liquidation of the public debt; and here- 655; Missouri v. Illinois, 180 U. S. 208, 45 after the state shall not become a stock. L. ed. 497, 21 Sup. Ct. Rep. 331, 200 U. S. holder in any bank.

496, 50 L. ed. 572, 26 Sup. Ct. Rep. 268; “8. An equitable proportion of the public Georgia v. Tennessee Copper Co. May 13, debt of the commonwealth of Virginia, prior 1907, 206 U. S. 230, 51 L. ed. 1038, 27 Sur. to the first day of January, in the year Ct. Rep. 618; United States v. Texas, 143 U. one thousand eight hundred and sixty-one, S. 621, 36 L. ed. 285, 12 Sup. Ct. Rep. 488; shall be assumed by this state; and the leg. United States v. North Carolina, 136 U. islature shall ascertain the same as soon s. 211, 34 L.

L. ed.

ed. 336, 10 Sup. Ct. as may be practicable, and provide for the Rep. 920; United States v. Michigan, 190 liquidation thereof by a sinking fund suffi- U. S. 379, 47 L. ed. 1103, 23 Sup. Ct. Rep. cient to pay the accruing interest and re- 742. deem the principal within thirty-four years." In Cohen v. Virginia, the Chief Justice

The “public debt" and the “previous lia- said: “In the second class, the jurisdiction bility” manifestly referred to a portion of depends entirely on the character of the parthe public debt of the original state of Vir- ties. In this are comprehended 'controginia and liability for the money and prop-versies between two or more states, between erty of the original state, which had been a state and citizens of another state,' 'and received by West Virginia under the acts between a state and foreign states, citiof the general assembly, above cited, en- zens, or subjects. If these be the parties, acted while the territory and people after it is entirely unimportant what may be wards forming the state of West Virginia the subject of controversy. Be it what it constituted a part of the commonwealth may, these parties have a constitutional of Virginia, though one may be involved right to come into the courts of the Union.” in the other; while the provisions of $$ 7 and And, referring to the 11th Amendment, 8 were obviously framed in compliance with it was further said: the conditions on which the consent of Vir- "It is a part of our history that, at the ginia was given to the creation of the state adoption of the Constitution, all the states of West Virginia, and the money and prop- were greatly indebted; and the apprehenerty were transferred. From 1865 to 1905 sion that these debts might be prosecuted Various efforts efforts were

were made by Virginia,' in the Federal courts formed a very serious

\

objection to that instrument. Suits were, what means the decree inay be enforced. instituted, and the court maintained its ju- Consent to be sued was given when West risdiction. The alarm was general; and, to Virginia was admitted into the Union, and quiet the apprehensions that were so ex- it must be assumed that the legislature of tensively entertained, this Amendment was West Virginia would, in the natural course, proposed in Congress, and adopted by the make provision for the satisfaction of any state legislatures. That its motive was not decree that may be rendered. to maintain the sovereignty of a state from It is, however, further insisted that this the degradation supposed to attend a com- court cannot proceed to judgment because pulsory appearance before the tribunal of of an alleged compact entered into between the nation may be inferred from the terms Virginia and West Virginia, with the conof the Amendment. It does .not compre- sent of Congress, by which the question of hend controversies between two or more the

the liability of Virginia to West Virstates, or between a state and a foreign ginia was submitted to the arbitrament and state. The jurisdiction of the court still award of the legislature of West Virginia extends to these cases; and in these a as the sole tribunal which could pass upon state may still be sued. We must ascribe it. As we have seen, the Constitution of the Amendment, then, to some other cause West Virginia, when admitted into the than the dignity of a state. There is no Union, contained the provision: “An equidifficulty in finding this cause. Those who table proportion of the public debt of the were inhibited from commencing a suit commonwealth of Virginia prior to the first against a state, or from prosecuting one day of January, in the year one thousand which might be commenced before the adop- eight hundred and sixty-one, shall be astion of the Amendment, were persons who sumed by this state, and the legislature might probably be its creditors. There was shall ascertain the same as soon as may be not much reason to fear that foreign or practicable, and provide for the liquidation sister states would be creditors to any con- | thereof by a sinking fund .. and residerable amount, and there was reason to deem the principal within thirty-four retain the jurisdiction of the court in those years.” And it is said that, on May 13, cases, because it might be essential to the 1862, the legislature of Virginia passed an preservation of peace. The Amendment, act entitled “An Act Giving the Consent

, therefore, extended to suits commenced or of the Legislature of Virginia to the Forma, prosecuted by individuals, but not to those tion and Erection of a New State within brought by states."

the Jurisdiction of this State,” by which By the cases cited, and there are many consent was given to the creation of the more, it is established that, in the exercise proposed new state, "according to the boundof original jurisdiction as between states, aries and under the provisions set forth this court necessarily in such a case as in the Constitution for the said state of this has jurisdiction.

West Virginia, and the schedule thereto United States v. North Carolina and Unit- annexed, proposed by the convention which ed States v. Michigan, supra, were contro assembled at Wheeling on the 26th day of versies arising upon pecuniary demands, and November, 1861;" and that by the act of jurisdiction was exercised in those cases Congress the consent of that body was givjust as in those for the prevention of the en to all those provisions which thus beflow of polluted water from one state along came a constitutional and legal compact the borders of another state, or of the between the two states. The act of May diminution in the natural flow of rivers 13, 1862, was not made a part of the case by the state in which they have their sour- stated in the bill, and its validity is deces through and across another state or nied by counsel for Virginia, but it is states, or of the discharge of noxious gases unnecessary to go into that, for when Virfrom works in one state over the territory ginia, on August 20, 1861, by ordinance proof another.

vided "for the formation of a new state The object of the suit is a settlement out of the territory of this state," and dewith West Virginia, and to that end a clared therein that “the new state shall determination and adjudication of

adjudication of the take upon itself a just proportion of the amount due by that state to Virginia; and public debt of the commonwealth of Virwhen this court has ascertained and ad-ginia prior to the 1st day of January, 1861," judged the proportion of the debt of the to be ascertained as provided, it is to be original state which it would be equitable supposed that the new state had this in for West Virginia to pay, it is not to be mind when it framed its own Constitution, presumed on demurrer that West Virginia and that when that instrument provided would refuse to carry out the decree of this that its legislature should "ascertain the court. If such repudiation should be ab- same as soon as practicable,” it referred to solutely asserted we can then consider by the method of ascertaining prescribed by

the Virginia convention. Reading the Vir- | the authorities leave it, to the sound disginia ordinance and the West Virginia cretion of the court,-have been often af. constitutional provision in pari materia, it firmed in this court. Oliver v. Piatt, 3 IIow. follows that what was meant by the 333, 411, 11 L. ed. 622, 657; Gaines v. Chew,

, v expression that the “legislature shall as- 2 How. 619, 642, 11 L. ed. 402, 411. But certain" was that the legislature should we do not mean to rule that the bill is ascertain, as soon as practicable, the re- multifarious. It is true that the prayer sult of the pursuit of the method pre-contains, among other things, the request, scribed, and provide for the liquidation “that all proper accounts may be taken to of the amount so ascertained. And it determine and ascertain the balance due may well be inquired why, in the forty- from the state of West Virginia to your three years that have elapsed since the al- oratrix in her own right and as trustce leged compact was entered into, West Vir- aforesaid," but it also prays that the ginia has never indicated that she stood up court "will adjudicate and determine the on such a compact, and, if so, why no step amount due to your oratrix by the state has ever been taken by West Virginia to of West Virginia in the premises.” And enter upon the performance of the duty we understand the reference to holding in which such "compact” imposed, and to no- trust to be in the interest of mere conventify Virginia that she was ready and will-ience, and that the bill cannot properly be ing to discharge such duty.

regarded as seeking in chief anything more It is also urged that Virginia had no than a decree for “an equitable proportion interest in the subject-matter of the contro of the public debt of the commonwealth of versy because she had been released from Virginia on the 1st day of January, 1861." all liability on account of the public deot The objections of misjoinder of parties and of the old commonwealth, evidenced by her misjoinder of causes of action may be treatbonds outstanding on the 1st day of Jan-ed as resting on matter of surplusage mereuary, 1861. This relates to the acts of the ly, and, at all events, further consideration general assembly of Virginia of March 30, thereof may wisely be postponed to final 1871, March 28, 1879, February 14, 1882, hearing. Florida v. Georgia, 17 How. 491, February 20, 1892, March 6, 1894, and March 492, 15 L. ed. 188, 189; California v. South6, 1900. According to the bill, Virginia, by ern P. Co. 157 U. S. 249, 39 L. ed. 690, 15 the act of March 30, 1871, and subsequent Sup. Ct. Rep. 591. acts, in an attempt to provide for the The order will be funding and payment of the public debt, Demurrer overruled without prejudice to having estimated that the liability of West any question, and leave to answer by the Virginia was for one third of the amount first Monday of next term. of the old bonds, provided for the issue of new bonds to the amount of two thirds of the total, and for the issue of certificates

UNITED STATES, Appt., for the other third, which showed that Virginia held the old bonds, so far as unfunded, CONRAD HEINSZEN and Gustav Brockin trust for the holders or their assignees,

mann, Trading as Partners under the Firm to be paid by the funds expected to be Name of C. Heinszen & Company. obtained from West Virginia as her "just and equitable proportion of the public Constitutional law-delegation of power. debt.” The legislation resulted in the sur

1. Congress, in dealing with the Philiprender of most of the old bonds to Virginia, thority to such agencies as it may select.

pine Islands, may delegate legislative ausatisfied as to two thirds, and held as se

Duties-ratification of illegal collection. curity for the creditors as to one third. We do not care to take up and discussing rights, Congress could, by the act of

2. Aside from any question of interven. this legislation. We are satisfied that, as June 30, 1906 34 Stat. at L. 636, chap.

( we have jurisdiction, these questions ought 3912), ratify the illegal collection of duties not to be passed upon on demurrer. Kansas on imports to the Philippine Islands which v. Colorado, 185 U. S. 125, 144, 145, 46 L. were levied under the President's order of ed. 838, 845, 846, 22 Sup. Ct. Rep. 552. And July 12, 1898, between the dates of the rati. this also furnishes sufficient ground for not fication of the treaty of peace with Spain considering at length the objection of multi- and the passage of the act of July 1, 1902 fariousness. The observations of Lord Cot-|(32. Stat. at L. 691, chap. 1369), enacting a

tariff of duties for those islands. tenham, in Campbell v. Mackay, 1 Myl. & C. 603, that it is impracticable to lay down Constitutional law—due process of law,

ratification of illegal duties-effect of any rule as to what constitutes multifari

pending action. ousness, as an abstract proposition; that

3. The ratification by Congress by the each case must depend upon its own cir- act of June 30, 1906, of the illegal collection cumstances; and much must be left where l of duties on imports to the Philippine Is

lands which were levied under the Presi- Islands, whether from the United States or dent's order of July 12, 1898, between the other countries. This tariff was in force dates of the ratification of the treaty of when the treaty of peace [30 Stat. at L.

] act of July 1, 1902, enacting a tariff of du: 1754) was signed (December 10, 1898), when ties for those islands, does not deprive im the treaty was ratified (April 11, 1899), and

. porters of their property without due proc. was continued by the Philippine commission ess of law, in violation of U. S. Const., 5th appointed by the President in April, 1900. Amend., even though they had commenced Indeed, the civil government, as established an action to recover the amount of the du- in the islands by the President, either in ties so collected before the ratifying statute virtue of his inherent authority or as a was enacted.

result of the power recognized and conferred

by the act of Congress approved March 2, [No. 580.]

1901 (31 Stat. at L. 910, chap. 803), con

tinued the original tariff in force, except Argued April 9, 10, 1907. Decided May 27, as to some modifications not material to be 1907.

noticed, and formulated its provisions in the

shape of a legislative act entitled "An Act PPEAL from the Court of Claims to to Revise and Amend the Tariff Laws of the A

review a judgment for the recovery of Philippine Archipelago. And this tariff was duties illegally collected on imports to the in force in March, 1902, when it was exPhilippine Islands which were levied under pressly approved and continued by Conthe President's order of July 12, 1898, begress. (32 Stat. at L. 54, chap. 140, U. S. tween the dates of the ratification of the Comp. Stat. Supp. 1905, p. 388.) treaty of peace with Spain and the passage

In May, 1901, the cases of De Lima v. Bid. of the statute enacting the tariff of duties well and Dooley v. United States were by for those islands. Reversed.

this court decided. 182 U. S. l, 222, 45 L. The facts are stated in the opinion. ed. 1041, 1074, 21 Sup. Ct. Rep. 743, 762.

Attorney General Bonaparte, Solicitor The first case involved the right to recover General Hoyt, Assistant Attorney General duties paid under protest to the collector of Van Orsdel, and Mr. George M. Anderson the port of New York upon sugar brought for appellant.

into the United States from the island of Messrs. Frederic R. Coudert, Henry M. Porto Rico during the autumn of 1899, and Ward, John G. Carlisle, and Paul Fuller for subsequent to the cession of the island. The appellees.

second case involved the right to recover Messrs. Hilary A. Herbert and Benjamin the amount of certain duties on goods carMicou for certain claimants having inter- ried into Porto Rico from the United States ests similar to those of appellees.

between July 6, 1898, and May 1, 1900, the

duties in question having been levied by auMr. Justice White delivered the opinion of thority of the general in command of the the court:

army of occupation or subsequently by orIn an endeavor to clarify the considera- der of the President as commander in chief. tion of this controversy we invert some

In the first case (De Lima v. Bidwell) it was what the order in which the facts have been decided that, as the effect of the ratificastated in the findings below, and refer to tion of the treaty was to take the island previous rulings of this court pertinent to of Porto Rico out of the category of forthe subject in hand, besides supplementing eign territory, within the meaning of that the same by a reference to relevant matters word as used in existing tariff laws of the of public history, of which we take judicial United States, no right remained to enforce, notice.

against goods coming from Porto Rico into After the Philippine Islands came under the United States, the previously enacted the military control of the United States, tariff of duties, although, considering the the President, on July 12, 1898, issued an | terms of the treaty and the relation of the order providing for the enforcement by the island to the United States, Congress had military power in those islands of a system power to impose a tariff on goods coming of tariff duties. This order, promulgated from that island into the United States. As by the Secretary of War, was accompanied | a corollary of the doctrine announced in De with an enumeration of the tariff proposed, Lima v. Bidwell, in the second case (Dooley and regulations for the collection of the v. United States) it was held that whilst same. However, for causes which need not the President, as commander in chief, had be referred to, the tariff in question was authority to impose tariff duties in Porto subsequently modified, and did not go into Rico on goods coming into that country operation until November, 1898.

from the United States prior to the ratificaThe duties imposed by this tariff were lev. tion of the treaty, no such executive power ied on goods coming into the Philippine I existed after that ratification. It wàs consequently held that none of the duties paid out of the reach of the doctrine announced prior to the ratification of the treaty could in the previous cases which we have rebe recovered, whilst those paid subsequently viewed, and it was therefore decided that could be.

the President was without power, after the In the following year (December 2, 1901) ratification of the treaty, in the absence of another case, entitled Dooley v. United express authority from Congress, to impose States, was decided. 183 U. S. 151, 46 L. ed. the tariff duties in question. A contention 128, 22 Sup. Ct. Rep. 62. That case involved on the part of the United States that Conthe validity of tariff duties levied in Porto gress, by the 2d section of the act approved Rico on goods brought into that island from July 1, 1902 (entitled "An Act Temporarily the United States, the duties in question to Provide for the Administration of the Afhaving been imposed after the ratification fairs of Civil Government in the Philippine of the treaty, and in and by virtue of the Islands, and for Other Purposes”) [32 act of Congress known as the Foraker act. Stat. at L. 691, chap. 1369], had ratiApplying the principles announced in the fied the action of the President in imposing previous cases just referrred to, it was held and collecting the duties in controversy, that the duties were lawful because, al- therefore no recovery could be had, was though collected after the ratification, they held to be unfounded, for grounds stated were imposed not simply by virtue of the in the opinion, to which we shall hereafter authority of the President, acting under the advert. The case was heard upon rehearing, military power, but in conformity to a valid and in a decision announced on May 28, act of Congress.

1906, the views previously entertained by And on the same day with the foregoing the court were reiterated and adhered to. the case of Fourteen Diamond Rings v. 202 U. S. 484, 50 L. ed. 1117, 26 Sup. Ct. United States (The Diamond Rings) was de- Rep. 728. In the month following (June, cided. 183 U. S. 176, 46 L. ed. 138, 22 Sup. 1906) Congress passed an act containing a Ct. Rep. 59. That case involved the validity provision which reads as follows (34 Stat. of tariff duties levied on diamond rings at L. 636, chap. 3912): brought from the Philippine Islands into "That the tariff duties, both import and the United States. Adhering to the doc- export, imposed by the authorities of the trines settled by the prior rulings, it was United States or of the provisional military held that, as the Philippine Islands, by the government thereof in the Philippine Islands ratification of the treaty, had ceased to be prior to March eight, nineteen hundred and foreign within the meaning of the tariff two, at all ports and places in said islands, laws, the imposition of the duties com- upon all goods, wares, and merchandise implained of was unlawful. In the course of ported into said islands from the United the opinion the effect of the treaty as ap- States, or from foreign countries, or exportplied in the previous cases to Porto Rico ed from said islands, are hereby legalized was pointed out, and the status of the Phil- and ratified, and the collection of all such ippine Islands in virtue of the treaty was, duties prior to March eight, nineteen hunin effect, held to be controlled by the former dred and two, is hereby legalized and ratidecisions.

fied and confirmed as fully to all intents and In April, 1905, the two cases of Lincoln v. purposes as if the same had, by prior act United States and Warner, B. & Co. v. of Congress, been specifically authorized and United States were by this court decided.directed.” 197 U. S. 419, 49 L. ed. 816, 25 Sup. Ct. Rep. Now this case was commenced after the 455. The cases came here, one on error to decision in the Fourteen Diamond Rings, to the district court of the United States for recover the amount of tariff duties exacted the southern district of New York, and the in the Philippine Islands on merchandise other by appeal from the court of claims. brought from the United States, the duties The one (Lincoln Case) was commenced on having been collected under the authority March 29, 1902; the other (Warner, B. & Co. of the order of the President after the ratCase) on January 17, 1902. In both cases ification of the treaty, but before the time recovery from the United States was sought when Congress, by $ 1 of the act of March of the amount of duty paid upon goods 8, 1902, had enacted tariff duties for the taken from the United States into the Phil Philippine Islands. The case was pending ippine Islands after the ratification of the in the court of claims when the Lincoln and treaty with Spain, and before the passage Warner, B. & Co. Cases were decided by this of the act of Congress of March 8, 1902. court. It was found by the court below that Reversing the judgments which had been the military officers of the United States col. rendered below in both cases in favor of the lected the duties and paid over the amount United States, it was declared that there thereof to the treasurer of the Philippine was nothing in the situation of the Phil. Islands, and that the money was disbursed ippine Islands which took that territory | for the expenses of that government with

.