The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-01-05

Il Va = UNIV Joou1ts
parties, and praying judgment against Il
State for the amount Of the claim.
The Second Auditor made no formal al
swer to the petition, but there is filed In tt
cause a certificate from him showing the a
rearages Of the annuity, or tdiyidends,' = {
he describes them, to be 81. 900, as Of the i
day of July, 1871. being the exact sum d
manded by the petitioner.
;. The Auditor of Public Accounts flied a
answer to the petition resisting payment {
the claim on several grounds; all of whic
will appear in the answer. T..s.. .f.c1I
The Circuit Court held "that the plair
tiff, at the time of fling her petition in th
cause, bad a valid and subsisting claim again:
the State for the arrears of said unpaid div
dends amounting TO the sum of 1920. Br
the said claim Of the plaintiff being. for al
rears OF dividends upon q fixed, asceftaine(
and recognized debt Of the State, ithe tim
and manner Of payment whereof necessariI
depend upon considerations addressin
themselves to the wisdom of the General As
sembly, and BY the Constitution and laws
reserved for determination to its discretion
and the General Assembly, not only hayin,
failed to make any appropriation out o
which either Of the Auditors could pay th
claim Of the plaintiff, but having sffirma
lively declared that in the present fnaucia
condition of the state the said claim eanno
be paid, nor any part thereof, except upol
terms of compromise and abatement, whicl
the plaintiff declines to accept, the court /
further of opinion that it has no authority II
grant the prayer of. the PLAINTIFF; and tn
petition was therefore dismissed with costs
e this nr6or i,,Inroork ool
has been taken to this court, on which tn,
case is now before U.s. g.a.., 8,
.a.r THE QUESTIONS
which have been discussed here are, in effect
the following:
/. Does the State of Virginia now owe tn,
entire debt claimed by the petitioner?
Q. If she does, can she be sued for it BY
her own citizen in her own courts?:
Unless the affirmative OF both these propo
sitions can be maintained, the Judgment o.
the Circuit Court must be affirmed.
The Circuit Court held, as We have seen
that the petitioners claim for the entire debl
" was valid and subsisting claim," but il
has been earnestly contended by the late At
that the dismemberment oil
the State of Virginia, and the formation of o
new State called West Virginia out Of a por.
tion of her territory, has discharged the
State of Virginia from this debt as now
that the old debt of Virginia con.
tracted prior to her dismemberment, if not
wholly extinguished by the events leading
to, attending, and following her dismember-
ment, is not now due from her, but only
ratd6ly from the two States.
Were this question between the two
States alone should not question the con-
Guiding part of the proposition. My opinion
IS that justice, public law, and common
honesty, alike require that the
..... OLD DEBT OF VIRGINIA
should be 80 adjusted between the two States
hat each shall bear her proper burden.
Publicists tell us that "When kingdom
divides by common consent into two or more
distinct commonWealths the public patri-
mony, with all the debts and membranes
upon them, ought to be equally shared among
.hem."-Puffendorf, book 8, chapter II, page
$40. a 1sa#
In the case of Virginia, her PARTITION
whatever the fact may be, about which,
with honest and candid minds, there can be
no doubt-seems to have assumed the forms
of consent; and the fact Of partition, whe-
ther wrongful OF not, has been acknowledged
By both States, and must be met as fact.
The principle as to liability for the old debt is
the same, however, whether the new State
was created by consent or violence. 1t is,
needless now to inquire by what
means the separation was effected. My own
opinion is that It was accomplished by acts
of injustice and spoiation not exceeded in
atrocity by the partition OF Poland. These
are matters, however, to be disposed OF by
the States inter Sese, and are not properly
before us as q judicial tribunal adjudicating
q mere question of private right. We,a
court, are to deal with
THE CONTRACT BEFORE Us,
to construe its terms, to ascertain its erect,
and to decide whether the State of Virginia,
as between herself and her creditor, is
bound thereby. This is the question for us
TO decide. There can be no doubt that
prior to the dismemherment of the State she
,cas 80 bound. This has been denied by no
one: and has been over and again ackno owl.
edged BY the State herself, not merely
by her solemn "compact" aforesaid
and her legislation. to secure a
faithful compliance with its terms,
but also by the punctual payment of the
" DIVIDEND" or annuity, down TO the COM
of the war, by its continued pay.
ment after the war; and after the dismem.
berment of the State down to the year 1860,
by her recognition of the entire old public
debt of the State as her debt; as between her
self and her creditors In March, 1866, BY
funding ALI the interest; thereon required to
be funded by creditors; by a like recognition
of the old debt in section 19, article 10, oEthe
Constitution Of the State, and by other legis-
Iation. :: = E@st
I concur, therefore, entirely with SO much
of the opinion Of the learned judge OF the
Circuit Court as declares that the petitioner
I" has valid and subsisting claim" agaiSst
the State for the amount of her claim (S2, ,220g
that as between the State and the creditor she
State still owes this debt, and the whole OF
it. But do not think it proper to express
this opinion as to the liability of'Virginla fol
the whole of this debt without saying at Abe
same time that my opinion is precisely she
same as to the --..'.,,,,....
LIABILITY OF WEST VIRGINIA.
She. too, as between herself and the creditor
is bound Tor the whole debt. a portion OF
debtor State may not, In my opinion, by sep
aratipg herself from the debtor State and
forming new State, twhether by fraud
force, or consent,) evade the payment OF tne
lust debts OF the old State, or any part there
OF. She cannot thus by her own separate
action, or the combined action of herself ant
the old State, extinguish, or even dacsde, tn'
claim of creditor without his consent
Each, OF. the new States thus formed, so lons
as they can be identified, even though the!
NAV each have. assumed new name, .sr
bouEd to the creditor for his uhole deot. =
long, then, as the identity of the original Stat
NAV remain, and the new State may be idenil
fed as part of the old, both are alike bounft
the creditor for the ,ehole debt. Both prio
10 the partition owed the same debt unde
one name; each after partition holds POI
tions of the goods and territory fornerl
bound to the creditor. for common deD