Shepherdstown register. [volume] (Shepherdstown, Va. [W. Va.]) 1849-1955, 1895-01-10
GIsNERAL. PRINCIPLES GOVERNING WEST
yIRGINIA'S LIABILITY.

| interest. The State government was the
active party in making this contract and
in providing the means for its perform
ance but it acted as the duly authorized
agent of all the citizens of the State.
The obligation of this contract, there
fore, rested upon all its citizens-on
those who resided in the territory out of
which West Virginia was afterwards
formed, as we'll as on those who con-
tinued to reside under the jurisdiction of
Virginia. The result of this obligation
was liability on the part Of all citizens
to contribute to the payment of the
debt, on such terms as should be fixed
by the State government pursuant to its
constitution and statutes.
The Federal Constitution prohibits the
States from passing any laws which will
impair the obligation OF a contract; and
any law which has such an effect is, to
that extent, null and void. 1t follows
that the law or ordinance under whose
authority the State of West Virginia was
formed out of territory belonging to Vir-
ginia could not destroy or impair the
obligation of those residing in that ter
ritory to contribute their share i'll the
payment of the Virginia debt. The sep
aration of the States did, however, have
a very material effect on the share Of
the debt which was justly chargeable to
the citizens of West Virginia, as we shall
presently see. By reason of that sepa-
ration, the whole debt became divisible
into two parts, for one of which Virginia
remained solely liable; while the obi
CATION to pay the other rested upon Viz
ginia and West Virginia jointly but this
will be demonstrated hereafter.
It is a familiar principle that one
party to a contract cannot by his sole act
vary its terms SO as to impair the rights
which the other party has acquired
Hereunder; if he has made promise
upon a valuable consideration, he can in
no wise omit or alter the performance of
that promise without the consent of the
party to whom it was made Moreover,
if he has made a promise jointly with
another, and each is bound for the entire
performance according to a given pro-
portion, nothing that he alone can do
will be allowed to cast any greater bur
den upon his joint promisor. Apply
these principles to the legislation of Vir-
ginia and West Virginia respectively
touching the debt, and what IS the re-
suit? 1t is all obviously of AL e,r barfe
character. The creditors have not given
their assent to it and their rights are not
impaired. On the other hand, neither
State has concurred i'll any statement of
its liability made by the other. If Nir-
ginia could not by her Funding Act bind
West Virginia TO pay one-third OF the
debt, as she attempted to do, no more
could West Virginia, by the Wheeling
Ordinance, bind Virginia to pay the
whole of the debt excepting the amount
actually expended in West Virginia
unless, of course, the law should fix that
liability upon her independently of the
Ordinance. 1t follows, then, that as all
this legislation was of no effect, the ques-
ton remains to be settled precisely as If
| aroCtn1 ~ other
words, the relative liabilities of the two
States, in so far as there is any joint lla-
bility, are to be determined upon precise
ly the same principles as if the separa-
ton of the States had but just now taken
place.
HOW FAR THE JOINT LIABILITY OF THE
TWO STATES EXTENDS.
Virginia, in spite Of the separation, re-
NAMED the same State-the same sover-
eignty-that had issued the bonds. To
her the bondholders were entitled to
look for payment of the whole; they
had no privity with West Virginia; they
never knew her in the transaction at all.
Whatever liability rested upon West
Virginia, then, was not to the bondhold-
ers directly; it was, and still is, La
bility to contribute to Virginia certain
share of what the latter was compellable
or compelled to pay to her creditors.
The provision of the Wheeling Ordi-
nance on the subject of the debt embod-
les plain fallacy, in so far as it seeks
to limit West Virginia S liability to the
amount of the loan expended within her
territory. This is the theory of assess
ments for local benefit" which is fire.
quently put in practice in towns and
cities. Under its operation those whose
property is especially benefited by the
construction of streets, sewers and the
like public works, are made to bear a
larger proportion Of their cost than falls
upon the general taxpayers. This the
ory, however, has never been applied IN
State affairs; indeed, its application
therein is prohibited by our constitution
al provision that taxation shall be uni
form, and that all property shall be
taxed in proportion to its value. As re-
CARDS the expenditure of State funds. the
theory would seem to be that all the
citizens are uniformly benefited by the
result; or more accurately, perhaps,
that inasmuch as all the citizens are
benefited to a certain extent, the law
will not undertake to estimate and dis
criminate between varying degrees OF
Individual or local benefit. In either
case the result is the same, namely, that
all citizens are required to contribute
to the cost of public works in proportion
to the value of their taxable property,
without regard to locality.
1t is plain, however, that in the divis-
ion of State, justice demands a modih
j.. r .t-:- .-;,,o,-Ia The basis of fhe