Virginia v. West Virginia (246 U.S. 565)/Opinion of the Court

A rule allowed at the instance of Virginia against West Virginia to show cause why in default of payment of the judgment of this court in favor of the former state against the latter, an order should not be entered directing the levy of a tax by the Legislature of West Virginia to pay such judgment, and a motion by West Virginia to dismiss the rule is the matter before us.

In the suit in which the judgment was rendered Virginia, invoking the original jurisdiction of this court, sought the enforcement of a contract by which it was averred West Virginia was bound. The judgment which resulted was for $12,393,929.50 with interest and it was based upon three propositions specifically found to be established: First, that when territory was carved out of the dominion of the state of Virginia for the purpose of constituting the area of the state of West Virginia, the new state, coincident with its existence, became bound for and assumed to pay its just proportion of the previous public debt of Virginia. Second, that this obligation of West Virginia was the subject of a contract between the two states made with the consent of Congress and was incorporated into the Constitution by which West Virginia was admitted by Congress into the Union and therefore became a condition of such admission and a part of the very governmental fiber of that state. Third, that the sum of the judgment rendered constituted the equitable proportion of this debt due by West Virginia in accordance with the obligations of the contract.

The suit was commenced in 1906 and the judgment rendered in 1915. The various opinions expressed during the progress of the cause will be found in the reported cases cited in the margin, in the opinion in one of which (234 U.S. 117, 34 Sup. Ct. 889, 58 L. Ed. 1243) a chronological statement of the incidents of the controversy was made.

The opinions referred to will make it clear that both states were afforded the amplest opportunity to be heard and that all the propositions of law and fact urged were given the most solicitous consideration. Indeed, it is also true that in the course of the controversy, as demonstrated by the opinions cited, controlled by great consideration for the character of the parties, no technical rules were permitted to frustrate the right of both of the states to urge the very merits of every subject deemed by them to be material.

And controlled by a like purpose before coming to discharge our duty in the matter now before us we have searched the record in vain for any indication that the assumed existence of any error committed has operated to prevent the discharge by West Virginia of the obligations resulting from the judgment and hence has led to the proceeding to enforce the judgment which is now before us. In saying this however we are not unmindful that the record contains a suggestion of an alleged claim of West Virginia against the United States, which was not remotely referred to while the suit between the two states was undetermined, the claim referred to being based on an assumed violation of trust by the United States in the administration of what was left of the great domain of the Northwest Territory-a domain as to which, before the adoption of the Constitution of the United States, Virginia at the request of Congress transferred to the government of the Confederation all her right, title and interest in order to allay discord between the states, as New York had previously done and as Massachusetts, Connecticut, South Carolina, North Carolina and Georgia subsequently did. It is obvious that the subject was referred to in connection with the duty of West Virginia to comply with the requirements of the judgment upon the hypothesis that if the United States owed the claim and if in a suit against the United States recovery could be had, and if West Virginia received its share, it might be used, if sufficient, for discharging the judgment and thus save West Virginia from resorting to other means for so doing.

That judicial power essentially involves the right to enforce the results of its exertion is elementary. Wayman v. Southard, 10 Wheat. 1, 23, 6 L. Ed. 253; Bank of the United States v. Halstead, 10 Wheat. 57, 6 L. Ed. 264; Gordon v. United States, 117 U.S. 697, 702. And that this applies to the exertion of such power in controversies between states as the result of the exercise of original jurisdiction conferred upon this court by the Constitution is therefore certain. The many cases in which such controversies between states have been decided in the exercise of original jurisdiction make this truth manifest. Nor is there room for contending to the contrary because in all the cases cited the states against which judgments were rendered conformably to their duty under the Constitution voluntarily respected and gave effect to the same. This must be unless it can be said that because a doctrine has been universally recognized as being beyond dispute and has hence hitherto in every case from the foundation of the government been accepted and applied, it has by that fact alone now become a fit subject for dispute.

It is true that in one of the cited cases (South Dakota v. North Carolina, 192 U.S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448) it was remarked that doubt had been expressed in some instances by individual judges as to whether the original jurisdiction conferred on the court by the Constitution embraced the right of one state to recover a judgment in a mere action for debt against another. In that case, however, it is apparent that the court did not solve such suggested doubt, as that question was not involved in the case then before it and that subject was hence left open to be passed on in the future when the occasion required. But the question thus left open has no bearing upon and does not require to be considered in the case before us, first, because the power to render the judgment as between the two states whose enforcement is now under consideration is as to them foreclosed by the fact of i § rendition. And second, because while the controversy between the states culminated in a decree for money and that subject was within the issues, nevertheless the generating cause of the controversy was the carving out of the dominion of one of the states the area composing the other and the resulting and expressly assumed obligation of the newly created state to pay the just proportion of the pre-existing debt, an obligation which as we have seen rested in contract between the two states, consented to by Congress and expressed in substance as a condition in the Constitution by which the new state was admitted into the Union. In making this latter statement we do not overlook the truism that the Union under the Constitution is essentially one of states equal in local governmental power which therefore excludes the conception of an inequality of such power resulting from a condition of admission into the Union. Ward v. Race Horse, 163 U.S. 504, 16 Sup. Ct. 1076, 41 L. Ed. 244. But this principle has no application to the question of power to enforce against a state when admitted into the Union a contract entered into by it with another state with the consent of Congress since such question but concerns the equal operation upon all the states of a limitation upon them all imposed by the Constitution and the equal application of the authority conferred upon Congress to vivify and give effect by its consent to contracts entered into between states.

Both parties admit that West Virginia is the owner of no property not used for governmental purposes and that therefore from the mere issue of an execution the judgment is not susceptible of being enforced if under such execution property actually devoted to immediate governmental uses of the state may not be taken. Passing a decision as to the latter question, all the contentions on either side will be disposed of by considering two subjects: first, the limitations on the right to enforce inhering in the fact that the judgment is against a state and its enforcement against such governmental being; and second, the appropriateness of the form of procedure applicable for such enforcement. The solution of these subjects may be disposed of by answering two questions which we propose to separately state and consider.

1. May a judgment rendered against a state as a state be enforced against it as such, including the right to the extent necessary for so doing of exerting authority over the governmental powers and agencies possessed by the state?

On this subject Virginia contends that as the Constitution subjected the state of West Virginia to judicial authority at the suit of the state of Virginia, the judgment which was rendered in such a suit binds and operates upon the state of West Virginia, that is, upon that state in a governmental capacity, including all instrumentalities and agencies of state power, and indirectly binding the whole body of the citizenship of that state and the property which by the exertion of powers possessed by the state are subject to be reached for the purpose of meeting and discharging the state obligation. As then, the contention proceeds, the Legislature of West Virginia possesses the power to tax and that body and its powers are all operated upon by the judgment, the inability to enforce by means of ordinary process of execution gives the right and sanctions the exertion of the authority to enforce the judgment by compelling the Legislature to exercise its power of taxation. The significance of the contention and its scope are aptly illustrated by the reference in argument to the many decided cases holding that where a municipality is empowered to levy specified taxation to pay a particular debt, the judicial power may enforce the levy of the tax to meet a judgment rendered in consequence of a default in paying the indebtedness.

On the other hand, West Virginia insists that the defendant as a state may not as to its powers of government reserved to it by the Constit tion be controlled or limited by process for the purpose of enforcing the payment of the judgment. Because the right for that end is recognized to obtain an execution against a state and levy it upon its property, if any, not used for governmental purposes, it is argued, affords no ground for upholding the power by compelled exercise of the taxing authority of the state to create a fund which may be used when collected for paying the judgment. The rights reserved to the states by the Constitution, it is further insisted, may not be interfered with by the judicial power merely because that power has been given authority to adjudicate at the instance of one state a right asserted against another, since although the authority to enforce the adjudication may not be denied, execution to give effect to that authority is restrained by the provisions of the Constitution which recognize state governmental power.

Mark, in words a common premise-a judgment against a state and the authority to enforce it-is the predicate upon which is rested on the one hand the contention as to the existence of complete and effective, and the assertion on the other of limited and inefficacious power. But it is obvious that the latter can only rest upon either treating the word 'state' as used in the premise as embracing only a misshapen or dead entity, that is, a state stripped for the purpose of judicial power of all its governmental authority, or if not, by destroying or dwarfing the significance of the word 'state' as describing the entity subject to enforcement, or both. It needs no argument to demonstrate that both of these theories are incompatible with and destructive of the very numerous cases decided by this court to which we have referred. As it is certain that governmental powers reserved to the states by the Constitution-their sovereignty-were the efficient cause of the general rule by which they were not subject to judicial power, that is, to be impleaded, it must follow that when the Constitution gave original jurisdiction to this court to entertain at the instance of one state a suit against another it must have been intended to modify the general rule, that is, to bring the states and their governmental authority within the exceptional judicial power which was created. No other rational explanation can be given for the provision. And the context of the Constitution, that is, the express prohibition which it contains as to the power of the states to contract with each other except with the consent of Congress, the limitations as to war and armies, obviously intended to prevent any of the states from resorting to force for the redress of any grievance real or imaginary, all harmonize with and give force to this conception of the operation and effect of the right to exert, at the prayer of one state, judicial authority over another.

But it is in substance said this view must be wrong for two reasons: (a) Because it virtually overrides the provision of the Constitution reserving to the states the powers not delegated, by the provision making a grant of judicial power for the purpose of disposing of controversies between states; and (b) because it gives to the Constitution a construction incompatible with its plain purpose, which was while creating the nation, yet at the same time to preserve the states with their governmental authority in order that state and nation might endure. Ultimately the argument at its best but urges that the text of the Constitution be disregarded for fear of supposed consequences to arise from enforcing it. And it is difficult to understand upon what ground of reason the preservation of the rights of all the states can be predicated upon the assumption that any one state may destroy the rights of any other without any power to redress or cure the resulting grievance. Nor further can it be readily understood why it is assumed that the preservation and perpetuation of the Constitution depend upon the absence of all power to preserve and give effect to the great guaranties which safeguard the authority and preserve the rights of all the states.

Besides, however, the manifest error of the propositions which these considerations expose, their want of merit will be additionally demonstrated by the history of the institutions from which the provisions of the Constitution under review were derived and by bringing into view the evils which they were intended to remedy and the rights which it was contemplated their adoption would secure.

Bound by a common allegiance and absolutely controlled in their exterior relations by the mother county, the colonies before the Revolution were yet as regards each other practically independent, that is, distinct one from the other. Their common intercourse more or less frequent, the contiguity of their boundaries, their conflicting claims in many instances of authority over undefined and outlying territory, of necessity brought about conflicting contentions between them. As these contentions became more and more irritating, if not seriously acute, the necessity for the creation of some means of settling them became more and more urgent if physical conflict was to be avoided. And for this reason, it is to be assumed, it early came to pass that differences between the colonies were taken to the Privy Council for settlement and were there considered and passed upon during a long period of years, the sanction afforded to the conclusions of that body being the entire power of the realm, whether exerted through the medium of a royal decree or legislation by Parliament. This power, it is undoubtedly true, was principally called into play in cases of disputed boundary, but that it was applied also to the complaint of an individual against a colony concerning the wrongful possession of property by the colony alleged to belong to him is not disputed. This general situation as to the disputes between the colonies and the power to dispose of them by the Privy Council was stated in Rhode Island v. Massachusetts, 12 Pet. 657, 739, 9 L. Ed. 1233, et seq., and will be found reviewed in the authorities referred to in the margin.

When the Revolution came and the relations with the mother country were severed, indisputably controversies between some of the colonies of the greatest moment to them had been submitted to the Privy Council and were undetermined. The necessity for their consideration and solution was obviously not obscured by the struggle for independence which ensued, for, by the ninth of the Articles of Confederation an attempt to provide for them as well as for future controversies was made. Without going into detail it suffices to say that that article in express terms declared the Congress to be the final arbiter of controversies between the states and provided machinery for bringing into play a tribunal which had power to decide the same. That these powers were exerted concerning controversies between the states of the most serious character again cannot be disputed. But the mechanism devised for their solution proved unavailing because of a want of power in Congress to enforce the findings of the body charged with their solution, a deficiency of power which was generic because resulting from the limited authority over the states conferred by the Articles of Confederation on Congress as to every subject. That this absence of power to control the governmental attributes of the states for the purpose of enforcing findings concerning disputes between them gave rise to the most serious consequences and brought the states to the very verge of physical struggle and resulted in the shedding of blood and would, if it had not been for the adoption of the Constitution of the United States, it may be reasonably assumed, have rendered nugatory the great results of the Revolution, is known to all and will be found stated in the authoritative works on the history of the time.

Throwing this light upon the constitutional provisions, the conferring on th § court of original jurisdiction over controversies between states, the taking away of all authority as to war and armies from the states and granting it to Congress, the prohibiting the states also from making agreements or compacts with each other without the consent of Congress, at once makes clear how completely the past infirmities of power were in mind and were provided against. This result stands out in the boldest possible relief when it is borne in mind that not a want of authority in Congress to decide controversies between states, but the absence of power in Congress to enforce as against the governments of the states its decisions on such subjects, was the evil that cried aloud for cure, since it must be patent that the provisions written into the Constitution, the power which was conferred upon Congress and the judicial power as to states created, joined with the prohibitions placed upon the states, all combined to unite the authority to decide with the power to enforce-a unison which could only have arisen from contemplating the dangers of the past and the unalterable purpose to prevent their recurrence in the future. And, while it may not materially add to the demonstration of the result stated, it may serve a useful purpose to direct attention to the probable operation of tradition upon the mind of the framers, shown by the fact that, harmonizing with the practice which prevailed during the colonial period in the Privy Council, the original jurisdiction as conferred by the Constitution on this court embraced not only controversies between states but between private individuals and a state-a power which following its recognition in Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440, was withdrawn by the adoption of the Eleventh Amendment. The fact that in the Convention, so far as the published debates disclose, the provisions which we are considering were adopted without debate, it may be inferred, resulted from the necessity of their enactment as shown by the experience of the colonies and by the specter of turmoil if not war which, as we have seen, had so recently arisen from the disputes between the states, a danger against the recurrence of which there was a common purpose efficiently to provide. And it may well be that a like mental condition accounts for the limited expressions concerning the provisions in question in the proceedings for the ratification of the Constitution which followed, although there are not wanting one or two instances where they were referred to which when rightly interpreted make manifest the purposes which we have stated.

The state, then, as a governmental entity having been subjected by the Constitution to the judicial power under the conditions stated, and the duty to enforce the judgment by resort to appropriate remedies being certain even although their exertion may operate upon the governmental powers of the State, we are brought to consider the second question, which is:

2. What are the appropriate remedies for such enforcement?

Back of the consideration of what remedies are appropriate, whether looked at from the point of view of the exertion of equitable power or the application of legal remedies extraordinary in character (mandamus, etc.) lies the question what ordinary remedies are available, and that subject must necessarily be disposed of. As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers, and comprehensively considered are sustained by every authority of the federal government, judicial, legislative or executive, which may be appropriately exercised. And confining ourselves to a determination of what is appropriate in view of the particular judgment in this cause, two questions naturally present themselves: (a) The power of Congress to legislate to secure the enforcement of the contract between the states; and (b) the appropriate remedies which may by the j dicial power be exerted to enforce the judgment. We again consider them separately.

(a) The power of Congress to legislate for the enforcement of the obligation of West Virginia.

The vesting in Congress of complete power to control agreements between states, that is, to authorize them when deemed advisable and to refuse to sanction them when disapproved, clearly rested upon the conception that Congress as the repository, not only of legislative power, but of primary authority to maintain armies and declare war, speaking for all the states and for their protection, was concerned with such agreements, and therefore was virtually endowed with the ultimate power of final agreement which was withdrawn from state authority and brought within the federal power. It follows as a necessary implication that the power of Congress to refuse or to assent to a contract between states carried with it the right, if the contract was assented to and hence became operative by the will of Congress, to see to its enforcement. This must be the case unless it can be said that the duty of exacting the carrying out of a contract is not, within the principle of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, relevant to the power to determine whether the contract should be made. But the one is so relevant to the other as to leave no room for dispute to the contrary.

Having thus the power to provide for the execution of the contract, it must follow that the power is plenary and complete, limited of course as we have just said by the general rule that the acts done for its exertion must be relevant and appropriate to the power. This being true it further follows, as we have already seen, that by the very fact that the national power is paramount in the area over which it extends, the lawful exertion of its authority by Congress to compel compliance with the obligation resulting from the contract between the two states which it approved is not circumscribed by the powers reserved to the states. Indeed the argument that the recognition of such a power in Congress is subversive of our constitutional institutions from its mere statements proves to the contrary, since at last it comes to insisting that any one state may by violating its obligations under the Constitution take away the rights of another and thus destroy constitutional government. Obviously if it be conceded that no power obtains to enforce as against a state its duty under the Constitution in one respect and to prevent it from doing wrong to another state, it would follow that the same principle would have to be applied to wrongs done by other states, and thus the government under the Constitution would be not an indissoluble union of indestructible states but a government composed of states each having the potency with impunity to wrong or degrade another a result which would inevitably lead to a destruction of the union between them. Besides it must be apparent that to treat the power of Congress to legislate to secure the performance by a state of its duty under the Constitution, that is, its continued respect for and obedience to that instrument, as coercion, comes back at last to the theory that any one state may throw off and disregard without sanction its obligation and subjection to the Constitution. A conclusion which brings at once to the mind the thought that to maintain the proposition now urged by West Virginia would compel a disregard of the very principles which led to the carving out of that state from the territory of Virginia; in other words, to disregard and overthrow the doctrines irrevocably settled by the great controversy of the Civil War, which in their ultimate aspect find their consecration in the amendments to the Constitution which followed.

Nor is there any force in the suggestion that the existence of the power in Congress to legislate for the enforcement of a contract made by a state under the circumstances here under consideration is incompatible with the grant of origina jurisdiction to this court to entertain a suit between the states on the same subject. The two grants in no way conflict but co-operate and co-ordinate to a common end; that is, the obedience of a state to the Constitution by performing the duty which that instrument exacts. And this is unaffected by the fact that the power of Congress to exert its legislative authority as we have just stated it also extends to the creation of new remedies in addition to those provided for by section 14 of the Judiciary Act Sept. 24, 1789 (1 Stat. 81, c. 20, now section 262, Judicial Code [Act March 3, 1911, c. 231, 36 Stat. 1162; Comp. St. 1916, § 1239]) to meet the exigency occasioned by the judicial duty of enforcing a judgment against a state under the circumstances as here disclosed. We say this because we think it is apparent that to provide by legislative action additional process relevant to the enforcement of judicial authority is the exertion of a legislative and not the exercise of a judicial power.

This leaves only the second aspect of the question now under consideration.

(b) The appropriate remedies under existing legislation.

The remedy sought, as we have at the outset seen, is an order in the nature of mandamus commanding the levy by the Legislature of West Virginia of a tax to pay the judgment. In so far as the duty to award that remedy is disputed merely because authority to enforce a judgment against a state may not affect state power, the contention is adversely disposed of by what we have said. But this does not dispose of all the contentions between the parties on the subject, since on the one hand it is insisted that the existence of a discretion in the Legislature of West Virginia as to taxation precludes the possibility of issuing the order, and on the other hand it is contended that the duty to give effect to the judgment against the state, operating upon all state powers, excludes the legislative discretion asserted and gives the resulting right to compel. But we are of opinion that we should not now dispose of such question and should also now leave undetermined the further question, which as the result of the inherent duty resting on us to give effect to the judicial power exercised we have been led to consider on our own motion; that is, whether there is power to direct the levy of a tax adequate to pay the judgment and provide for its enforcement irrespective of state agencies. We say this because, impelled now by the consideration of the character of the parties which has controlled us during the whole course of the litigation, the right judicially to enforce by appropriate proceedings as against a state and its governmental agencies having been determined, and the constitutional power of Congress to legislate in a twofold way having been also pointed out, we are fain to believe that if we refrain now from passing upon the questions stated, we may be spared in the future the necessity of exerting compulsory power against one of the states of the Union to compel it to discharge a plain duty resting upon it under the Constitution. Indeed, irrespective of these considerations, upon the assumption that both the requirements of duty and the suggestions of selfinterest may fail to bring about the result stated, we are nevertheless of the opinion that we should not now finally dispose of the case, but because of the character of the parties and the nature of the controversy, a contract approved by Congress and subject to be by it enforced, we should reserve further action in order that full opportunity may be afforded to Congress to exercise the power which it undoubtedly possesses.

Giving effect to this view, accepting the things which are irrevocably foreclosed-briefly stated, the judgment against the state operating upon it in all its governmental powers and the duty to enforce it viewed in that aspect-our conclusion is that the case should be restored to the docket for further argument at the next term after the February rece s. Such argument will embrace the three questions left open: 1. The right under the conditions previously stated to award the mandamus prayed for. 2. If not, the power and duty to direct the levy of a tax as stated. 3. If means for doing so be found to exist, the right, if necessary, to apply such other and appropriate equitable remedy by dealing with the funds or taxable property of West Virginia or the rights of that state as may secure an execution of the judgment. In saying this, however, to the end that if on such future hearing provided for the conclusion should be that any of the processes stated are susceptible of being lawfully applied (repeating that we do not now decide such questions) occasion for a further delay may not exist, we reserve the right, if deemed advisable, at a day hereafter before the end of the term or at the next term before the period fixed for the hearing, to appoint a master for the purpose of examining and reporting concerning the amount and method of taxation essential to be put into effect, whether by way of order to the state Legislature or direct action, to secure the full execution of the judgment, as well as concerning the means otherwise existing in the state of West Virginia, if any, which by the exercise of the equitable powers in the discharge of the duty to enforce payment may be available for that purpose.

And it is so ordered.