Virginia's counsel estimated that West Virginia should assume $9,652,768.83 of the original debt.' In addition, she should pay interest from January 1, 1861, until the final discharge of the obligation.

In West Virginia's answer the history of the case was reviewed in justification of the state's separation from Virginia and of its delay in payment of the debt; the points previously urged in the contention over jurisdiction were repeated and new arguments were introduced. Virginia had no right, so the argument ran, to receive the payment of West Virginia's portion of the debt after she had by her refunding acts released herself from all liability beyond her own admitted share. Virginia was debarred also because she had no direct interest in the suit.2 She could make no accounting as to the subject-matter of the controversy because her creditors had already agreed as to the amount which she should assume, and because the new state's liability, "if any exists," is direct to the creditors and not to Virginia. This is not a general debt, representing expenditures which give equal benefit to all parts of the state, but a local one covering internal improvements nine-tenths of which are confined to Virginia, and no rule of public law requires the apportionment of such a debt on the basis of taxable property. This case, moreover, is controlled by a special agreement, the Wheeling ordinance of August 20, 1861, which is a binding contract between the states. This ordinance, which must be applied as a whole, not merely in part, specifies a particular method of ascertaining the amount which West Virginia should pay. It does not assume any part of the debt as such, but adopts a method of calculation which takes into view the equalization of past inequalities as well as the assumption of future liabilities. Granted, however, that the Wheeling ordinance should be set aside, then the effect would be to place the ascertainment of the debt in the hands of the legislature of West Virginia according to the provision of the new state's constitu

It is well to notice in this connection that, in pleading before the Supreme Court, Virginia does not urge the two-thirds division as the proper apportionment of the debt, though in her own laws the finality of this division is constantly assumed. 'New Hampshire v. Louisiana, 108 U. S. 76.

tion. As to paying interest from January 1, 1861, there can be no such obligation resting on West Virginia, since the only agreement at the time was that West Virginia should pay the "accruing interest," to be dated from the transfer of the debt. This, in brief, was the substance of West Virginia's case, though various minor objections of a technical sort were advanced, as, for instance, that Virginia's demand was "multifarious," and that the suit, having been neglected for so long a period, was now debarred by laches.

The Supreme Court, adopting more the tone of a mediator than a judge, based its opinion on the high grounds of general justice, and treated the subject in a broad and untechnical way.' The provision in the constitution of the would-be state, the consenting act of the "restored" Virginia legislature, and the admission statute passed by Congress were held by the court to have created a contract between the two states calling for the payment by West Virginia of a just and equitable proportion of the debt. This contract was not affected by the Wheeling ordinance, inasmuch as none of these three acts mention the ordinance, and since an application of the ordinance would defeat the broad purpose of securing an "equitable" settlement. If any doubt exists on this point, the circumstances at the time of separation were such that Virginia should have the benefit of the doubt. Regarding the suggestion of dividing the liability minutely according to territory, in accordance with the location of the improvements, the court declared that the debt was general, designed for the ultimate good of the whole state, that many of the improvements in Virginia were intended for ultimate extension westward, and on this ground it refused to lose itself in futile detail in an attempt to localize the burden for each transaction which the debt represented. The claim that West Virginia's constitution had made her legislature the sole agency for settling the debt was overruled, and the court then.

"The case is to be considered in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either state alone." 220 U. S. 1, p. 27.

proceeded to the consideration of acts subsequent to the formation of the contract. The objection that because of her funding acts Virginia had no interest in the suit, having discharged herself of all liability to the deferred creditors, was waved aside as a mere technical argument. West Virginia's liability was declared to be a "deep-seated equity," not discharged by changes in the form of the debt, and the suit was held to be of deep concern to Virginia's honor and credit in spite of the fact that she would turn over the proceeds.1

In figuring the proportion the court made scant use of the master's voluminous findings, and disregarded the Wheeling ordinance. The master's estimate of the value of real and personal property in the two states in June, 1863, exclusive of slaves, was taken as an equitable basis of division, and the total principal to be apportioned was declared to be $30,563,861.56, thus deducting a sum of $3,333,212.26 which Virginia had virtually extinguished by a composition with her creditors. Placing Virginia's share of this reduced total at 76.5 per cent and West Virginia's at 23.5 per cent, the amount of principal assigned to West Virginia was $7,182,507.46.3

The decision in this form was not a final decree. One point in particular was left open, namely, the difficult question of West Virginia's liability to pay interest. The court recom

1 Compare United States v. Beebe, 127 U. S. 338, 342; United States v. Nashville, Chattanooga and St. Louis Ry. Co., 118 U. S. 120, 125, 125.

"It was to Virginia's advantage that slaves should be left out of the calculation in determining the total property values as a basis for apportioning the debt, inasmuch as slave property was of much less importance in West Virginia than in Virginia.

3“ Virginia with the consent of her creditors has cut down her liability to not more than two-thirds of the debt, whereas at the ratio shown by the figures her share, subject to mathematical correction, is about .7651. If our figures are correct, the difference between Virginia's share, say $25,931,261.47, and the amount that the creditors were content to accept from her, say $22,598,049.21, is $3,333,212.26; subtracting the last sum from the debt leaves $30,563 861.56 as the sum to be apportioned. Taking .235 as representing the proportion of West Virginia we have $7,182,507.46 as her share of the principal debt." 220 U. S. p. 35.

Though not involving any decision regarding interest, the opinion of March, 1911, hinted that Virginia's claim for interest dating from January 1, 1861, was extreme. "It would be a severe result," said Justice Holmes in delivering the opinion, "to capitalize charges for half a century-such a thing hardly could happen in a private case analogous to this. Statutes of limitation, if nothing else, would interpose a

mended that a conference between the states be held for the purpose of making final adjustments, and suggested that the case, being one between "great states," called for forbearance on both sides. It was understood that if the states should be unable to arrive at a friendly settlement, the Supreme Court would impose a final decree based upon a master's calculation. Efforts were made by the Virginia commission to secure such a compromise, but West Virginia delayed two years before taking action looking towards adjustment, pleading meanwhile that the legislature alone could act, and that in the special session of May, 1911, called for another purpose, the debt could not legally be considered.'

On February 21, 1913, at its regular session the West Virginia legislature tardily created a commission of eleven members empowered to "negotiate. . . for a settlement of West Virginia's proportion of the debt of the original commonwealth," requiring, however, that the commission should determine nothing finally, but should report its action to the governor who should then convene the legislature for the "consideration" of the question. This commission was organized in June, 1913, and a joint session with the Virginia commission was held at Washington July 25-26. As neither commission had any terms to submit in the form of a definite proposition, the session adjourned without result. A long delay again followed, and the West Virginia commission proceeded to the slow process of "preparing a proposition," probably intending after careful and deliberate study of the subject to submit the offer of a lump sum for full settlement. Virginia twice petitioned the Supreme Court to proceed to a final hearing of all points left open in March, 1911, but the court, satisfied of the bona-fide intention of West Virginia to make an adjustment, denied both motions.2

On March 4, 1914, the commissions from the two states again met in Washington, and the negotiations hinged upon a proposition" offered by West Virginia. The men from the

1 Proceedings in the Virginia Debt Case, printed by order of A. A. Lilly, attor ney-general of West Virginia. (Charleston, W. Va., 1913.)

2222 U. S. 17 (October, 1911); 231 U. S. 89 (November, 1913).

new state claimed the " discovery" of an extensive series of credits and assets which would materially reduce the amount of their obligation. It is impossible here to enumerate these items, but they consisted mainly of cash on hand in the Virginia treasury in various funds, railroad and bank stocks sold by Virginia without West Virginia's consent though they had been acquired by funds common to both states, interest and dividends on investments etc. The valuation of these securities as of January 1, 1861, was estimated at $20,810,357.98, and West Virginia's net share of these assets (.235 minus certain minor reductions) was figured at $4,855,312.18. After subtracting this amount from West Virginia's share as fixed by the Supreme Court ($7,182,507.46), the commission announced that the balance, $2,327,195.28, would be the proper sum to be paid by the new state as a final satisfaction. In case Virginia should accept, the commission offered to recommend a called meeting of the legislature to vote this sum. The offer was rejected by the Virginia commission.'

In the following month, April, 1914, the case was reopened before the Supreme Court on a motion of West Virginia to 'file a supplemental answer." West Virginia's case centered on these "newly discovered" credits. In rejoinder Virginia's counsel urged that after forty years of controversy and eight years of litigation before the Supreme Court, after all the documents and records had been exhaustively ransacked and elaborate findings presented by the special master, and after the Supreme Court in a "final" hearing of the case had fixed West Virginia's share of the principal at seven millions, it was no longer in order for the defendant state to present a totally new line of defense which was open to her from the first, and thus to prolong the litigation."

Chief Justice White, in delivering the opinion of the court of June 8, interpreted the decision of 1911 as intended to leave open merely the question of interest, and any changes

1 Statement of Negotiations between the Debt Commissions of the Two States (printed by order of W. Va. Com., March, 1914).

2 Brief for Complainant, April 13, 1914 (Appeals Press, Richmond).