The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1911-03-09

! state Is superior. to the forms that it
would be no technical difficulty In max
Ing CONTRACT. by a constitutive ordi-
nance II followed by the creation OF
the contemplated state. Wedding va.
Meyier. 1872 u. S, a73. 6ss. And or the
other hand. there Is equally little ditii-
Guilty In making contract b. tho Con-
stltution of the new State, If It he APP
parent that tho instrument is not ad-
I dressed solely to those who arc TO be
/ subject to its provisions. but is in
tended TO be understood by the parent
/ state ana by Congress as embodyinG n
/ just term which conditions the parents
/ consent. There can be no question that
! such was the case with West Virginia
! As has been shown. tho consent OF tho
! LEGISLATURE of the restored state was
/ a. consent to the admission OF West
! Virginia under the provisions set forth
IN tho Constitution for the would be
+ state, and Congress gave It's sanction
only on the footing Of the same Con-
4 stituuon and the consent or Virginia
{ In the last mentioned act. These three
I documents would establish a contract
without more We may add. with ref
I erence to an argument TO which we
attach little weight. that they estab-
iish contract Of West Virginia with
4 the form of the debt or to It's holders.
and 1T Is obvious that Virginia had an
interest that 1t was most irnportan.
! ma. mat she should be able to protect.
r..
/: taken TO have promised to Virginia to
pay her share whoever might be the
persons to whom ultimately tho pay
ment was to be made
! We are Of opinion that the contract
esta blished as we have said is not
| modlhed or affected in any practical
| way By the preliminary suggestions
Of the Wheeling ordinance Neither
| the ordinance nor the special mode OF
/ ascertaining just proportion of tho
/ DEBT that 1t puts forward is mentioned
IN me Constitution OF West Virginia.
I consent. or in the act OF Congress by
! which West Virginia became A state.
inc ordinance required that copy o!
| the new Constitution should be laid be
7! fore Congress. but said nothing about
| the ordinance itself 1t Is enough 10
| refer to the circumstances in which the
! separation took place to show that Vir-
! ginia Is entitled to the benefit OF any
| doubt SO far as the construction OF the
| contract Is concerned Sec opinion of
Attorney General Bates to President
Lincoln Lincoln 10 op. AZ Gen. 1875. The
not throw on West Virginia proper
ton Of the debt that would be just a.
! the ordinance requires, or equitable,
| according to the promise of the Con
| stitution, unless upon the assumption
! mat interest on the public debt should
| be considered as part of the ordinary
expenses referred to in Its terms. That
| we believe would put upon West Wiz
i Einia larger obligation than the mode.
! that we adopt but we arc Of opinion
| that her share should be ascertained
IN different way. All the modes. how
| ever, consistent With the plain con
4 tract Of West Virginia. whether under
! the Wheeling ordinance or the Con
| stitution of that State. come Out with
! surprisingly similar results.
| 1t was argued, TO be sure. that the
1 debt of Virginia was incurred for local
| improvements, and that in such case.
even apart from the ordinance, ii should
/ pc divided according to the territory
| in which the money was expended. We
/ see no sufficient reason for the appli-
/ cation of such principle to this case.
| In form the aid was an investment 1t
I generally took the shape OF a subScrip-
! ton for stock in a corporation. TO
| make the investment a safe one the
| precaution was taken TO require as a
| condition precedent that two or three
| subscribed for by solvent persons fully
| able to pay, and that one fourth of the
! subscriptions should have been paid
/ up into the hands of the treasurer
| was lon behalf Of the whole State The
parties interested in the Investment
were the same wherever the sphere
| of corporate action might be. The
/ whole State would have got the gain
| and the whole State must bear the loss,
1 as IT does not appear that there arc
/ any stocks Of value on hand. II we
| should attempt 10 look farther many
/ OF the corporations concerned were
| enga ged In improvements that had
! West Virginia for their objective point,
I and we should be lost In futile detail
| II we should try TO unravel in each
| instance the ultimate scope Of the
scheme. It would be unjust, however,
! TO stop with the place where the first
! the purposc with which the enterprise
| was begun. All the expenditures had
the Ultimate good OF the whole State in
| view, Therefore. we adhere to our
\ "a i,,Ip
! OF the debt must be ascertained In Il
I different way. In coming to II VIC do
| but apply against West Virginia the
| argument pressed OH her behalf to az
.clude her liability under the Wheeling
| ordinance in like cases. BY the ordi-
| nance West Virginia was to be charged
1 with all State expenditures within the
/ limits thereof. But she vigorously
! protested against being charged witt,
/ any sum expended in the form OF a
/ purchase of stocks.
But again. II was argued that if this
| contract should be found to be what We
| have said, then the determination OF
| just proportion was left by the Con-
| stitutton 10 the Legislature of West
| the words OF the instrument it was
| only by legislation that just proper
/ ton could be flXed These arguments
| do not impress us. The provision in
| Virginia that the Legislature Shall
| ascertain the proportion as soon as
/ may be practicable was not intended
! to undo the contract in the preceding
| words by making the representative
and mouthpiece Of unc OF the parties
| the sole tribunal for its enforcement
1 1t was simply an elaboration and com
mand from supreme to subordinate
| authority to perform the promise as
| soon as might be and an Indication of
| the way. Apart from the language
/ used, what is just and equitable is a
| judicial question similar to many that
arise in private litigation and In no
| wise beyond the competence of a tri-
| bunal to decide.
| The ground now is clear, so far AS,
/! the original contract between the two
| States is concerned. The effect Of that
| is that West Virginia must bear iicr
| just and equitable proportion Of the