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ported cases cited in the margin, in the opinion in one of which (234 U. S. 117), & 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.
But, notwithstanding the opportunity given to present its claims and to have their merits determined, West Virginia is either not satisfied with the judgment of the court, or is unwilling, as defeated litigants, whether private or public, usually are unwilling, to pay the judgment rendered against it. The merits of the case do not concern us any more than they now concern the court. The question at issue is the enforcement of the judgment in behalf of the State of Virginia against the State of West Virginia, a question in which Virginia is interested to the extent of twelve million dollars and more, in which West Virginia is interested in a like sum, in addition to its amour propre, in which the court is interested, as execution of a judgment is supposed to inhere in judicial power, and in which the publicist, both at home and abroad, is interested, in that heretofore, whether or not execution by force, if need be, is essential to judicial power, force has not yet been used to compel compliance by a State of the American Union with a judgment rendered against it. In the case of a judgment had in 1860 by Kentucky against Dennison (24 Howard 66, 109–110), then Governor of Ohio, held because thereof to be a judgment against the State of Ohio, Mr. Chief Justice Taney, speaking for a unanimous court, said: “But if the Governor of Ohio refuses to discharge this duty, there is no power delegated to the General Government, either through the Judicial Department or any other Department, to use any coercive means to compel him.”
It is not the purpose of the present comment to discuss the means by which execution is to be enforced, as the court has now held it can be, a question which is to be argued by learned counsel for the two States in the February term of the Supreme Court and to be decided by that tribunal, unless in the meantime the judgment should be executed to the satisfaction of the State of Virginia. The importance of the question is the reason for its statement in this form, and not the least
purpose of this comment is to invite the reader's attention in advance to the judgment of the court, to be pronounced after argument at its next term.
The learned Chief Justice, considering it elementary that “judicial power essentially involves the right to enforce the results of its exertion,” asks and addresses himself in the course of a closely reasoned opinion,
"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?" and "2. What are the appropriate remedies for such enforcement?” Under the second head he considers “(a) The power of Congress to legislate for the enforcement of the obligation of West Virginia," and "(b) The appropriate remedies under existing legislation.”
It is to be expected that the views of Virginia and West Virginia differ on these subjects, otherwise the bill would not have been filed in the first instance, and the difference as to the nature and effect of a judgment exists between them, otherwise the question of its enforcement would not be before the court. The views of each of the litigants are thus expressed by the Chief Justice:
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 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.
The court is apparently of the decided opinion that the consent to suit contained in Article II, Section 2, of the Constitution carries with it the duty to comply with the consequences of suit, and that a State, because of subjection to suit, is subjected to the enforcement of judgment against it had in a judicial proceeding to which the judicial power extends.
Under the second heading the Chief Justice examines the remedies appropriate to the case, which should not be summarized lest, in so doing, it lose its point and effect, and thus concludes his own opinion and the unanimous opinion of the court:
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 recess. 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.
It will be observed that the court does not decide that any one of the methods mentioned in this paragraph is appropriate, but contents
1 For the text of this portion of the opinion, see post, pp. 669-671.
itself with a statement that the judgment is binding upon West Virginia, and that West Virginia should be forced in some appropriate way to comply with its application. And in so doing the court no doubt acted wisely, because, on a former occasion, Andrew Jackson, then President of the United States and not averse to the use of physical force, is reported to have said in reference to the decision of the Supreme Court against the State of Georgia in the case of Worcester o. Georgia (6 Peters 515), decided in 1832, “John Marshall has made his decision; now let him enforce it."
From another point of view, the opinion of the Chief Justice is as interesting as it is important, in that he shows that the action of the King in Privy Council, deciding controversies between colonies by judicial procedure, was the precedent both for the Articles of Confederation, investing the Congress of the United States with that power, and for investing the Supreme Court of these United States with the power and the duty, wherever the judicial power is properly invoked, to decide controversies between the States of the American Union.
JAMES BROWN Scor.
CHRONICLE OF INTERNATIONAL EVENTS
Abbreviations: Ann. sc. pol., Annales des sciences politiques, Paris; Arch. dipl., Archives Diplomatiques, Paris; B., boletín, bulletin, bolletino; P. A. U., bulletin of the Pan American Union, Washington; Cd., Great Britain, Parliamentary Papers; Clunet, J. de Dr. Int. Privé, Paris; Current History — Current History — A Monthly Magazine of the New York Times; Doc. dipl., France, Documents diplomatiques; B. Rel. Ext., Boletín de Relaciones Exteriores; Dr., droit, diritto, derecho; D.O., Diario Oficial; For. rel., Foreign Relations of the United States; Ga., gazette, gaceta, gazzetta; Int., international, internacional, internazionale; J., journal; J.O., Journal Officiel, Paris; L., Law; M., Magazine; Mém. dipl., Mémorial diplomatique, Paris; Monit., Belgium, Moniteur belge; Martens, Nouveau recueil général de traités, Leipzig; Official Bulletin, Official Bulletin of the United States; Q., Quarterly; Q. dip., Questions diplomatiques et coloniales; R., review, revista revue, rivista; R. pol. et parl. Revue Politique et Parlementaire; Reichs G., ReichsGesetzblatt, Berlin; Staats., Staatsblad, Netherlands; State Papers, British and Foreign State Papers, London; Stat. at L., United States Statutes at Large; Times, The Times (London).
January 28, 1917, for the exchange of parcel post packages,
without declared value. Text: B. Rel. Ext. (Ecuador) 9:1589. 15 ECUADOR - ITALY. Exchange of ratifications of treaty of arbitra
tion signed February 25, 1911: Text: B. Rel. Ext. (Ecuador)
approved the arbitration treaty between Brazil and Uruguay
the two nations. P. A. U., 46:250.
of the Society held in Havana. P. A. U., 46:258. February, 1918. 1 JAPAN. Americans visiting Japan are required to have their
passports viséd by a Japanese consular or diplomatic official