In September, 1928, the commonwealth of Kentucky and the state of Indiana, by their respective highway commissions, entered into a contract for the building of a bridge across the Ohio river between Evansville, Ind., and Henderson, Ky. The contract was approved by the Governor, and as to legality and form, also by the Attorney General, of each state. The contract recited the acts of Congress and of the state Legislatures which were deemed to authorize the enterprise. Acts of Congress of July 11, 1916, 39 Stat. 355, 356; March 2, 1927, 44 Stat. 1337; March 3, 1927, 44 Stat. 1398, Indiana, Act of 1919, c. 53; Act of 1927, c. 10, Kentucky, Acts of 1928, chapters 172 and 174. The state of Indiana immediately began the performance of the covenants of the contract on its part, and thereupon nine citizens and taxpayers of Indiana brought suit in the superior court of Marion county in that state to enjoin the members of the highway commission and other officers of Indiana from carrying out the contract upon the ground that it was unauthorized and void.
The commonwealth of Kentucky then asked leave to file the bill of complaint in this suit against the state of Indiana and the individuals who were plaintiffs in the suit in the state court, seeking to restrain the breach of the contract and the prosecution of that suit, and for specific performance. In its return to the order to show cause why this leave should not be granted the state of Indiana said that it had 'no cause to show'; that the state intended ultimately to perform the contract, if performance were permitted or ordered by the courts in which the litigation over the contract was pending, but that it did not intend to do so until after that litigation had finally been disposed of favorably to its performance; that the state of Indiana had entered into the contract by virtue of authority of its own statutes and of the Act of Congress of March 2, 1927; that, as there was no court having complete jurisdiction over the parties and subject-matter, other than this court, the state yielded to the jurisdiction of this court, and that it was in the public interest that an early adjudication be had which would be final and binding upon all parties interested.
Leave being granted, the bill of complaint herein was filed. It set forth the contract and the pertinent statutes, the pendency of the Indiana suit (to which the commonwealth of Kentucky was not, and could not be made, a party), that the delay in the construction of the bridge would cause irreparable injury to the commonwealth of Kentucky, and that the complainant had no adequate remedy other than through this suit. The complaint further alleged that the northern approach to the bridge would rest on and extend over Indiana soil and the southern approach would be on Kentucky soil; that the state of Indiana as well as the commonwealth of Kentucky had full authority to enter into the contract under the state statutes cited, and that the contract was also authorized by the acts of Congress to which reference was made. The complaint was later amended to correct an inaccurate citation.
Separate answers were filed by the state of Indiana and by the individual defendants. The answer of the state of Indiana admitted that the allegations of the complaint were true. The answer then averred: 'The only excuse which the State of Indiana offers for failure to perform the contract set out in plaintiff's complaint is the litigation, mentioned in the complaint, instituted by her above-named co-defendants against the officers of the State of Indiana whose function it is to perform said contract. The resulting delay in performance of said contract is in breach of its terms, which contemplate immediate and continued performance.'
After stating that, as the validity of the contract had been drawn in question in the litigation in the state court, the state did not feel warranted in proceeding until there was a final adjudication establishing its right to perform, the answer added:
'The State of Indiana believes said contract is valid. If this honorable court shall grant the relief prayed against Indiana by plaintiff Commonwealth of Kentucky in either of its paragraphs of complaint, the State of Indiana will thereupon immediately proceed with the performance of said contract and will continue such performance until the objects of said contract shall have been fully attained as contemplated by the terms thereof.'