Brief for the United States — Wilson v. Shaw

Oe ‘ie a tout

‘ FILED.

OCT 27, 1906

Ae bh beck gra JAMES He McKENN

No.438, -———

nine Sepread Gourtaf te ait Sites

_ OcTOBER Tee 1906,

WARREN B. Witsow, ARPELLANT

LESLIE at: SHAW, Swicnerabr’ OF THE ‘Treasenr,

APPELLEE. ;

: ce ee h "

4 ra .

APPEAL From THE COURT OF APPEALS FOR, THE DISTRICT:

' OF COL LUMBLA,. S

BRIEF FOR THE catia STATES.

Inthe Supreme Gourt of the United States,

OcrospeR TERM, 1906.

Warren B. WILSON, APPELLANT,

Vv.

Lesuiz M. SHaw, SECRETARY OF THE

TREASURY, APPELLEE.

No. 43.

APPEAL FROM THE COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA.

BRIEF FOR THE UNITED STATES.

This bill was filed by the appellant to restrain

the Secretary of the Treasury of the United States

from paying out certain moneys to the Republic of

Panama and the New Panama Canal Company,

and also from issuing any bonds or borrowing any

money or issuing any warrants for the payment of

the expenses of the construction of the Panama

Canal, the bill alleging that the act of June 23,

1902 (32 Stats., 481), to provide for the construc -

tion of a canal connecting the waters of the Atlan-

tic and Pacific oceans has not been complied with,

and is unconstitutional. The Republic of Panama

and the New Panama Canal Company are also

11677—06—1

named as defendants, but service was had only on

the Secretary of the Treasury.

An order of the supreme court of the District

of Columbia sustaining a demurrer filed by the

Secretary was affirmed by the court of appeals,

and this appeal was thereupon taken.

I.

Complainant is without right to sue.

The allegation of paragraph 1 of the bill is:

That he is the owner of property of the

United States of America, subject to taxa-

tion by the United States of America, and a

taxable inhabitant of said United States of

America.

There is no averment that he pays to the United

States any taxes whatever. But if he is a tax-

payer he is not entitled to bring such a suit unless

he shows some direct and special injury to himself

above that suffered by others.

Grant v. Cooke, 7 D. C. Rep., 166;

State v. Thorson (S. D.), 33 L. R. A., 584;

1 Beach, Mod. Eq. Juris., secs. 641-642;

1 High on Injunction, sec. 9;

Georgetown v. Alex. Canal Co., 12 Pet.,

91, 99.

Furthermore, we submit that there is a distine-

tion between the interest of a taxpayer in money

of a State or county raised by direct taxation and

the interest of the compiainant in the sums here

appropriated by Congress.

- Re aes

In Miles Planting Company v. saisiosed (5 D.C.,

Apps., 147) the court said:

The power of Congress to pay bounties to

manufacturers or producers in order to en-

courage the manufacture or production of

any article has never been passed upon by

the courts. By the very nature of Federal

taxation and appropriations of public money,

questions respecting their validity are very

difficult to be raised. There is no simple

mode of challenge, as is the case in the

States, where the taxpayer, having a direct

interest, can invoke relief through injune

tion if need be.

Il.

The payments sought to be enjoined having been

made and thirty million dollars in bonds issued, of

which the court will take judicial notice, thisattempt

to restrain payment is largely a moot question,

which the court will not consider.

Mills v. Green, 159 U.S., 651.

American Book Company v. Kansas, 193

U.S8., 49, 52.

Cheong Ah Moy v. United States, 113 U.8.,

216.

Ill.

Title to the canal strip having been acquired,

this suit in effect seeks to restrain the Government

from improving its property. The United States

is therefore a necessary party.

4

It has not consented to be sued and can not be

sued without its consent.

Belknap v. Schild, 161 U.8., 10.

International Supply Company v. Bruce,

194 U. 8., 601.

Oregon v. Hitchcock, 202 U. 8., 60.

IV.

That this court will not attempt to enjoin the

enforcement by the Executive of a statute simply

because it is alleged to be unconstitutional *s too

well established to call for argument.

In Mississippi v. Johnson (4 Wall., 475), which

was an attempt to restrain President Johnson from

carrying out the provisions of the reconstruction

acts, this court said (p. 498) :

The single point which requires consider-

ation isthis: Can the President be restrained

by injunction from carrying into effect an

act of Congress alleged to be unconstitu-

tional? * ° *

Very different [from cases reviewed where

mandamus issued against secretaries to com-

pel them to do a merely ministerial act] is

the duty of the President in the exercise of

the power to see that the laws are faithfully

executed, and among these laws the acts

named in the bill. * * * The duty thus

imposed on the President is in no just sense

ministerial. It is purely executive and

political.

An attempt on the part of the judicial

5

department of the Government to enforce

the performance of such duties by the Pres-

ident might be justly characterized, in the

language of Chief Justice Marshall, as ‘‘an

absurd and excessive extravagance.”’

It is true that in the instance before us

the interposition of the court is not sought

to enforce action by the Executive under

constitutional legislation, but to restrain

such action under legislation alleged to be

unconstitutional. But we are unable to

perceive that this circumstance takes the

case out of the general principles which for-

bid judicial interference with the exercise

of Executive discretion. .

And said Judge Cooley, delivering the opinion of

the court in Sutherland v. The Governor (29 Mich.,

320, 329) :

Were the courts to go so far, they would

break away from those checks and balances

of Government which were meant to be

checks of cooperation, and not of antago-

nism or mastery, and would concentrate in

their own hands something at least of the

power which the people, either directly or

by the action of their representatives, de-

cided to entrust to the other Departments

of the Government.

The questions presented are for political and not

judicial determination.

In Georgia v. Stanton (6 Wall., 50) an injune-

tion was sought to restrain the Secretary of War

6

and others from carrying out the provisions of the

reconstruction acts, but tiis court said (p. 77) :

That these matters, both as stated in the

body of the bill and in the prayers for re-

lief, call for the judgment of the court upon

political questions, and upon rights not of

persons or property, but of a political char-

acter, will hardly be denied. For the rights

for the protection of which our authority is

invoked are the rights of sovereignty, of

political jurisdiction, of government, of cor-

porate existence as a State, with all its con-

stitutional powers and privileges. No case

of private rights or private property in-

fringed, or in danger of actual or threatened

infringement is presented by the bill, in a

judicial form, for the judgment of the court.

And in Mississippi v. Johnson (supra) the court

further said (p. 500) :

The Congress is the legislative department

of the Government; the President is the

executive department. Neither can be re-

strained in its action by the judicial depart-

ment; thongh the acts of both, when per-

formed, are, in proper cases, subject to its

cognizance.

The impropriety of such interference will

be clearly seen upon consideration of its

possible consequences.

Suppose the bill filed and the injunction

prayed for allowed. If the President refuse

obedience, it is needless to observe that the

court is without power to enforce its proc-

—" |

7

ess. If, on the other hand, the President

complies with the order of the court and re-

fuses to execute the acts of Congress, is it

not clear that a collision may occur between

the executive and the legislative depart-

ments of the Government? May not the

House of Representatives impeach the Presi-

dent for such refusal? And in that case

could the court interfere in behalf of the

President, thus endangered by compliance

with its mandate and restrain by injunction

the Senate of the United States from sitting

as a court of impeachment? Would the

strange spectacle be offered to the public

world of an attempt by this court to arrest

proceedings in that court?

These questions answer themselves.

Obviously the present case is not one in which

the performance of a purely ministerial act may

be controlled by the court. In Decatur v. Spaulding

(14 Pet., 497, 515), Chief Justice Taney said:

The head of an executive department of

the Government, in the administration of

the various and important concerns of his

office, is continually required to exercise

judgment and discretion. He must exer-

cise his judgment in expounding the laws

and resolutions of Congress, under which

he is, from time to time, required to act. If

he doubts, he has a right to call on the At-

torney-General to assist him with his coun-

sel; and it would be difficult to imagine why

a legal adviser was provided by law for the

11677—06—z

heads of departments, as well as for the

President, unless their duties were regarded

as executive, in which judgment and dis-

cretion was to be exercised.

8

¥

The treaty with the Republic of Panama com-

plies with the Spooner Act, if such compliance

is necessary.

It is contended by appellant that the act of

Congress of June 28, 1902 (32 Stat., 481), making

an appropriation for the purchase of the canal

strip ‘‘from the Republic of Colombia,”’ did not

authorize its acquisition from the Republic of

Panama.

We submit that all Congress wanted was the

control of a particular strip of ground and a satis-

factory title to specified property. It was not of

any importance to Congress from whom it obtained

these, provided it got a good title to them, any

more than such a thing would be of importance to

any other purchaser.

What would a business man think of an agent

sent to buy a farm from Smith for so much money

who should let the chance go by and report to him

that he did not buy the farm because he found that

he would have to buy from Jones, to whom the title

had been transferred, altho Jones was quite willing

to sell at the price named? He would never again

act as that business man’s agent.

No one can read the treaty with the Republic of

Panama without perceiving that the President and

the Senate understood that it was a compliance

with the Spooner Act concerning a treaty with

Colombia. |

Even the language of the treaty follows the lan-

guage of the act. Thus section 2 of the act author-

izes the President to acquire from the Republic of

Colombia ‘‘ perpetual control of a.strip of land.”

Article II of the treaty grants to the United States

‘in perpetuity the use, occupation, and control of

a zone of land.”’

Section 2 of the act provides for ‘‘ the right to

use and dispose of the waters thereon, and to ex-

cavate, construct, and to perpetually maintain,

operate, and protect thereon a canal,’ ete. Ar-

ticle IT of the treaty grants the right to the land

for the ‘‘construction; maintenance, operation,

sanitation, and protection of said eanal.’’

Article VIII of the treaty grants to the United

States the reversionary and other rights of Panama

in the property.of the New Panama Canal Com-

pany and Panama Railroad Company, which woulé

not have been done except in contemplation of the

proposed purchase of that property by the United

States.

Article X exempts from taxes ‘the canal, the

railways, and auxiliary works, tugs, and other

vessels employed in the work of the canal, store-

houses, workshops, offices,’ ete., which was a

10

promise to and for the United States evidently in

contemplation that all these things were to belong

to the United States after purchase from the com-

pany. Article XXII of the treaty expressly speaks

of ‘‘the canal, works, property, and rights held

by said companies under said concessions or other-

wise, and acquired by the United States from or

through the New Panama Canal Company,”’ and

the same article speaks further of the ‘*consum-

mation of the contemplated purchase by the United

States from the New Panama Canal Company.”

It can not be doubted that the property and

rights acquired or to be acquired by the United

States signified in the minds of the President and

the Senate the property and rights already acquired

or about to be acquired in pursuance of the Spooner

Act.

The treaty and all of its provisions would be

meaningless if it had not been understood that,

notwithstanding the change of sovereignty from

Colombia to Panama, the President remained au-

thorized by the Spooner law to acquire perpetual

control of that strip of land and the rights and

property of the canal company, and to thereafter

proceed to construct the canal.

We thus have the opinion of the President and

Senate, engaged in the solemn business of making

a public treaty, in confirmation of these views.

The President and the Attorney-General had it

in their power to ask Congress, with every prospect

RENDER CM Gn ete Siamese os i nikita ak Mee sees ot

11

of a favorable reception of such request, to amend

the Spooner law had they believed it necessary or

even useful to do so. Congress itself was fully

aware of the situation. Can it be that those who

voted for the Spooner Act and for the treaty with

Panama and for the act of April 28, 1904, were all

indifferent to the successful execution of the pro-

ject?) Anamendment of two lines would have suf-

ficed, and yet no one deemed it necessary to alter

the Spooner Act.

This court has frequently affirmed the principle

that statutes should be given areasonable construe -

tion and application. Thus, in United States v.

Kirby (7 Wall., 482, 486-487) , the court said:

All laws should receive a sensible con-

struction. General terms should be so lim-

ited in theirapplication as not to lead toin jus-

tice, oppression, or an absurd consequence.

It will always, therefore, be presumed that

the legislature intended exceptions to its

language, which would avoid results of this

character. The reason of the law in such

cases should prevail over its letter.

Again, in Blake v. National Banks (23 Wall.,

307, 320) :

It is impossible to believe Congress in-

tended to make this discrimination. It is

entirely unreasonable, and is not in harmony

with the well-known views of Congress on

the subject.

TOE CINEREA Te! ee ees

SATS See aun rseenerne:

12

Also, in Law Ow Bow v. United States (144 U.S.,

47, 59):

Statutes should receive a sensible construe -

tion, such as will effectuate the legislative

intention, and, if possible, so as to avoid an

unjust or an absurd conclusion.

See also In re Chapman (166 U.8., 661, 667).

So in Bate Ref. Co. v. Sultsberger (158 U.S.,

1, 37):

Undoubtedly the court, when endeavoring

to ascertain the intention of the legislature,

may be justified, in some circumstances, in

giving weight to considerations of injustice

or inconvenience that may arise from a par-

ticular construction of a statute.

In Chesapeake and Potomac Tel. Co. v. Manning

(186 U. 8., 245) :

But it is well settled that the courts

always presume that the legislature acts

advisedly and with full knowledge of the

situation. Such knowledge can be acquired

in other ways than by the formal investiga-

tion of a committee, and courts can not

inquire how the legislature obtained its

knowledge.

And again in Collins v. New Hampshire (171

U.S8., 30, 34):

In whatever language a statute may be

framed, its purpose must be determined by

its natural and reasonable effect.

And in Knowlton v. Moore (178 U.S., 41, 77): |

We are, therefore, bound to give heed to

the rule that where a particular construction

3 . ae = aaeiee _ |

13

of astatute will occasion great inconvenience

or produce inequality and injustice, that view

is to be avoided, if another and more reason -

able interpretation is present in the statute.

And see Jnterstate Commerce Commission v. Baird

(194 U.S., 38).

The spirit as well as the letter of a statute

must be respected, and where the whole

context of the law demonstrates a particu-

lar intent in the legislature to effect a cer-

tain object, some degree of implication may

be called in to aid that intent. (Durousseau

v. United States, 6 Cranch, 308, 314.)

Where the construction of the language

of a statute is doubtful, courts will always

prefer that which will confirm rather than

destroy any bona fide transaction or title.

The intention and policy of the enactment

should be sought for and carried out. Courts

should never indulge in nice grammatical

criticism of prepositions or conjunctions in

order to destroy rights honestly acquired.

(Griffith et al. v. Bogert et al., 18 How.,

158, 163.)

And it is well settled that, in interpreting

a statute, the court will not look merely to

a particular clause in which general words

may be used, but will take in connec-

tion with it the whole statute (or statutes

on the same subject) and the objects and

policy of the law, as indicated by its various

provisions, and give to it such a construe -

tion as will carry into execution the will of

the legislature as thus ascertained, accord -

ing to its true intent and meaning.

a

14

Neither will the court, in expounding a

statute, give to itaconstruction which would

in any degree disarm the Government of a

power which has been confided to it, to be

used for the general good—or which would

enable individuals to embarrass it in the

discharge of the high duties it owes to the

community—unless plain and express words

indicated that such was the intention of the

legislature. (Brown v. Dushesne, 19 How.,

183, 194-195.)

The duty of the court, being satisfied of

the intention of the legislature, clearly ex-

pressed in a constitutional enactment, is to

give effect to that intention, and not defeat

it by adhering too rigidly to the mere letter

of the statute. or to technical rules of

construction. * * * We ought, rather,

adopting the language of Lord Hale, to be

‘‘eurious and subtle to invent reasons and

means ’”’ to carry out the clear intent of the

law-making power when thus expressed.

(Oates v. National Bank, 100 U. 8., 239,

244.)

The prominent thought in these quotations is

that when the lawmakers pass a law to accomplish

a certain object the courts are to keep in mind the

object to be accomplished, and so read the act as

not to defeat but to further the accomplishment of

the object in view.

If the controlling and important thing in the

minds of Congress was to negotiate with Colom-

bia, for the sake of dealing with Colombia, instead

Ce ee ee ee ee eT Cee hy

ee

15

of to acquire the canal strip for the purpose of

building a canal on it, then it has had ample time

to express its disapproval of the action of the Ex-

ecutive, of which it was well aware. It has done

nothing of the kind. On the contrary, it past the

act of April 28, 1904 (33 Stat., 429), authorizing

the President, upon the acquisition of the prop-

erty, to pay to the Panama Republic $10,000,000,

as stipulated by article 14 of the treaty with that

Republic, to take possession of the canal strip,

provided that this payment should be made in lieu

of the indefinite « riation made in the third

section of the Sj) Act, and also provided for

the temporary gove»-.nent of the Canal Zone.

That act said that ‘‘upon the acquisition of the

property of the New Panama Canal Company”’

certain things should be done. Upon what aequi-

sition except that authorized by the Spooner law?

The President is authorized to take possession of

lands necessary or convenient for the construction,

ete., of the canal. What construction except that

authorized by the Spooner Act? And it speaks of

the construction of the canal as already provided

for.

{n short, the act of 1904 fully confirmed the

treaty with Panama and manifestly sanctioned the

negotiations, known to all the world, which had

just resulted, five days before the approval of the

law, in the purchase of the company’s property by

the United States and payment therefor, and sanec-

_ _ ad SOLE + CNET he *j tke I

16

tioned as well the payment of the specific amount

of $10,000,000 in lieu of the indefinite appropria-

tion made for the same purpose by the Spooner

Act.

Further, it is a well settled principle that the

interpretation of a statute by executive officials

whose business it is to act under it will not be dis-

turbed by the court except in cases in which the

proper interpretation is free fromdoubt. Itis need-

less to dwell upon the utility and wisdom of this

principle. The obviously disastrous consequences

of undoing the work of the executive branch of the

Government are recognized by the court.

It is needless to say that it is but seldom that

the executive officers act in one way when there is

no doubt that the law intends a different course.

Nor need it be added that the application of this

useful principle is especially to be made when the

executive officer who has acted is the Chief Magis-

trate and when his action has been deliberate and

based upon the opinion of the chief law officer of

the Government.

While theoretically possible it is hard to believe

that such action upon such advice would be con-

trary to the law when the proper interpretation of

the law was not a matter of ayy doubt.

The construction given to a statute by

those charged with the duty of executing it

is always entitled to the most respectful con -

sideration and ought not to be overruled

without cogent reasons. The officers con-

PERILS! IN CAINS a DR POR GAR i RE RAE ISIS ICE BO cape PY TE ACY — |

cerned are usually able men and masters of

the subject. Not unfrequently they are the

draftsmen of the law they are afterwards

called upon to interpret.

U.S. v. Moore, 95 U.8., 760, 763.

Heath v. Wallace, 188 U.§8., 573, 582.

The principle that the contemporaneous

construction of a statute by the executive

officers of the Government, whose duty it is

to execute it, is entitled to great respect,

and should ordinarily control the construe -

tion of the statute by the courts, is so firmly

embedded in our jurisprudence that no

authorities need be cited to support it. On

the faith of a construction thus adopted

rights of property grow up which ought not

to be ruthlessly swept aside unless some

great public measure, benefit, or right is

involved, or unless the construction itself

is manifestly incorrect. (Pennoyer v. Me-

Connaughy, 140 U.S., 1, 23.)

While, of course, no practice of a Depart-

ment can nullify an act of Congress, yet

such practice, if uniform and long con-

tinued, is a matter worthy of consideration

in determining its construction. So many

rights, it may be presumed, have been cre-

ated in reliance upon it that the courts will

hesitate to decide that the construction

thus practica..y asserted is erroneous, and so

overthrow all the titles depending thereon.

(Orchard v. Alexander, 157 U. 8., 372, 383.)

Counsel contends that nothing but an actual

cession of the strip would comply with the Spooner

SET AOR RE ON,

nate e as

18

Act. But section 2, upon which he relies, obvi-

ously does not contemplate a complete cession. It

says: ‘* That the President is hereby authorized to

acquire * * * perpetual control’? of the strip,

and the treaty, Article II, grants to the United

States ‘tin perpetuity the use, occupation, and

control”’ of the Canal Zone. This amounts toa

complete cession, and Article III grants all the

rights, powers, and authority of complete sover-

eignty ‘‘to the entire exclusion of the exercise by

the Republic of Panama of any such sovereign

rights, power, or authority.”’

The contention that, as all other grants in the

treaty are expressly made perpetual, the grant in

Article III is temporary because not limited in

time is at least singular. Obviously, all the grants

were for the same purpose and were to have the

same duration.

It is said we have not complied with the law

because the cities of Panama and Colon are not

included in the zone. The city of Colon is about

one-fourth of a mile across—a very insignificant

place in extent—and we get the zone, *‘ extending

from the Caribbean Sea to the Pacific Ocean,”

with this little city omitted, and, on the other end,

Panama, which has a larger population, but is very

compact and occupies a very small space. The

zone is much wider than the Spooner Act requires,

so that there seems to be a substantial compliance

with the law. Congress did not undertake to say

that there should not be a little indentation at

PT RR NAO eS Lt RO MY Sara OAR 8 ay Retyariygacr veg YoReg

19

either end for the cities of Panama and Colon.

Panama is the capital of the Republic and was the

capital of the province, and was ne+ intended by

Congress to be included within the zone.

It is said the grant in the treaty is void because

the zone is not defined; that it might be at various

places, and we could not arrest and try a man for

crime there, because we would not know whether

he was in or out of the zone.

This is a hypereritical objection. The treaty

contains numerous indications that the zone was

to be along the canal that the French company had

been building, and at or near the cities of Panama

ani Colon, because the treaty speaks of them—

excepts them—authorizes us to buy from the com-

pany—every indication that it was to be along or

near the old French company’s canal, which is

perhaps one-third finished. But that is not all.

The President executes the laws. This treaty is

the law, and he is bound to execute it. Panama

being interested, even if he could not execute it

altogether without consulting Panama, yet with

the consent of that Republic he could proceed to

delimit and mark off the zone. He is the one au-

thorized to locate the canal, and the zone extends

so many miles on either side of it. The locating

of the canal would fix the zone. He has author-

ized the governor of Panama to locate the bound-

aries of the zone, and the governor has delimited

the zone, with the cooperation of the Executive of

Panama. They do know where it is, and they do

.._. RC ERY TEP ILEE YEO: wey PONT Rn.

20

know where to arrest criminals, and they do arrest,

try, and punish them. So, undoubtedly, the treaty

intended the zone to be delimited in some way,

There is a way under the treaty to render the zone

certain, and it can yet be rendered certain, if it has

not been. The grant is therefore not void.

Grants of land to be thereafter identified and

made certain have frequently been upheld. (uth-

erford v. Greene, 2 Wheat., 196; Lessieur v. Price,

12 How., 59.)

We submit, moreover, that the treaty does not

stand or fall upon a determination of the question

whether by it there was such an acquisition of ter-

ritory as the Spooner Act contemplated. It is still

a treaty and the law of the land as much as is the

Spooner Act. It is as familiar a principle that

treaties may make changes in statutory laws as

that statutes may abrogate treaties. (The Cherokee

Tobacco, 11 Wall., 616, 621.) With the treaty so

clearly sanctioned by Congress in the act of 1904,

the whole transaction from beginning to end seems

to us so preeminently proper in every respect that

the contentions of appellant appear at least aston -

ishing.

As we have already seen, every act of Congress

should receive a reasonable interpretation and

should be interpreted to further instead of defeat

its purpose, but this particular act especially should

receive a very broad interpretation, for the reason

that it dealt with a very broad, complicated, and

21

delicate subject. It concerned a great interoceanic

highway which had been dreamed of for centuries.

It concerned a highway on a foreign isthmus. It

concerned a treaty with a foreign sovereignty over

the Isthmus. It concerned an appropriation re-

quiring the consent of both Houses of Congress

and a treaty requiring the concurrence of our

Senate and a foreign congress. It concerned a

purchase from a company whose title was sup-

posed to be very complicated and to involve a

long series of bond issues, bankruptey proceed -

ings, and other like matters. Could it be sup-

posed that Congress, in dealing with such a

delicate subject, or such numerous delicate sub-

jects, expected to have some little complication

that might arise defeat such a scheme for the

benefit of the country and the world at large?

May it not be supposed, on the contrary, that Con-

gress, in passing the law, rose to the height from

which difficulties and uncertainties and complica -

tions might in a general way be anticipated as

natural to occur? And is it not reasonable to ask

the court to rise to a similar height and ignore the

absolutely unessential fact that the sovereignty

from which we obtained the strip changed, so that

it became necessary to purchase from a new sov-

ereignty over the same strip of territory instead of

the original or former one?

Woh RUE AWGN T Re OT YUBA i ley oh Reali

Nay Hee ea Tar

LAM aie Sst 2 RTS TNA Ft joe hn

feet sd

Diicttricitcsinase rice 28

22

ve

The Spooner Act, the treaty with Panama, and

the construction of the canal are not unconstitu-

tional.

The contentions of counsel on this point seem

to require but a few words in refutation.

The Constitution provides for the making of

treaties. The power to acquire territory is no

longer questioned.

Within the Territories of the United States

Congress exercises the combined powers of the

General and State governments. That the people

of a State might construct a highway or canal will

not be denied. (Monongahela Navigation Company

v. United States, 148 U. S., 312, 334.) The Canal

Zone is not in a State, and, Panama having con-

sented, Congress can do as much there as in a

Territory.

The Court of Appeals well said (Rec., p. 22):

The construction of highways is the special

function and even the duty of the State, and

that function can not reasonably be denied

to the United States in places in which it is

sovereign and has exclusive jurisdiction.

If Congress, as an incident to its power to make

war, may purchase places for public use, erect

forts, arsenals, and navy-yards, and build military

roads (2 Story on Constitution, 5th ed., secs. 1274,

1275), why may it not also construct a canal for

|

23

the more convenient passage of its naval vessels

between Atlantic and Pacific coasts, and conse-

quently for the better protection of itself from

invasion?

Congress may, in exercising its power to regu-

late interstate commerce, construct, or authorize

individuals or corporations to construct, railroads

across the States and Territories of the United

States (California v. Central Pacitie Railroad Com-

pany, 127 U. S., 1), and may, directly or thru a

corporation created for that purpose, construct

bridges for the accommodation of interstate con -

merce by land. (Lurton v. North River Bridge

Company, 153 U. S., 525, 530.) The canal when

constructed will be an important roadway for

both interstate and foreign commerce.

Under the commerce clause Congress has power

over navigation (2 Story on the Constitution, sees.

1061, 1063) and removes obstructions to naviga-

tion. (Gilman vy. Philadelphia, 3 Wall., 713.) The

construction of this canal will be a very effective

and important removal of such an obstruction.

The canal will also be a post-road.

It is not necessary that the construction of the

canal should be authorized by the Constitution in

express language. The scope and extent of the

implied powers of Congress were discust by

Chief Justice Marshall in the great judgment in

McCulloch v. Maryland (4 Wheat, 316), by which

the power to incorporate a bank was demonstrated

24

and affirmed, notwithstanding the Constitution

does not enumerate among the powers granted that

of establishing a bank or creating a corporation.

Said Chief Justice Marshall:

‘*The Government of the Union, though

limited in its powers, is supreme within its

sphere of action,’’ ‘‘and its laws, when

made in pursuance of the Constitution, form

the supreme law of the land.’’ ‘‘Among

the enumerated powers of Government we

find the great powers to lay and collect taxes,

to borrow money, to regulate commerce,

to declare and conduct a war, and to raise

and support armies and navies. The sword

and the purse, all the external relations, and

no inconsiderable portion of the industry of

the nation are entrusted to its Govern-

ment.’’ ‘*‘ Where the law is not prohibited,

and is really calculated to effect any of the

objects entrusted to the Government, to

undertake here to inquire into the degree of

its necessity would be to pass the line which

cireumscribes the judicial department and

to tread on legislative ground.”’ (4 Wheat.,

423.)

Mr. Justice Gray, in the Legal Tender Case (110

U.S., 421, 489), fittingly remarked that—

A constitution, establishing a frame of

government, declaring fundamental princi-

ples, and creating a national sovereignty,

and intended to endure for ages and to be

adapted to the various crises of human af-

fairs, is not to be interpreted with the strict-

Fe reece ete : eoseiiele oer oe _-z

25

ness of a private contract. The Constitution

of the United States, by apt words of desig -

nation or general description, marks the

outlines of the powers granted to the na-

tional legislature; but it does not undertake,

with the precision and detail of a code of

laws, to enumerate the subdivisions of those

powers, or to specify all the means by which

they may be earried into execution.

It clearly follows that there has been no depar-

ture by Congress from its constitutional authority

and that the Court of Appeals rightly so held. Its

decision should be affirmed.

CuarLes W. RussExt,

Assistant Attorney-General.

GLENN E. Hustep,

Assistant Attorney.

Henry M. Hoyt,

Solicitor- General.

O