*617

resulting in an explosion, created, in the mind of the Chief of Ordnance, a reasonable apprehension of danger in the use of the gun, and in his judgment required that it be modified and that it be subjected to an additional firing test, before it could be accepted as having satisfactorily passed the test prescribed by the contract.

[3] The report of the Chief of Ordnance to the Secretary of War on the result of this contract test is dated November 3, 1899, and is as follows:

"In the opinion of this office, while the type 5-inch gun is not deemed as satisfactory a gun as is desirable for service, yet its test has apparently met the contract requirements, and if certain modifications in the gun and its carriage shall be made in their further manufacture to remedy defects developed in the test, and in other respects be made to meet more fully the requirements of the department, to which propositions the company willingly agrees, it is recommended that the 5-inch type gun and its mount be accepted, subject, however, to the condition that, in view of the moderate pressure to which this gun has been subjected, the department fire it 100 additional rounds, or less, as it may deem expedient, with charges giving higher pressures and assimilating more nearly the pressures that would be exIperienced in actual service, and that in the further manufacture of the guns they shall be modified, at the expense of the company,*so as to remedy any further defects that may ve developed in these additional firings."

The claimant's contention is rested largely upon this clause in the above paragraph, viz.: "Yet its test has apparently met the contract requirements." And their argument is that the test which the gun must meet was prescribed by the contract; that the facts found, and especially this clause, show that it proved equal to the required test; that the subsequent annulling of the contract by the Chief of Ordnance, with the approval of the Secretary of War "was not made and taken in good faith, but under a mistake so gross as to justify an inference of bad faith," and that, therefore, the claimants are entitled to recover the damages prayed for.

If this expression, so much relied upon, stood as the unqualified conclusion of the Chief of Ordnance and had been approved by the Secretary of War, the interpretation claimed for it might be justified, but the contextual setting of the clause shows clearly that in the opinion of the Chief of Ordnance "defects [had] developed in the test," which could be remedied only if certain modifications were made in the manufacture of both the gun and carriage, and that his understanding when making the report was that the claimants concurred in this conclusion and willingly agreed to conform to it.

of invention which, modified and improved, would make of it a weapon of value to his country and that he was eager to lend official assistance to its further development, which he believed the claimants were equally eager to receive and profit by. In the interpretation most favorable to the claimants the report is an acceptance conditioned upon development and improvement of the gun which the Chief of Ordnance thought possible, but which conditions, as we shall see, the claimants, perhaps because of less confidence in their invention, never attempted to satisfy.

On January 31, 1900, this report of the Chief of Ordnance was approved by the Secretary of War and a week later the decision and recommendation thus approved were communicated to the claimants.

But, instead of the co-operation which the Chief of Ordnance thought assured, the government next heard from the claimants through lawyers and then through a letter from the claimants themselves, asking the Secretary of War to suspend further action until argument could be heard, and stating that "they had not as yet assented to any modification of the gun or carriage."

The Secretary of War replied to the lawyers that there was no question before him open to argument, but what, if any, reply was made to the letter of the claimants does not appear.

However, long prior to this, on May 18, 1899, after the test firing had been suspended and three months before it was completed, it was suggested by the government to the claimants that they should furnish "the mathematical computations and engineering considerations upon which their claim of strength of construction and other qualities of their gun were based." No notice was taken of this suggestion for almost a year, and not until after claimants were officially notified of the approval by the Secretary of War of the report of the Chief of Ordnance of November 3, 1899. Thereafter, on February 17, 1900, the claimants notified the Chief of Ordnance that they had employed two expert mathematicians to work out the various problems connected with the construction of their gun, and suggesting that they would like to have "an army officer of practical experience with artillery" assigned to co-operate with their selected experts and that they would compensate him for the service. Two days later the government acceded to this and authorized a major in the army to join in making the computations as suggested by the claimants.

620

(246 U. S. 565)

COMMONWEALTH OF VIRGINIA v. STATE OF WEST VIRGINIA et al. (Submitted March 6, 1917. Decided April 22, 1918.) No. 2.

DICTION.

The elementary rule that judicial power essults of its exertion applies to the judgments sentially involves the right to enforce the rerendered in suits between states of which the Supreme Court has original jurisdiction. 2. JUDGMENT 519 - CONCLUSIVENESS MATTERS CONCLUDED.

On proceedings by the commonwealth of Virginia for enforcement against the state of West Virginia of a judgment requiring payment of money rendered by the Supreme Court, the authority of the court to render the judgment is concluded, and cannot be reopened. 3. STATES 15-ACTIONS BETWEEN-JUDGMENT-VALIDITY.

tions in the construction."

This discussion of the findings of fact by the Court of Claims leads us unhesitatingly to the conclusion that the claim that the Secretary of War and the Chief of Ordnance acted in bad faith or under a gross mistake is wholly unfounded and gratuitous; that, on the contrary, they dealt candidly, generously, even helpfully, with the claimants, and that the annullment of the contract under the circumstances was abundantly justified. The cause of the misfortune, which the claimants undoubtedly suffered, is not to be found in their treatment by the officials of the War Department but in their own refusal, from whatever cause, to accept the encouraging suggestion of the Chief of Orddance that the Department was willing, by generous dealing and co-operation, to assist them in carrying forward their experimental un to a successful development.

[4] The claims made in argument that by various delays on its part the government, In some indefinite way, waived its right to annul the contract, and that this right to annul was suspended until report should be made on the technical problems involved, by the experts selected by the claimants, it is true with the co-operation of the government, but almost a year before, cannot be seriously considered. In the matter of delays the claimants were as much at fault and more, than the government, and the delay of the technical report for almost a year was reasonable ground for assuming that no report was likely to be made, or that if made it would not be favorable to the acceptance of the gun, which last, as we have seen, is shown by the finding of facts by the Court of Claims, to have been proved to be the case. The judgment of the Court of Claims

must be

Affirmed.

conferred on the Supreme Court by the Constitution did not embrace the right of one state to recover a judgment in a mere action for debt against another, as the controversy arose out of the carving of West Virginia from Virginia, and the expressly assumed obligation of the newly created state to pay the just portion of the preexisting debts of Virginia. 4. STATES

FORCEMENT.

213-JUDGMENT AGAINST-EN

In view of the powers of the Privy Council, exercised prior to the Revolution of the American colonies, and the intent apparent in the adoption of the Constitution to remedy the condition under the Articles of Confederation under which Congress had no power to enforce the the states, a judgment rendered against a state federal jurisdiction over controversies between by the Supreme Court, in the exercise of the original jurisdiction given that tribunal in cases in which a state shall be a party, may be enforced against the state as such, and, to the extent necessary for so doing, authority may be exerted over the governmental powers and agencies possessed by the state.

5. STATES 15-AGREEMENTS BETWEEN AUTHORITY OF CONGRESS.

In view of 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, Congress has legislative authority to enforce an agreement by the state of West Virginia to assume its just proportion of the debts of Virginia, out of which the state of West carrying out of a contract being implied from Virginia was carved; the duty of exacting the the grant of power to determine whether the contract should be made.

6. COURTS 304- SUPREME COURT - JURIS

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.

[1-3] 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.3 Nor is there room for contending to the contrary because in all the cases cited the states against which judg

New York v. Connecticut, 4 Dall, 1, 3, 6, 1 L. Ed. 715; New Jersey v. New York, 3 Pet. 461, 7 L. Ed. 741; Id., 5 Pet. 284, 8 L. Ed. 127; Id., & Pet. 323, 8 L. Ed. 414; Rhode Island v. Massachusetts, 7 Pet. 651, 8 L. Ed. 816; Id., 11 Pet. 226, 9 L. Ed. 697; Id., 12 Pet. 657, 9 L. Ed 1233; Id., 13 Pet. 23, 10 L. Ed. 41; Id., 14 Pet. 210, 10 L. Ed. 423: Id., 15 Pet. 233, 10 L. Ed. 721; Id., 4 How. 591, 11 L. Ed. 1116: Massachusetts v. Rhode Island, 12 Pet. 755, 9 L. Ed. 1272; Missouri v. Iowa, 7 How. 659, 12 L. Ed. 861; Id., 10 How. 1, 13 L. Ed. 303; Florida

478, 15 L. Ed. 181;

v. Georgia, 11 How. 293, 13 L. Ed. 702; Id., 17 How. Alabama v. Georgia, 23 How. 505, 16 L. Ed. 556; Virginia v. West Virginia, 11 Wall. 39, 20 L. Ed. 67; Missouri v. Kentucky, 11 Wall. 395, 20 L. Ed. 116; South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782; Indiana v. Kentucky, 136 U. S. 479, 10 Sup. Ct. 1051, 34 L. Ed. 329; Id., 159 U. S. 275. 16 Sup. Ct. 320. 40 L. Ed. 149; Id., 163 U. S. 520, 16 Sup. Ct. 1162, 41 L. Ed. 250; Id., 167

Nebraska

U. S. 270, 17 Sup. Ct. 999, 42 L. Ed. 164; v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186; Id., 145 U. S. 519, 12 Sup. Ct. 976, 36 L. Ed. 798; Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 I. Ed. 55; Id., 151 U. S. 238, 14 Sup. Ct. 333, 38 L. Ed. 145; Id., 202 U. S. 59, 26 Sup. Ct. 571, 50 L. Ed. 934; Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537; Id., 158 U. S. 267, 15 Sup. Ct. 818, 39 L. Ed. 976; Missouri v. Iowa, 160 U. S. 688, 16 Sup. Ct. 433, 40 L. Ed. 583; Id., 165 U. S. 118, 17 Sup. Ct. 290, 41 L. Ed. 655; Tennessee v. Virginia, 177 U. S. 501, 20 Sup. Ct. 715, 44 L. Ed. 863; Id., 190 U. S. 64, 23 Sup. Ct. 827, 47 L. Ed. 956; Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497; Id., 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572; Id., 202 U. S. 598, 26 Sup. Ct. 713, 50 L. Ed. 1160; Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838; Id., 206 U. S. 46, 27 Sup. lina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448; Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155, 49 L. Ed. 372; Id., 197 U. S. 577, 25 Sup. Ct. 580, 49 L. Ed. 881; Louisiana v. Mississippi, 202 U. S. 1, 26 Sup. Ct. 408, 571, 50 L. Ed. 913; Washington v. Oregon, 211 U, S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 L. Ed. 969; Missouri v. Kansas, 213 U. S. 78, 29 Sup. Ct. 417, 53 L. Ed. 706; Maryland v. West Virginia, 217 U. S. 1, 30 Sup. Ct. 268, 54 L. Ed. 645; Id., 217 U. S. 577, 30 Sup. Ct. 630, 54 L. Ed. 888; Id., 225 U. S. 1, 32 Sup. Ct. 672, 56 L. Ed. 955; North Carolina v. Tennessee, 235 U. S. 1, 35 Sup. Ct. 8, 59 L. Ed. 97; Id., 240 U. S. 652, 36 Sup. Ct. 604, 60 L. Ed. 847; Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed.

Ct. 655, 51 L. Ed. 956; South Dakota v. North Caro

ments 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 its 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 gov

ernmental 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.

[4] 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.4

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

Supervisors v. United States, 4 Wall. 435, 18 L. Ed. 419; Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L. Ed. 403; City of Galena v. Amy, 5 Wall. 705, 18 L. Ed. 560; Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed. 768; Walkley v. City of Muscatine, 6 Wall. 481, 18 L. Ed. 930; Labette County Commissioners v. Moulton, 112 U. S. 217, Sup. Ct. 108, 28 L. Ed. 698; County Commissioners of Cherokee County v. Wilson, 109 U. S. 621, 3 Sup. Ct. 352, 27 L. Ed. 1053.

the Constitution 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.