Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-11-13
snkcial Tslsarafn TO tbs Rso'

CHARLESTON, w. AZ, NoVemoeI -
Governor F.e II & has received notlh.
cation from the Treasury Department
at Washington that the amount appro-
priated by Act Of Congress 10 refund TO
West Virginia the amount OF the direct
.ax due her will not be paid but Will be
appropriated as set-oE against the
amount alleged TO be due from West
Virginia as her proportion OF the in-
debtedness OF the State OF Virginia To
the United States. Upon learning OF
this the REGISTER correspondent at
once called upon the Governor 10 know
the grounds upon which the payment
was refused.
The Governor explained the matter
and, at the request OF the REGISTER
correspondent, permitted him TO see the
correspondence between the State ana
the United States authorities on the SUD-
ject, which are given herewith In order
that the people Of West Virginia may
see the efforts that have been made by
the authorities of the State TO secure
the money, and the persistent reiusai
OF the United States authorities TO 90
ANYTHING that would tend to facilitate
ouVas,ne Vic money. Following
is the correspondence entire:
DEPARTMENT or JUSTICE,
WASHINGTON, ID. G., Aug. Z. 1891.
Hon. 4. B. Fleming, GOuernOr, Charleston,
w. Va:
IR:-Touching the question submitted
to me by the Secretary OF the Treasury,
with reference TO the right of set-off by the
United States against the claim Of your
State, for refunding Of the direct tax, /
harx - f~.
consideration. The argument made by the
Attorney General Of West Virginia, Mr..
Wilson and yourself, was much broader
than the question. Those arguments were
very largely upon question of fact, with
which have nothing TO do, namely, ought
the State OF West Virginia TO pay any por-
tion of the Indebtedness Of Old Virginia.
The language OF the constitution is ''an
equitable proportion Of the public debt OF
the Commonwealth Of Virginia prior 10
the first day Of January, in the year
eighteen hundred and sixty-onc, shall be
assumed by this State" That presents a
broad question Of fact, or, perhaps, ques-
tions OF mingled fact and law, upon which
this office never gives opinions. This has
been the rule from the foundation of the
Government.
Section 1853 of the Revised Statutes reads
as follows:
THE head Of any Executive Department
may require the opinion Of the Attorney
General on any questions Of law arising in
the administration Of his department
(See also ~ opinions of Attorneys General,
672, and other opinions there cited.)
The only question before me, then, Is,
does the right Of set-of exist II debt Is
found TO exists and that question, under
section 34s1 of the Revised Statutes OF the
United States, will, think, have 10 an
swer in the affirmative. Whether there is
such debt, and, If there be, what may be
its amount, are questions with which have
nothing TO do. Under these circumstances,
it seems 10 me that the whole case should
20 to the Court of Claims for adjudication,
where the law and the facts may be inves-
tigated, and the very right as between the
government and the State of West Virginia
may be adjudged. The Secretary OF the
Treasury has the right to refer the matter
10 the Court OF Claims, under the act OF
March Sd, 1888 (22 Statutes at Large, 4S5),
and the case being thus brought into the
Court of Claims under section 10 Of an Act
to provide for the bringing Of suits against
the government of the United States,
passed March Sd, 1887 "a Statutes at Large
500, the court might proceed TO final judg-
ment, as this clearly would seem 70 be
claim falling within the general Jurisdiction
OF that Court, as per section ] Of the same
Act, being claim founded upon law OF
Congress. AT the same time, as this is a
matter between State and general gov
erDment, in which il Is desirable, on ac-
count of the dignity Of both parties, and
their political relations 70 each other, that
all things should be done amicably, pre-
fer TO state the matter TO you before send
ing it back to the Secretary Of the Treas
ury, in order that you may make any sug-
gestions deemed proper with reference TO
the subject matter. II the case Is 10 De re-
ferred to the Court of Claims. while it Is
that il be done with your consent.
Il is probably better that that consent be
tacit, because, IL the reference Is under
section Il, of the Acts Of 1857, according to
= recent decision Of the Court of Claims
I'm re Billings v. United States, % Court
Of Claims. 1861, the conclusions OF the
Court would be merely advisory to the Sec
retary, whereas, ii is presumed IL would be
10 the interests of all parties that judg-
nent be rendered as provided by section
I3. / have not examined carefully the
matter, but it would be desirable, IL
that the State OF Virginia
should also be made party TO this suit, TO
the end that a full and final adjustment OF
he whole controversy may be reached.
Of course, IL the matter Is brought into the
Court Of Claims, It will be my pleasure, az
L seems to me 1t will be my duty, 10 ex-
pedite the case as rapidly as possible, and
10 this end would direct thar IL be given
precedence by the attorneys OF this Depart
nent. shall be glad II you will ADVISE
ne what your views are upon the subject
It an early day. =
In conclusion. permit mo TO say int
shrough the Courts only can q flunl dotDGt
Of this matter be TooDhbd An
opinion my me sither way, miGht moi, And
would not be final 1t y sp-