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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 original jurisdiction to this court to entertain a suit between the States on the same subject. The two grants in no way conflict but coöperate and coördinate 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 of 1789 (1 Stat. 81, c. 20, now Section 262, Judicial Code) 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.
(6) 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 self-interest 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 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 con
cerning 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.
A Survey of International Relations between the United States and Ger
many, August 1, 1914 — April 6, 1917. Based on Official Documents. By James Brown Scott, Doctor of Jurisprudence of the University of Heidelberg, etc. New York: Oxford University Press. 1917. pp. cxiv, 390.
In this admirable survey Dr. Scott has given us the most comprehensive and most thoroughly documented exposition of the relations of the United States to the Great War which has been published. Specifically it treats of the diplomatic relations between the United States and Germany, but it contains in addition a full account of the genesis of the war, the efforts of the United States to maintain neutrality, and the position taken by this country on all the great questions of international law arising from a state of belligerency and the consequent restraints upon commerce and international intercourse on the oceanic highways.
Very appropriately, after the full text of the President's recommendation to Congress that a state of war be declared to exist between the United States and the Imperial German Government and the joint resolution of Congress upon this subject, the introduction to this volume is devoted to a general exposition of German conceptions of the state, international policy, and international law. Citations from sovereigns, statesmen, jurists and philosophers amply illustrate the distinctive and exceptional doctrines which have animated Prussian policy, and may be summed up in the words of Frederick the Great: “Know once and for all that in the matter of Kingcraft we take when we can, and that we are never wrong unless we have to give back what we have taken."
Before entering specifically into the subject matter indicated by the title of this volume, a chapter is devoted to the genesis of the war of 1914. Foremost in this brief but lucid historical sketch is placed the ambition of Prussia, the veritable and primary cause of the present war. The scheme of Bismarck first to exclude Austria from the circle of German States and then to use it as a satellite is of first importance in an
explanation of the causes of the existing situation. "Austria-Hungary, excluded from Germany and without chance of developing to the north or to the west," says Dr. Scott, "was to be given a field of exploitation to the south through the Balkan peninsula to the Ægean, until such time as 'the logic of events,' as Bismarck would say, should force the Imperial German Government to supplant Austria," a project which now appears practically realized. The assassination of the Archduke Francis Ferdinand and his morganatic wife on June 28, 1914, furnished the occasion for the armed intervention on the part of Germany necessary to complete the Prussian control of the destinies of the Balkan States and the practical absorption of Austria. "The time was about ripe for the wedge to be driven through the Balkans and to have its keen edge cut through to the Persian Gulf, . . . with a line of communication from the Kiel Canal to the Persian Gulf, through Berlin, Vienna, and Bagdad." The documentary evidence showing Germany's responsibility for the war is here indicated rather than definitely elaborated, which would require greater space than the author's plan could assign to it; but the sources of information are admirably tabulated, showing with precision the attitude of each of the Powers.
Turning now to the relations between the United States and Germany during the war, in a second chapter Dr. Scott gives an ample account of the neutrality of the United States and the effort of our government to maintain it. Not only was the usual proclamation of neutrality promptly issued; but, as is pointed out in his desire to avoid even the impression of unneutral opinion, the President made a special appeal to his fellow countrymen to be neutral in thought as well as in deed.
The difficulties encountered in maintaining this attitude were many and were greatly augmented by the conduct of the.Imperial German Government. These difficulties are discussed in this work with much detail in chapters on Censorship of Communications; Unlawful Seizure of Persons upon the High Seas; Restraints on Commerce; Sale of Munitions of War; Submarine Warfare; Reprisals and Retaliation; Belligerent Use of Neutral Flag; Mines, War Zones, and Blockade;. Status of Merchant Vessels; and many other matters relating to neutral and belligerent rights.
All of these discussions possess a double value, being at the same time of a historical nature, written with the authority of one who, as