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The consent of the commonwealth of Virginia was given to the formation of a new state on this condition. February 3 and 4, 1863, the general assembly of the restored state of Virginia enacted two statutes in pursuance of the provisions of which money and property amounting to and of the value | of several millions of dollars were, after the admission of the new state, paid over and transferred to West Virginia, The Constitution of the state of West Virginia when admitted contained these provisions, being §§ 5, 7, and 8 of article 8 thereof, as follows: "5. No debt shall be contracted by this state except to meet casual deficits in the revenue, to redeem a previous liability of the state, to suppress insurrection, repel invasion, or defend the state in time of

war."

"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.

"8. An equitable proportion of the public debt of the commonwealth of Virginia, prior to the first day of January, in the year one thousand eight hundred and sixty-one, 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 years." The "public debt" and the "previous liability" manifestly referred to a portion of the public debt of the original state of Virginia and liability for the money and property of the original state, which had been received by West Virginia under the acts of the general assembly, above cited, enacted while the territory and people afterwards forming the state of West Virginia constituted a part of the commonwealth of Virginia, though one may be involved in the other; while the provisions of §§ 7 and 8 were obviously framed in compliance with the conditions on which the consent of Virginia was given to the creation of the state of West Virginia, and the money and property were transferred. From 1865 to 1905 various efforts were made by Virginia,

through its constituted authorities, to effect an adjustment and settlement with West Virginia for an equitable proportion of the public debt of the undivided state, proper to be borne and paid by West Virginia, but all these efforts proved unavailing, and it is charged that West Virginia refused or failed to take any action or to do anything for the purpose of bringing about a settlement or adjustment with Virginia.

The original jurisdiction of this court was, therefore, invoked by Virginia to procure a decree for an accounting as between the two states, and, in order to a full and correct adjustment of the accounts, the adjudication and determination of the amount due Virginia by West Virginia in the premises.

But is is objected that this court has no jurisdiction because the matters set forth in the bill do not constitute such a controversy or such controversies as can be heard and determined in this court, and because the court has no power to enforce, and therefore none to render, any final judg ment or decree herein. We think these objections are disposed of by many decisions of this court. Cohen v. Virginia, 6 Wheat. 264, 378, 406, 5 L. ed. 257, 284, 291; Kansas v. Colorado, 185 U. S. 125, 46 L. ed. 838, 22 Sup. Ct. Rep. 552, May 13, 1907, 206 U. S. 46, 51 L. ed. 956, 27 Sup. Ct. Rep. 655; Missouri v. Illinois, 180 U. S. 208, 45 L. ed. 497, 21 Sup. Ct. Rep. 331, 200 U. S. 496, 50 L. ed. 572, 26 Sup. Ct. Rep. 268; Georgia v. Tennessee Copper Co. May 13, 1907, 206 U. S. 230, 51 L. ed. 1038, 27 Sup. Ct. Rep. 618; United States v. Texas, 143 U. S. 621, 36 L. ed. 285, 12 Sup. Ct. Rep. 488; United States v. North Carolina, 136 U. S. 211, 34 L. ed. 336, 10 Sup. Ct. Rep. 920; United States v. Michigan, 190 U. S. 379, 47 L. ed. 1103, 23 Sup. Ct. Rep. 742.

In Cohen v. Virginia, the Chief Justice said: "In the second class, the jurisdiction depends entirely on the character of the parties.

In this are comprehended 'controversies between two or more states, between a state and citizens of another state,' 'and between a state and foreign states, citizens, or subjects.' If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union."

And, referring to the 11th Amendment, it was further said:

"It is a part of our history that, at the adoption of the Constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the Federal courts formed a very serious

Consent to be sued was given when West Virginia was admitted into the Union, and it must be assumed that the legislature of West Virginia would, in the natural course, make provision for the satisfaction of any decree that may be rendered.

objection to that instrument. Suits were, what means the decree may be enforced. instituted, and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this Amendment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the Amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases; and in these a state may still be sued. We must ascribe the Amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the Amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The Amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states."

By the cases cited, and there are many more, it is established that, in the exercise of original jurisdiction as between states, this court necessarily in such a case as this has jurisdiction.

United States v. North Carolina and United States v. Michigan, supra, were controversies arising upon pecuniary demands, and jurisdiction was exercised in those cases just as in those for the prevention of the flow of polluted water from one state along the borders of another state, or of the diminution in the natural flow of rivers by the state in which they have their sources through and across another state or states, or of the discharge of noxious gases from works in one state over the territory of another.

It is, however, further insisted that this court cannot proceed to judgment because of an alleged compact entered into between Virginia and West Virginia, with the consent of Congress, by which the question of the liability of Virginia to West Virginia was submitted to the arbitrament and award of the legislature of West Virginia as the sole tribunal which could pass upon it. As we have seen, the Constitution of West Virginia, when admitted into the Union, contained the provision: "An equitable proportion of the public debt of the commonwealth of Virginia prior to the first day of January, in the year one thousand eight hundred and sixty-one, 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 . . and redeem the principal within thirty-four years." And it is said that, on May 13, 1862, the legislature of Virginia passed an act entitled "An Act Giving the Consent of the Legislature of Virginia to the Forma tion and Erection of a New State within the Jurisdiction of this State," by which consent was given to the creation of the proposed new state, "according to the boundaries and under the provisions set forth in the Constitution for the said state of West Virginia, and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861;" and that by the act of Congress the consent of that body was given to all those provisions which thus became a constitutional and legal compact between the two states. The act of May 13, 1862, was not made a part of the case stated in the bill, and its validity is denied by counsel for Virginia, but it is unnecessary to go into that, for when Virginia, on August 20, 1861, by ordinance provided "for the formation of a new state out of the territory of this state," and declared therein that "the new state shall take upon itself a just proportion of the public debt of the commonwealth of Vir

The object of the suit is a settlement with West Virginia, and to that end a determination and adjudication of adjudication of the amount due by that state to Virginia; and when this court has ascertained and ad-ginia prior to the 1st day of January, 1861," judged the proportion of the debt of the original state which it would be equitable for West Virginia to pay, it is not to be presumed on demurrer that West Virginia would refuse to carry out the decree of this court. If such repudiation should be absolutely asserted we can then consider by

to be ascertained as provided, it is to be supposed that the new state had this in mind when it framed its own Constitution, and that when that instrument provided that its legislature should "ascertain the same as soon as practicable," it referred to the method of ascertaining prescribed by

the authorities leave it, to the sound dis-
cretion of the court,-have been often af-
firmed in this court. Oliver v. Piatt, 3 IIow.
333, 411, 11 L. ed. 622, 657; Gaines v. Chew,
2 How. 619, 642, 11 L. ed. 402, 411. But
we do not mean to rule that the bill is
multifarious.
multifarious. It is true that the prayer
contains, among other things, the request,
"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 trustce
aforesaid," but it also prays that the

the Virginia convention. Reading the Virginia ordinance and the West Virginia constitutional provision in pari materia, it follows that what was meant by the expression that the "legislature shall ascertain" was that the legislature should ascertain, as soon as practicable, the result of the pursuit of the method prescribed, and provide for the liquidation of the amount so ascertained. And it may well be inquired why, in the fortythree years that have elapsed since the alleged compact was entered into, West Virginia has never indicated that she stood up-court "will adjudicate and determine the on such a compact, and, if so, why no step has ever been taken by West Virginia to enter upon the performance of the duty which such "compact" imposed, and to notify Virginia that she was ready and will-ience, and that the bill cannot properly be ing to discharge such duty.

amount due to your oratrix by the state of West Virginia in the premises." And we understand the reference to holding in trust to be in the interest of mere conven

ly, and, at all events, further consideration thereof may wisely be postponed to final hearing. Florida v. Georgia, 17 How. 491, 492, 15 L. ed. 188, 189; California v. Southern P. Co. 157 U. S. 249, 39 L. ed. 690, 15 Sup. Ct. Rep. 591.

The order will be

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 general assembly of Virginia of March 30, 1871, March 28, 1879, February 14, 1882, February 20, 1892, March 6, 1894, and March 6, 1900. According to the bill, Virginia, by the act of March 30, 1871, and subsequent acts, in an attempt to provide for the funding and payment of the public debt, having estimated that the liability of West Virginia was for one third of the amount 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 for the other third, which showed that Virginia held the old bonds, so far as unfunded, in trust for the holders or their assignees, to be paid by the funds expected to be obtained from West Virginia as her "just and equitable proportion of the public debt." The legislation resulted in the surrender of most of the old bonds to Virginia,

Demurrer overruled without prejudice to any question, and leave to answer by the first Monday of next term.

UNITED STATES, Appt.,

V.

CONRAD HEINSZEN and Gustav Brock-
mann, Trading as Partners under the Firm
Name of C. Heinszen & Company.
Constitutional law-delegation of power.

1. Congress, in dealing with the Philippine Islands, may delegate legislative authority to such agencies as it may select. Duties-ratification of illegal collection.

satisfied as to two thirds, and held as security for the creditors as to one third. 2. Aside from any question of intervenWe do not care to take up and discussing rights, Congress could, by the act of 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 ratithis 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 Cottenham, in Campbell v. Mackay, 1 Myl. & C. 603, that it is impracticable to lay down

any rule as to what constitutes multifariousness, as an abstract proposition; that each case must depend upon its own circumstances; and much must be left where

(32 Stat. at L. 691, chap. 1369), enacting a

tariff of duties for those islands.

Constitutional law-due process of law

ratification of illegal duties-effect of pending action.

3. The ratification by Congress by the act of June 30, 1906, of the illegal collection 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 dates of the ratification of the treaty of peace with Spain and the passage of the act of July 1, 1902, enacting a tariff of duties for those islands, does not deprive importers of their property without due process of law, in violation of U. S. Const., 5th Amend., even though they had commenced an action to recover the amount of the duties so collected before the ratifying statute was enacted.

[No. 580.]

other countries. This tariff was in force when the treaty of peace [30 Stat. at L. 1754] was signed (December 10, 1898), when the treaty was ratified (April 11, 1899), and was continued by the Philippine commission appointed by the President in April, 1900. Indeed, the civil government, as established in the islands by the President, either in virtue of his inherent authority or as a result of the power recognized and conferred by the act of Congress approved March 2, 1901 (31 Stat. at L. 910, chap. 803), continued the original tariff in force, except

Argued April 9, 10, 1907. Decided May 27, as to some modifications not material to be

A

1907.

PPEAL from the Court of Claims to review a judgment for the recovery of duties illegally collected on imports to the Philippine Islands which were levied under the President's order of July 12, 1898, between the dates of the ratification of the treaty of peace with Spain and the passage of the statute enacting the tariff of duties for those islands. Reversed.

The facts are stated in the opinion. Attorney General Bonaparte, Solicitor General Hoyt, Assistant Attorney General Van Orsdel, and Mr. George M. Anderson for appellant.

noticed, and formulated its provisions in the shape of a legislative act entitled "An Act to Revise and Amend the Tariff Laws of the Philippine Archipelago. And this tariff was in force in March, 1902, when it was expressly approved and continued by Congress. (32 Stat. at L. 54, chap. 140, U. S. Comp. Stat. Supp. 1905, p. 388.)

In May, 1901, the cases of De Lima v. Bidwell and Dooley v. United States were by this court decided. 182 U. S. 1, 222, 45 L. ed. 1041, 1074, 21 Sup. Ct. Rep. 743, 762. The first case involved the right to recover duties paid under protest to the collector of the port of New York upon sugar brought into the United States from the island of Porto Rico during the autumn of 1899, and subsequent to the cession of the island. The second case involved the right to recover the amount of certain duties on goods carinter-ried into Porto Rico from the United States between July 6, 1898, and May 1, 1900, the duties in question having been levied by au

Messrs. Frederic R. Coudert, Henry M. Ward, John G. Carlisle, and Paul Fuller for appellees.

Messrs. Hilary A. Herbert and Benjamin Micou for certain claimants having ests similar to those of appellees.

Mr. Justice White delivered the opinion of thority of the general in command of the

the court:

In an endeavor to clarify the consideration of this controversy we invert somewhat the order in which the facts have been stated in the findings below, and refer to previous rulings of this court pertinent to the subject in hand, besides supplementing the same by a reference to relevant matters of public history, of which we take judicial notice.

After the Philippine Islands came under the military control of the United States, the President, on July 12, 1898, issued an order providing for the enforcement by the military power in those islands of a system of tariff duties. This order, promulgated by the Secretary of War, was accompanied with an enumeration of the tariff proposed, and regulations for the collection of the same. However, for causes which need not be referred to, the tariff in question was subsequently modified, and did not go into operation until November, 1898.

The duties imposed by this tariff were levied on goods coming into the Philippine

army of occupation or subsequently by order of the President as commander in chief. In the first case (De Lima v. Bidwell) it was decided that, as the effect of the ratification of the treaty was to take the island of Porto Rico out of the category of foreign territory, within the meaning of that word as used in existing tariff laws of the United States, no right remained to enforce, against goods coming from Porto Rico into the United States, the previously enacted tariff of duties, although, considering the terms of the treaty and the relation of the island to the United States, Congress had power to impose a tariff on goods coming from that island into the United States. As a corollary of the doctrine announced in De Lima v. Bidwell, in the second case (Dooley v. United States) it was held that whilst the President, as commander in chief, had authority to impose tariff duties in Porto Rico on goods coming into that country from the United States prior to the ratification of the treaty, no such executive power existed after that ratification. It was con

sequently held that none of the duties paid prior to the ratification of the treaty could be recovered, whilst those paid subsequently could be.

In the following year (December 2, 1901) another case, entitled Dooley v. United States, was decided. 183 U. S. 151, 46 L. ed. 128, 22 Sup. Ct. Rep. 62. That case involved the validity of tariff duties levied in Porto Rico on goods brought into that island from the United States, the duties in question having been imposed after the ratification of the treaty, and in and by virtue of the act of Congress known as the Foraker act. Applying the principles announced in the previous cases just referrred to, it was held that the duties were lawful because, although collected after the ratification, they were imposed not simply by virtue of the authority of the President, acting under the military power, but in conformity to a valid act of Congress.

And on the same day with the foregoing the case of Fourteen Diamond Rings v. United States (The Diamond Rings) was decided. 183 U. S. 176, 46 L. ed. 138, 22 Sup. Ct. Rep. 59. That case involved the validity of tariff duties levied on diamond rings brought from the Philippine Islands into the United States. Adhering to the doctrines settled by the prior rulings, it was held that, as the Philippine Islands, by the ratification of the treaty, had ceased to be foreign within the meaning of the tariff laws, the imposition of the duties complained of was unlawful. In the course of the opinion the effect of the treaty as applied in the previous cases to Porto Rico was pointed out, and the status of the Philippine Islands in virtue of the treaty was, in effect, held to be controlled by the former decisions.

out of the reach of the doctrine announced in the previous cases which we have reviewed, and it was therefore decided that the President was without power, after the ratification of the treaty, in the absence of express authority from Congress, to impose the tariff duties in question. A contention on the part of the United States that Congress, by the 2d section of the act approved July 1, 1902 (entitled "An Act Temporarily to Provide for the Administration of the Affairs of Civil Government in the Philippine Islands, and for Other Purposes") [32 Stat. at L. 691, chap. 1369], had ratified the action of the President in imposing and collecting the duties in controversy, therefore no recovery could be had, was held to be unfounded, for grounds stated in the opinion, to which we shall hereafter advert. The case was heard upon rehearing, and in a decision announced on May 28, 1906, the views previously entertained by the court were reiterated and adhered to. 202 U. S. 484, 50 L. ed. 1117, 26 Sup. Ct. Rep. 728. In the month following (June, 1906) Congress passed an act containing a provision which reads as follows (34 Stat. at L. 636, chap. 3912):

"That the tariff duties, both import and export, imposed by the authorities of the United States or of the provisional military government thereof in the Philippine Islands prior to March eight, nineteen hundred and two, at all ports and places in said islands, upon all goods, wares, and merchandise imported into said islands from the United States, or from foreign countries, or exported from said islands, are hereby legalized and ratified, and the collection of all such duties prior to March eight, nineteen hundred and two, is hereby legalized and ratified and confirmed as fully to all intents and purposes as if the same had, by prior act of Congress, been specifically authorized and directed."

In April, 1905, the two cases of Lincoln v. United States and .Warner, B. & Co. v. United States were by this court decided. 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 colrendered 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

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