Virginia v. West Virginia
78 U.S. 39 (1870)

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U.S. Supreme Court

Virginia v. West Virginia, 78 U.S. 11 Wall. 39 39 (1870)

Virginia v. West Virginia

78 U.S. (11 Wall.) 39

Syllabus

1. This Court has original jurisdiction under the Constitution of controversies between states of the Union concerning their boundaries.

2. This jurisdiction is not defeated because, in deciding the question of boundary, it is necessary to consider and construe contracts and agreements between the states, nor because the judgment or decree of the Court may affect the territorial limits of the jurisdiction of the states that are parties to the suit.

3. The ordinance of the organic convention of the Commonwealth of Virginia, under which the State of West Virginia was organized, and the Act of May 13, 1863, of the said Commonwealth, constitute a proposition of the former state that the Counties of Jefferson and Berkeley and others might, on certain conditions, become part of the new state, and the provisions of the constitution of the new state concerning those counties are an acceptance of that proposition.

4. The act of Congress admitting the State of West Virginia into the Union at the request of the Commonwealth of Virginia, with the provisions for the transfer of those counties in the constitution of the new state and in the acts of the Virginia Legislature is an implied consent to the agreement of those states on that subject.

5. The consent required by the Constitution to make valid agreements between the states need not necessarily be by an express assent to every proposition of the agreement. In the present case, the assent is an irresistible inference from the legislation of Congress on the subject.

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6. The condition of the agreement on which the transfer of these two counties was to be made was that a majority of the votes cast on that question in the counties should be found in favor of the proposition.

7. The statutes of the Virginia Legislature having authorized the governor of that state to certify the result of the voting on that proposition to the State of West Virginia if, in his opinion, the vote was favorable, and he having certified the fact that it was so, under the seal of the state to the Governor of West Virginia, and the latter state having accepted and exercised jurisdiction over those counties for several years, the State of Virginia is bound by her acts in the premises.

8. The State of Virginia cannot under such circumstances be permitted to set aside the whole transaction in a court of equity on the ground that no fair vote was taken, that her own governor was deceived and misled by the election officers, with no charge of fraud or improper conduct on the part of West Virginia, nor can she withdraw her consent two years after the vote was taken and the transfer of the counties accomplished.

On original bill to settle the boundary line between the States of Virginia and West Virginia, the case as existing in well known public history and from the record being thus:

A convention professing to represent the State of Virginia which assembled in Richmond in February, 1861, attempted by a so-called "ordinance of secession" to separate that state from the Union, and, combined with certain other Southern states, to accomplish that separation by arms. The people of the northwestern part of the state, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the federal Union. The idea of a separate state government soon developed itself, and an organic convention of the State of Virginia, which in June, 1861, organized the state on loyal principles -- "the Pierpont government" -- and which new organization was acknowledged by the President and Congress of the United States as the true state government of Virginia -- passed August 20, 1861, an ordinance by which they ordained that a new state be formed and erected out of the territory included within certain boundaries (set forth) including within those boundaries of the proposed new state

Page 78 U. S. 41

the counties of &c. [thirty-nine counties being named]. These counties did not include as within the proposed state the Counties of either Greenbrier, Pocahontas, Hampshire, Hardy, Morgan, Berkeley, or Jefferson, but the third section of the ordinance enacted that the convention might change the boundaries described in the first section of the ordinance so as to include within the proposed state the Counties of Greenbrier and Pocahontas, or either of them, and also the other counties just above named, or either of them, "and also all such other counties as lie contiguous to the said boundaries or to the counties named," if the said counties to be added, or either of them, by a majority of the votes given &c., should declare their wish to form part of the proposed state and should elect delegates to the said convention &c. The name of the new state as ordained by the ordinance was Kanawha.

The convention provided for by the ordinance met in Wheeling, November 26, 1861, and made a "Constitution of West Virginia." Certain counties named, forty-four in number, "formerly part of the State of Virginia," it was ordained should be "included in and form part of the State of West Virginia." No one of the Counties of Pendleton, Hardy, Hampshire, Morgan, Berkeley, or Jefferson was among these forty-four. The constitution proceeded, in a second section:

"And if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the Counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia, and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia."

All through the constitution, as, ex. gr., in the fixing of

Page 78 U. S. 42

senatorial and representative districts, and of judicial circuits, provision was made for the case of these two sets of counties coming in, or of one set coming in without the other. A separate section ordained that:

"Additional territory may be admitted into, and become part of this state, with the consent of the legislature."

And it provided for the representation in the senate and house of delegates of such new territory.

By the terms of this constitution, it was to be submitted to a vote of the people on the first Thursday in April, 1862, and on a vote then taken it was ratified by the people of the forty-four counties first named, and by those of Pendleton, Hardy, Hampshire, and Morgan. But no one of the Counties of Berkeley, Jefferson, or Frederick apparently voted on the matter, owing, as was said by the defendant's counsel at the bar to the fact,

"that from the 1st of June, 1861, to the 1st of March, 1862, during which time these proceedings for the formation of a new state were held, those counties were in the possession and under the absolute control of the forces of the Confederate States, and that an attempt to hold meetings in them to promote the formation of the new state would have been followed by immediate arrest and imprisonment."

All this being done, the Legislature of Virginia, as reorganized, passed, on the 13th May, 1862, an act, in title and body, thus:

"An Act giving the consent of the Legislature of Virginia to the"

"formation and erection of a new state within the jurisdiction of"

"this state"

"§ 1. Be it enacted by the General Assembly that the consent of the Legislature of Virginia be, and the same is hereby, given to the formation and erection of the State of West Virginia, within the jurisdiction of this state, to include the Counties of Hancock &c. [forty-eight counties being named (being the forty-four first mentioned, with Pendleton, Hardy, Hampshire, and Morgan), but the Counties of Berkeley, Jefferson, or Frederick, not being included], according to the boundaries and under the provisions set

Page 78 U. S. 43

forth in the constitution for the said State of West Virginia and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861."

"§ 2. That the consent of the Legislature of Virginia be, and the same is hereby, given that the Counties of Berkeley, Jefferson, and Frederick, shall be included in and form part of the State of West Virginia WHENEVER the voters of said counties shall ratify and assent to the said constitution at an election held for the purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe."

"§ 3. That this act shall be transmitted by the Executive to the senators and representatives of this Commonwealth in Congress, together with a certified original of the said constitution and schedule, and the said senators and representatives are hereby requested to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union."

"§ 4. This act shall be in force from and after its passage."

Under this act, no elections apparently were held, and on the 31st December, 1862, [Footnote 1] Congress passed

"An Act for the admission of the State of "West Virginia""

"into the Union, and for other purposes"

"Whereas the people inhabiting that portion of Virginia known as West Virginia did by a convention assembled in the City of Wheeling, on the 26th November, 1861, frame for themselves a constitution with a view of becoming a separate and independent state; and whereas, at a general election held in the counties composing the territory aforesaid on the 3d of May last, the said constitution was approved and adopted by the qualified voters of the proposed state; and whereas, the Legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new state within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia and to embrace the following named counties, to-wit [the forty-eight counties mentioned in the above-quoted Virginia Act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the convention

Page 78 U. S. 44

and the legislature aforesaid have requested that the new state should be admitted into the Union, and the constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent state; therefore,"

Be it enacted &c., that the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatsoever &c.

The act contained a proviso that it should not take effect until after the proclamation of the President of the United States hereinafter provided for. It then proceeded to recite that it was represented to Congress that since the convention of 26th November, 1861, which framed and proposed the constitution for the said State of West Virginia, the people thereof had expressed a wish to change the 7th section of the 11th article of said constitution by striking out the same and inserting the following in its place. The article [on the subject of slavery] was then set forth. It was therefore further enacted that whenever the people of West Virginia should, through their said convention and by a vote to be taken &c., make and ratify the change aforesaid and properly certify the same under the hand of the president of the convention, it should be lawful for the President of the United States to issue his proclamation stating the fact, and that thereupon this act should take effect and be in force from and after sixty days from the date of the proclamation.

This proclamation President Lincoln did issue on the 20th April, 1863, [Footnote 2] reciting the act, with, however, a condition annexed reciting that proof of compliance with the condition, as required by the second section of the act, had been submitted to him, and in pursuance of the act declaring and proclaiming that the act should take effect, and be in force from and after sixty days from his proclamation.

Next in the history came certain acts of the State of Virginia,

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among them one passed January 31, 1863, and which, with its title, ran thus:

"An Act giving the consent of the State of Virginia to the"

"County of Berkeley's being admitted into, and becoming part of"

"the State of West Virginia"

"Whereas, by the Constitution for the State of West Virginia, ratified by the people thereof, it is provided that additional territory may be admitted into and become part of said state with the consent of the legislature thereof, and it is represented to the General Assembly that the people of the County of Berkeley are desirous that said county should be admitted into and become part of the said State of West Virginia, now, therefore,"

"1. Be it enacted by the General Assembly that polls shall be opened and held on the fourth Thursday of May next, at the several places for holding elections in the County of Berkeley for the purpose of taking the sense of the qualified voters of said county on the question of including said county in the State of West Virginia."

"2. The poll books shall be headed as follows, viz.: 'Shall the County of Berkeley become a part of the State of West Virginia?' and shall contain two columns, one headed 'Aye' and the other 'No,' and the names of those who vote in favor of said county becoming a part of the State of West Virginia shall be entered in the first column, and the names of those who vote against it shall be entered in the second column."

"3. The said polls shall be superintended and conducted according to the laws regulating general elections, and the commissioners superintending the same at the courthouse of the said county shall, within six days from the commencement of the said vote, examine and compare the several polls taken in the county, strike therefrom any votes which are by law directed to be stricken from the same, and attach to the polls a list of the votes stricken therefrom, and the reasons for so doing. The result of the polls shall then be ascertained, declared, and certified as follows: the said commissioners shall make out two returns in the following form, or to the following effect:"

" We, commissioners for taking the vote of the qualified voters of Berkeley County on the question of including the said county in the State of West Virginia, do hereby certify that polls for that purpose were opened and held the fourth Thursday of May, in the year 1863, within said county, pursuant

Page 78 U. S. 46

to law, and that the following is a true statement of the result as exhibited by the poll books, viz., for the County of Berkeley becoming part of the State of West Virginia, _____ votes; and against it _____ votes. Given under our hands this ___ day of _____, 1863;"

"which returns, written in words, not in figures, shall be signed by the commissioners; one of the said returns shall be filed in the clerk's office of the said county, and the other shall be sent, under the seal of the secretary of this commonwealth, within ten days from the commencement of the said vote, and the governor of this state, if of opinion that the said vote has been opened and held, and the result ascertained and certified pursuant to law, shall certify the result of the same under the seal of this state, to the governor of the said State of West Virginia."

"4. If the governor of this state shall be of opinion that the said polls cannot be safely and properly opened and held in the said County of Berkeley, on the fourth Thursday of May next, he may by proclamation postpone the same, and appoint in the same proclamation, or by one to be hereafter issued, another day for opening and holding the same."

"5. If a majority of the votes given at the polls opened and held pursuant to this act be in favor of the said County of Berkeley's becoming part of the State of West Virginia, then shall the said county become part of the State of West Virginia when admitted into the same with the consent of the legislature thereof."

"6. This act shall be in force from its passage."

Then followed, four days later, on the 4th of February of the same year, 1863, an act relating to the admission of several other counties, including Jefferson, thus:

"An Act giving consent to the admission of certain counties into the"

"new State of West Virginia upon certain conditions"

"1. Be it enacted by the General Assembly of Virginia that at the general election on the fourth Thursday of May, 1863, it shall be lawful for the voters of the district composed of the Counties of Tazewell, Bland Giles, and Craig to declare by their votes whether said counties shall be annexed to and become a part of the new State of West Virginia; also, at the same time, the district composed of the Counties of Buchanan, Wise, Russell, Scott, and Lee, to declare, by their votes, whether the counties

Page 78 U. S. 47

of the said last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the Counties of Alleghany, Bath, and Highland to declare by their votes whether the counties of such last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the Counties of Frederick and Jefferson, or either of them, to declare by their votes whether the Counties of the said last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the Counties of Clarke, Loudoun, Fairfax, Alexandria, and Prince William, to declare by their votes whether the Counties of the said last-named district shall be annexed to and become a part of the State of West Virginia; also, at the same time, the district composed of the Counties of Shenandoah, Warren, Page, and Rockingham to declare by their votes whether the Counties of the said last-named district shall be annexed to and become a part of the State of West Virginia; and for that purpose, there shall be a poll opened at each place of voting in each of said districts headed 'For annexation' and 'Against annexation.' And the consent of this General Assembly is hereby given for the annexation to the said State of West Virginia of such of said districts, or of either of them, as a majority of the votes so polled in each district may determine, provided that the Legislature of the State of West Virginia shall also consent and agree to the said annexation, after which all jurisdiction of the State of Virginia over the districts so annexed shall cease."

"2. It shall be the duty of the governor of the Commonwealth to ascertain and certify the result as other elections are certified."

"3. In the event the state of the country will not permit or from any cause said election for annexation cannot be fairly held on the day aforesaid, it shall be the duty of the governor of this Commonwealth, as soon as such election can be safely and fairly held and a full and free expression of the opinion of the people had thereon, to issue his proclamation ordering such election for the purpose aforesaid, and certify the result as aforesaid."

"4. This act shall be in force from its passage."

Under these two acts, elections of some sort were held

Page 78 U. S. 48

and the governor certified the same to the State of West Virginia, and that state thereupon extended her jurisdiction over the Counties of Berkeley and Jefferson, and still maintained it.

Next came an Act of the State of Virginia passed December 5, 1865:

"An Act to repeal the second section of an Act passed on the 13th day of May, 1862, entitled 'An act giving the consent of the Legislature of Virginia to the formation and erection of a new state within the jurisdiction of this state;' also repealing the Act passed on the 31st day of January, 1863, entitled 'An Act giving the consent of the State of Virginia to the County of Berkeley being admitted into, and becoming part of, the State of West Virginia;' also repealing the Act passed on the 4th day of February, 1863, entitled 'An act giving consent to the admission of certain counties into the new State of West Virginia, upon certain conditions and withdrawing consent to the transfer of jurisdiction over the several counties in each of said acts mentioned.'"

"Whereas it sufficiently appears that the conditions prescribed in the several acts of the General Assembly of the restored government of Virginia intended to give consent to the transfer from this state to the State of West Virginia of jurisdiction over the Counties of Jefferson and Berkeley, and the several other counties mentioned in the Act of February 4, 1863, hereinafter recited, have not been complied with, and the consent of Congress, as required by the Constitution of the United States, not having been obtained in order to give effect to such transfer, so that the proceedings heretofore had on this subject are simply inchoate, and said consent may properly be withdrawn; and this General Assembly, regarding the contemplated disintegration of the Commonwealth, even if within its constitutional competency, as liable to many objections of the gravest character, not only in respect to the Counties of Jefferson and Berkeley, over which the State of West Virginia has prematurely attempted to exercise jurisdiction, but also as to the several other counties above referred to,"

"1. Be it therefore enacted by the General Assembly of Virginia that the second section of the act passed on the 13th day of May, 1862, entitled 'An act giving the consent of the Legislature of Virginia to the formation and erection of a new state within the jurisdiction of this state' be, and the same is hereby, repealed. "

Page 78 U. S. 49

"2. That the act passed on the 31st day of January, 1863, entitled An act giving the consent of the State of Virginia to the County of Berkeley's being admitted into and becoming part of the State of West Virginia be, and the same is, in like manner, hereby repealed."

"3. That the Act passed February 4, 1863, entitled 'An act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions,' be and the same is in like manner hereby repealed."

"4. That all consent in any manner heretofore given or intended to be given by the General Assembly of Virginia to the transfer, from its jurisdiction to the jurisdiction of the State of West Virginia, of any of the counties mentioned in either of the above-recited acts be and the same is hereby withdrawn, and all acts, ordinances, and resolutions heretofore passed purporting to give such consent are hereby repealed."

"5. This act shall be in force from and after the passage thereof."

On the 10th of March, 1866, [Footnote 3] Congress passed a

"Joint Resolution giving the consent of Congress to the transfer of the"

"Counties of Berkeley and Jefferson to the State of West Virginia"

"Be it resolved &c., that Congress hereby recognizes the transfer of the Counties of Berkeley and Jefferson from the State of Virginia to West Virginia and consents thereto."

In this state of things, the Commonwealth of Virginia brought her bill in equity against the State of West Virginia in this Court on the ground of its original jurisdiction of controversies between states under the Constitution, in which it was alleged that such a controversy had arisen between those states in regard to their boundary, and especially as to the question whether the Counties of Berkeley and Jefferson had become part of the State of West Virginia or were part of and within the jurisdiction of the Commonwealth of Virginia, and the prayer of the bill was that it might be established by the decree of this Court that those

Page 78 U. S. 50

counties were part of the Commonwealth of Virginia, and that the boundary line between the two states should be ascertained, established, and made certain, so as to include the counties mentioned as part of the territory and within the jurisdiction of the State of Virginia.

The stating part of the bill was largely composed of the substance of four acts of the General Assembly of the Commonwealth, already presented at large in the statement, copies of them being made exhibits and filed with the bill.

The bill, in addition to the substance of these statutes, alleged that no action whatever was had or taken under the second section of the act of 1862, [Footnote 4] but that afterwards the State of West Virginia was admitted into the Union under an act of Congress and proclamation of the President, without including either the Counties of Berkeley, Jefferson, or Frederick.

It further alleged that an attempt was made to take the vote in the Counties of Jefferson and Berkeley at the time mentioned in the Acts of January 31 and February 4, 1863, [Footnote 5] but that, owing to the state of the country at that time, no fair vote could be taken; that no polls were opened at any considerable number of the voting places; that the vote taken was not a fair and full expression -- all of which was well known to the persons who procured the certificate of such election. It also alleged that it having been falsely and fraudulently suggested, and falsely and untruly made to appear to the governor of the Commonwealth that a large majority of the votes was given in favor of annexation, he certified the same to the State of West Virginia, and that thereupon, without the consent of Congress, that state extended her jurisdiction over the said Counties of Berkeley and Jefferson, and over the inhabitants thereof, and still maintained the same.

The State of Virginia, of course, in coming before this Court with this case, relied upon that clause of the federal Constitution which ordains that "no state shall, without the assent of Congress, enter into any agreement or compact with

Page 78 U. S. 51

any other state," and that one also which ordains that "the judicial power shall extend . . . to controversies between two or more states."

To the bill thus filed, the State of West Virginia appeared and put in a general demurrer. It was not denied that West Virginia had from the beginning continued her assent to receive these two counties.

Page 78 U. S. 53

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